Malice in the Law of Torts

Malice in the Law of Torts


As like in criminal law where mens rea is important to determine a crime, in tort the state of mind of a person is not important or it acts as irrelevant except in certain cases because unlike criminal law, the focus in the law of torts is not on punishing the wrongdoer but vindicating the rights of the injured person.


It means spite or ill-will in the popular sense i.e. when an act is done with a bad intention is known as Malice. Hence an act or statement becomes malicious if used for purposes other than those sanctioned by the law authority.

The term ‘malice’ has been used in two different senses. In a legal sense it meansintentional wrongdoing, without a just cause or excuse or a lack of a reasonable or probable cause ‘and it is known as ‘malice in law’ and in another sense, it means’ an improper or evil motive’ and it is known as ‘malice in fact’.

In the case of Town Area Committee v. Prabhu Dayal AIR 1975 All 132, the court observed that “mere malice cannot disentitle a person from taking recourse of law for getting the wrong undone. It is, therefore, not necessary to investigate whether the action is motivated by malice or not.”

Malice in Law

It means that “a wrongful act was done intentionally without just cause or excuse.”

In the case of Shearer v Shields (1914) A.C. 808, it was held by the court that a person who inflicted an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law.

In the case of Smt. S. R. Venkataraman v Union of India AIR 1979 SC 49, the court held that the wrongful intention is presumed in case of an unlawful act done without just cause or excuse or for want of reasonable or probable cause

Malice in Fact

The term malice means bad or not proper or improper motive. Malice in fact or actual motive in which the defendant does a wrongful act with a feeling of spite, vengeance, or ill will, the act be said to be done ‘maliciously’.


“It is the act and not the motive for the act that must be regarded. If the act, apart from the motive, gives rise merely to damage with legal injury, the motive, however, reprehensible it may be, will not supplement that element”– Salmond

A motive is a person’s thinking about what they exactly want to do an act, in simple terms the purpose of the act’s commission. While in tort, it is generally irrelevant just like intention. The motive is the ultimate object with which an act is done, while the immediate purpose is the intention. Here the term motive means an ulterior reason for the conduct. For example, Mr. X theft to buy food for his hunger children.

But in general rule malice in the sense of improper motive is entirely irrelevant in the law of torts. In courts, it generally asked the defendant that what has done, not why he did it.

In the case of Bradford Corporation v Pickles (1895) A.C. 587, the court explains that a lawful act does not become unlawful merely because of an evil motive.

In the case of  Vishnu Basudeo V. T.H.S Pearse[ AIR 1949 NAG 364] and Town Area Committee V. Prabhu Dayal[ AIR 1975 All 132], the courts held that it is to be seen if the act is lawful, then the motive for the act is of little significance.

Torts where Malice is Relevant

  • Malicious prosecution, nuisance, conspiracy, deceit, and injurious falsehood.
  • Defamation
  • Assault, Battery, Trespass and False Imprisonment

Exception to Rule

In the case of deceit, malicious prosecution, injurious falsehood and defamation, where the defense of fair comment or qualified privilege is available. The defense of qualified privilege shall be accessible only if it has been published in good faith.

Difference Between Intention and Motive
The intention is the thing that you plan to do or achieve.The motive is a reason for doing something.
Some actions might not have an intention.Every action has some kind of motive.
A key element in determining criminal liability.Considered to be irrelevant in criminal law.
The Doctrine of Transferred Malice

Under the Indian Penal Code,1862, section 301 IPC talks about the transfer of malice in respect of murder.

The main essentials under section 301 IPC are:

1. Caused the death of a person

2. By doing an act with the intention or knowledge of causing the death of a person or

3. Causing bodily injury which could lead to death

4. Causing the death of another person instead of the person intended

The Penal Code embodies this principle as stated in the Supreme Court case State of Maharashtra v. Kashirao, Criminal Appeal No.  124 of 2003, If the killing takes place in the course of doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out.

In one of the earliest cases where this doctrine was applied in R v Latimer, (1886) 17 QBD 359, the defendant got involved in an argument with another person at a pub. The arguments between the two increased rapidly. The defendant took off his belt with an intention to hit the man but he missed. The person he was trying to hit only got injured. The smash with the belt got diverted in another direction and it hit an innocent woman who was standing by the side of the man. She got hit in her face and was severely injured. It was held by the court that the defendant would be liable for injuries inflicted upon the woman although he did not intend to cause injury to her. Here, the principle of transfer of malice was applied. The mens rea he had (the intention to hit the man) towards the man was transferred on the woman.

The doctrine of transferred malice applies to cases in which a person interfering in a dispute may be killed in the process. In the case of Gyanendra Kumar v. State of Uttar Pradesh, AIR 1972 SC 502, in a school committee meeting, B made remarks that the father and uncle of the accused were monopolizing all the seats of authority and that they were dishonest. The accused on hearing this went to his house and brought a gun, by that time the meeting had ended. The accused asked those who were near B to move away to fire a shot at B. B tried to escape and the deceased who was the maternal uncle of the accused rushed towards the accused to prevent him from his actions, the accused pushed him and fired at B, but the deceased came between the gun and B, and was shot in the back and died. It was held that the offence committed was murder under section 302 of the Indian Penal Code read with section 301.

Also Read: Law of Torts | Nature, Scope and Meaning

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