Torts affecting family relations

Legal provision

• No Indian Act creates these torts. They were part of English common law, and Indian courts did not develop them.
• Law Reform (Miscellaneous Provisions) Act, 1970 and Administration of Justice Act, 1982 (England): these abolished the actions in England.
• Motor Vehicles Act, 1988: in a death claim, loss of consortium is a head of compensation for the family. The fixed sum is Rs 40,000, under National Insurance v. Pranay Sethi.
• Personal laws and Bharatiya Nyaya Sanhita, 2023: family wrongs are dealt with by matrimonial law and criminal law.
• Articles 14, 15 and 21, Constitution of India: equality of spouses and personal dignity. The Supreme Court struck down the adultery offence in section 497 of the Indian Penal Code on this basis.

Meaning and definition

These were actions to protect a person's interest in his family relationships. The law treated the companionship and services of a wife, child or servant as a kind of property of the husband, parent or master, who could sue a third person who interfered.

Detailed explanation

Step 1: Loss of consortium

• Consortium means the benefits that one spouse is entitled to expect from the other: companionship, affection, comfort and help in the home.
• If a third person injured one spouse so badly that the other lost these benefits, the other spouse could sue for loss of consortium.
• At common law only the husband could sue. In Best v. Samuel Fox and Co. (1952), the House of Lords held that a wife could not sue for loss of her husband's consortium.
• In England the action was abolished by the Administration of Justice Act, 1982.

Step 2: Enticement and harbouring

• Enticement was the wrongful luring of a spouse away from the other, so that the other lost consortium.
• Harbouring was knowingly sheltering a spouse who had left, after learning that the other spouse objected.
• Both needed proof that the defendant was a real and active cause of the separation.
• They were abolished in England.

Step 3: Criminal conversation

• Criminal conversation was a husband's civil action for damages against a man who committed adultery with his wife.
• The name is misleading, because it was not a criminal prosecution.
• It treated the wife's fidelity as the husband's exclusive right. The action was abolished in England.

Step 4: Seduction

• A parent or master could sue a man who seduced an unmarried daughter or a female servant, for the loss of her services during pregnancy or incapacity.
• The woman herself had no claim. The action rested on the legal fiction that she was the parent's servant.
• This was seen as artificial and unfair, and the action was abolished in England.

Step 5: Why they are obsolete

• Each action treated a person as the property of another.
• Each reflected a society in which women and dependants were subordinate to the male head of the household.
• Modern ideas of equality between spouses have removed that basis.

Step 6: The Indian position

• India did not develop these actions in practice. The wrongs were dealt with by criminal and personal law.
• Adultery was an offence under section 497 of the Indian Penal Code, which punished only the man. In Joseph Shine v. Union of India (2018), a five-Judge Constitution Bench struck down section 497. It held that the section treated a wife as her husband's property and violated Articles 14, 15 and 21.
• Loss of consortium survives in India as a head of compensation in death claims. In National Insurance Co. Ltd. v. Pranay Sethi, the Constitution Bench fixed the sum for loss of consortium at Rs 40,000, to rise by 10 per cent every three years.

Don't confuse: the old actions and modern remedies

Common mistakes

• Treating these actions as live Indian law. They never developed in India.
• Saying that criminal conversation is a crime. It was a civil action.
• Forgetting that the wife could not sue for loss of consortium at common law.
• Forgetting that loss of consortium survives as a head of compensation in motor accident claims.
• Forgetting the reason for abolition: treating persons as property.

Apply it

Leading case laws

• Best v. Samuel Fox and Co. (1952)

  Facts. A wife claimed for loss of her husband's consortium after he was injured by his employer's negligence.

  Principle. The House of Lords held that a wife has no action for loss of consortium.

  Significance. The husband-only rule.

• Joseph Shine v. Union of India (2018)

  Facts. A challenge to section 497 of the Indian Penal Code, the adultery offence.

  Principle. Section 497 was struck down because it treated a wife as her husband's property.

  Significance. The idea behind criminal conversation has no place in Indian law.

• National Insurance Co. Ltd. v. Pranay Sethi (2017)

  Facts. The Constitution Bench settled how to work out compensation in motor death claims.

  Principle. Rs 40,000 for loss of consortium, with a 10 per cent rise every three years.

  Significance. Consortium survives as a head of compensation.

How to write this answer in the exam

Key points to remember

• The old actions treated a spouse, child or servant as property.
• Only the husband could sue for consortium (Best v. Samuel Fox).
• Criminal conversation was a civil action, not a crime.
• They were abolished in England and never developed in India.
• In India, loss of consortium is a head of compensation (Rs 40,000, Pranay Sethi).

Quick self-test

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