Parties & their Capacities to Sue & be Sued in Tort Law: Overview

By | June 14, 2020
Capacities to Sue & be Sued in Tort Law

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Parties & their Capacities to Sue & be Sued in Tort Law | Overview


All persons or parties have the capacity to sue and be sued in tort law. Anyone who is of sound mind and is not disqualified by law can sue. As the law of tort was grounded in the procedure, it had many restrictions imposed upon parties to sue and be sued. With time and with the development in the law, many of these restrictions have given way to more liberal and progressive interpretations on the subject and the same has been rationalised to a great extent. Indian law follows the English law of tort in the matters of disability of parties to sue or be sued.[2]

Tort law has been defined by three characteristics, i..e.

  1. an act or omission in violation of the law
  2. legal injury or legal damage
  3. legal remedy by way of unliquidated damages.

A tort differs from crime, breach of trust, and a breach of contract. It differs from crime because it is grounded in redressal by compensation or damages and no punishment or fine. It differs from a breach of trust as that is an obligation in equity and tort is a common law wrong. It differs from a breach of contract as a breach of contract can be redressed by liquidated damages but a tort can be redressed by a suit for unliquidated damages. In the former, the rights and duties arise from the contract, which is an agreement between the parties, however, in the latter arises from a duty imposed on persons in general.[1]

Parties to Tort Actions

I. Married Women 

The common law did not permit a married woman to sue or be sued alone. If she was a proper party to the action, her husband had to necessarily be joined with her. This rule rested upon the fact that he was entitled to her property. Any recovery or injury to the wife’s person or estate, would belong to the husband and should have been prosecuted by him, either as a sole plaintiff or joint, with his wife as co-plaintiff.[3]

The Married Women’s Property Act, 1882, introduced an exception in favour of the wife under which the wife could sue her husband in an action for the protection and security of her separate property as if she were unmarried. More changes were introduced in England by the Law Reform (Husband and Wife) Act, 1962, by which the common law doctrine was abandoned and either spouse could now sue the other in the same manner as if they were not married. [4]

As regards third persons, the common law rule in England was that a married woman could not sue or be sued without joining her husband as a party. The law was altered by the Law Reform (Married Women and Tortfeasors) Act, 1935, under which she could now sue and be sued by third persons as if she were feme sole i.e. a woman without a husband.

Thus, in modern legislation, the common law theory of legal unity has been destroyed and the wife has full control and sole ownership of her property. She has been accorded the right to control her own time and carry on a separate business and therefore destroyed the reason behind the husband’s liability in her misdeeds.[5]

The scenario in India with respect to the application of this common law doctrine of the husband and wife constituting one person in the eye of the law is very different, as this doctrine does not prevail. Hence, a Hindu, a Sikh, a Jain, or a Muslim woman can sue or be sued in respect of her separate property without the interference of this doctrine.

There is no requirement of making the husband a party to the tort action against the wife. However, with respect to Christians, English common law is applied. This anomaly was also removed to an extent by the Married Women’s Property Act, 1874 after which the married women to whom the Act applies, can sue and be sued alone.[6]

Additionally, Article 14 of the Constitution of India embodies a guarantee against arbitrariness and unreasonableness by the application of which, marriage has no effect on the rights and liabilities of either of the spouses in respect of any tort committed by either of them or by a third party.[7]

II. Minor

A minor is liable in the same manner as a major in case he/she commits a tort. A minor can sue an adult but only through an adult acting on behalf of the minor. However, a violation of a contractual obligation cannot lead to an action in tort. A parent is liable for a tort which he directs his child to commit.[8] He is also unanswerable for his child’s tort when circumstances warrant the inference that he was a party to it, either by precedent approval or by continuing to enjoy its fruits with knowledge of the material facts.[9]

However, beyond this, his liability does not exist.[10] If however, a parent puts a dangerous instrument in the hands of his young child and ‘encourages and consents to its negligent use’, he may be held liable for the injurious consequences.[11] In this case, the parent would be equally liable had the youngster been the child of another person because it is accepted that the liability in such cases is not with respect to his relationship with the minor but upon his own exercise of due care.[12]

III. A municipality, centre or state government

They cannot be liable in tort for the nonfeasance or the misfeasance of its officers in the exercise of their powers. Therefore, the failure of a city council to pass ordinances prohibiting the use of sidewalks for bicycles or providing the suppression of nuisances, will not subject the authority to a tort action. The blunders of its judicial officers cannot be charged to the State’s account nor will the State be liable to respond in damages to injuries caused by mistaken plans of street sewers and similar work.[13]

IV. Corporations

These bodies have a distinct juristic personality and can be sued if any of its servants commit an act on behalf of the corporation. Private Corporations can sue and be sued for torts and the rules which govern such actions are substantially those which apply to like actions by or against natural persons.[14] Such corporations are entitled to sue for damages that are inflicted to it by a libel, provided the defamation is against it as an artificial person and not against its workers or agents as individuals.

