tort?
Querist :
Anonymous
(Querist) 15 November 2010
This query is : Resolved
is it possible to sue damages recovery for in law under the law of tort where wife and her parents falsely implicated to husband and his family u/s 498a of ipc and false allegations of misappropriation of stridhan.
R.Ramachandran
(Expert) 15 November 2010
Dear Anonymous,
Has the court already held that the case filed by the wife and her family u/s. 498A of IPC are false? Has the case attained finality?
aman kumar
(Expert) 15 November 2010
“A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation”- Salmond
The term ‘tort’ was introduced into the terminology of English Law by the French speaking lawyers and Judges of the Courts of Normandy and Angevin Kings of England. As a technical term of English law, tort has acquired a special meaning as a species of civil injury or wrong. Till about the middle of the seventeenth Century tort was an obscure term, at a time when procedure was considered more important than the right of an individual. This emphasis on procedural aspect for determining the success for a case continued for some 500 years, till 1852, when the Common Law Procedure Act was passed and primacy of substance over the procedure gradually gained firmer ground. Today the maxim as it stands is ‘ubi jus ubi remedium’, i.e. where there is right there is remedy.
Tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The word tort is derived from the Latin word ‘tortum’ which means twisted or crooked or wrong and is in contrast to the word rectum which means straight. It is expected out of everyone to behave in a straightforward manner and when one deviates from this straight path into crooked ways he is said to have committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. Though many prominent writers have tried to define Tort, it is difficult to do so for varied reasons. The key reason among this being, that the law of Torts is based on decided cases. Judges while deciding a case, feel their primary duty is to adjudge the case on hand rather than to lay down wider rules and hence they seldom lay down any definition of a legal term. Furthermore the law of tort is still growing. If a thing is growing no satisfactory definition can be given.
Tortuous Liability
It is pertinent to understand what is meant by tortious liability or rather the nature of tort law in order to understand its utility. To throw more light, the word tort evolved, from at one time very nearly passing into literary use as a synonym for wrong but after the middle of the seventeenth century, a practise began in the courts of the common law, of distinguishing between actions in ‘contract’ for breaches of contract and actions for other wrongs, and of using the word ‘tort’ as a compendious title for the latter class of actions. Since then it was usual to speak of ‘actions in contract’ and ‘action in tort’[1]. So a tort came, in law to refer to that particular class of wrongs for which an action in tort was recognized by the courts of common law as a remedy and to lose the generic sense of wrong which it may have helped in popular use.
Another interesting result of this association of the word with a form of action was that it came to refer also to the liability of a person who did not commit any tort or wrong, e.g. a master who is sued for the damages by the person injured by a tort committed by his servant[2]. This was because an ‘action in tort’ was the remedy against the master and in course of time and in response to new needs and conditions, the master was held liable to pay damages even though he had not committed any tort. So the law of torts is that body of law which deals with the liability of persons against whom an ‘action in tort’ would lie.
Tort as we know today has evolved over the centuries and has grown tremendously in countries such as the England, United States of America, and other progressive countries and to a certain extent in India. The main study in this article however would revolve around two aspects of this branch of law, firstly, whether the law of tort in India is unnecessary and secondly, whether the law of torts has been simply overlooked. Before moving on to the core subject it would be essential to fully understand the meaning of the term tort in the Indian context.
Tort Law In India
In India the term tort has been in existence since pre-independence era. The Sanskrit word Jimha, which means crooked was used in ancient Hindu law text in the sense of ‘tortious of fraudulent conduct’.[3] However, under the Hindu law and the Muslim law, tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India presently, is mainly the English law of torts which itself is based on the principles of the common law of England. However the Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application.
In this context, in M.C. Mehta v. Union of India[4], Justice Bhagwati observed-
“We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”
R.Ramachandran
(Expert) 15 November 2010
Dear Mr. Aman,
Thanks for your elaborate discourse on 'tort'.
But what is the answer to the query of Anonymous. Anonymous is interested in answer to his query not what is 'tort'.
adv. rajeev ( rajoo )
(Expert) 15 November 2010
if the court order is like that the complainant filed the case intentionally, in such cases suit can be filed.
Devajyoti Barman
(Expert) 15 November 2010
If you are acquitted from the cases you can file a case for malicious prosecution against them.
s.subramanian
(Expert) 15 November 2010
You have the relief in the form of a suit for damages for malicious prosecution.
Guest
(Expert) 15 November 2010
I do agree with Mr Devajyoti Barman and Mr. s.subramanian