It is now well settled that if a corporation has no certain body to be seized, it has a property which may be attached or levied upon. When charitable corporations are part of the government machinery of the state, they are also not liable for the torts of their officers and servants. A charitable organisation is not liable in tort for injuries done by physicians, employees or servants, when it has exercised due care in their selection, but it is liable for corporate misconduct and negligence.[15]

V. Lunatic 

When an action is committed by a lunatic person when such person is not in the condition of a stable mind, such a person cannot be sued. However, if an otherwise lunatic person commits an action during a period of time when he/she is in a stable mental condition, then such a person can be sued for tortious activity. For example, where a person ‘A’ has a disease because of which he becomes mentally unstable for chunks of time, however, is mentally stable when he commits battery against B, then A would be liable to be sued.[16]

VI. Alien Enemy

An Alien Enemy is a person belonging to a hostile country or a person residing in or carrying on business in enemy territory.[17] Under English law, an alien enemy cannot sue in his own right. He cannot maintain any action unless duly licensed by an Order-in-Council or unless such person comes into British Dominion under a flag of truce, a cartel, pass or some other act of public authority putting him in peace. Similarly, in Indian law, alien enemies that are residing in India with the permission of the Central Government may sue in any Court. However, an alien enemy residing in India without any such permission cannot sue in any Court.

VII. Foreign Sovereign

A Foreign Sovereign cannot be sued unless they submit themselves under the jurisdiction of the local government. Under the Civil Procedure Code, a Foreign Sovereign can only be sued in an Indian Court if permission from the Central Government is procured. Following are the conditions under which the Central Government gives permission:

  • If the Foreign Sovereign has instituted a suit in the Court against the applicant.
  • If the Foreign Sovereign trades within the local limits of the Indian Court
  • If the Foreign Sovereign’s immovable property with respect to which the applicant wants to sue, is located in India.

If the Central Government refuses to grant permission to sue the Foreign Sovereign, the Court cannot question the propriety of the order refusing consent.[18]

Similarly, foreign ambassadors and their families cannot be sued in India unless they waived off their privilege by submitting to the jurisdiction of the Court. They can only be sued in Indian Court with the consent of the Central Government.[19]


Since anyone who is of sound mind and not disqualified by law can sue, mentioned above are parties with respect to whom, there exist some restrictions as to who they can sue or whether can be sued. While the law with respect to married women has changed over time, other restrictions existing on various parties still remain.

Minors can be sued for their tortious actions unless it was the adult who coerced the minor to commit the act. A minor can sue someone in tort also, the only requirement being that someone would have to sue on his behalf. A Foreign Sovereign and ambassadors of foreign nations cannot be sued unless consent from the Central Government is obtained.

In such circumstances, if the consent is denied by the Central Government, the denial of consent cannot be adjudicated upon by the Court and such denial would be final. An Alien Enemy cannot sue unless residing in the country with permission from the Central Government.

A lunatic person can only sue and be sued for actions that were committed when such a person was in a stable mental space. Corporations, including private corporations, can sue and be sued just like natural persons can sue and be sued. A municipality, state government or central government, cannot be sued in tort for actions that were committed by its officers in the exercise of sovereign functions.

The capacity to sue and be sued is very essential in deciding whether a case stands before a court of law or not. The restrictions with respect to the capacity to sue and be sued exist in order to cater to factors like friendly relations with various nations (foreign sovereign and ambassadors), being in alignment with the foreign policy of one’s own nation (alien enemy), facilitating efficiency in maintaining law and order (municipality, state and central government), and fairness (lunatic person).

[1] POLLOCK, Frederick, and Philip Aislabie LANDON. 1951. Pollock’s Law of Torts … Fifteenth edition. By P.A. Landon. Pp. xliv. 480. Stevens & Sons: London.

[2] S.C. Thanvi, revised by Vishnu Konoorayar, “The Law of Tort”, Indian Legal System 2nd Revised Edition, The Indian Law Institute, 2006

[3] Supra, note 1

[4] Supra, note 2

[5] Martin v. Robinson, 65 III. 132, 16 Am. R. 578 (1872)

[6] Supra, note 2

[7] Article 14, The Constitution of India, 1950

[8] Hall v. Corcoran, 107 Mass. 251, 257 (1871)

[9] Dunks v. Grey, 3 Fed. 862 (1880)

[10] Moon v. Tower, 8 C. B. N. S. 611

[11] Johnson v. Glidden, 11 S. Dak. 237

[12] Chaddock v. Plummer, 88 Mich 225

[13] James v. Harrodsburg, 85 Ky. 191, 8 S. W. 135 (1887)

[14] Phil. W. & B. Ry. v. Quigley, 21 How. (U.S.) 202 (1858)

[15] Williamson v. Louisville Indus. School, 95 Ky. 251

[16] Supra, note 1

[17]  Scotland v. South African Territory Ltd (1971).

[18] The Code of Civil Procedure, 1908, Section 86

[19] Ibid

  1. Law of Torts; Notes, Case Laws And Study Material
  2. Pigeon Hole Theory – Salmond’s Theory of Law of Torts