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Malice refers to any wrongful act done with a bad intention. When the act is lawful, it doesn't become unlawful because an evil motive has done the same. It is actionable if the defendant's act was done with an evil motive that becomes an unreasonable interference. It needs the absence of any reason, justification, or excuse behind the commencement of the act.

there are two kinds of malice in the law of torts:

1. malice in law

2. malice in fact


In the legal sense, malice means intentional wrongdoing. Any wrongful act done with intentions is known as malice in law. It doesn't justify any act done with evil or improper motives. Still, it simply explains " a wrongful act done internationally without justification or excuse ." it is the conduct done intentionally with any cause. We can call it implied malice also.


In Melia v. Neate, (1863) 3 F & F at p. 763,

Baron Bramwell said that malice in law is a kind of "disinterested malevolence ."The idea of giving injury without just cause or excuse is malice in law.

In shearer v. shields, 1914 A.C. 808, at 813,

Viscount Haldane described the law as " an individual who inflicts an injury to another individual in contravention of law is not allowed to say that he did it with an innocent mind. He must act within the law, or he must have the knowledge of the law. He will be guilty of the malice of law, although his state of mind is concerned so far, he acts innocently".


In the wider sense, malice in fact, means any wrongful conduct with an evil motive. When a defendant acts wrongful with the feeling of spite or ill-will, it is said to be done 'maliciously.'

Motive means the eventual reason for the conduct. Motive is different from intention, which relates to wrongful conduct itself.

For example, a person intends to commit a theft, but the motive of the theft is to buy food or to help someone.

A wrongful act doesn't become lawful just because the motive of the act was good. Similarly, a legal act doesn't become wrongful because of an evil motive.


In Bromage v. prosser, 1825 4 B. and C. 247

Bayley, j. called malice in fact, as an ill-will against any person, which was later called a vindictive feeling.

In Bradford corporation h. pickles, 1895 AC C. 587

The defendant excavated his own land, resulting in the water flowing in unknown channels from his lands to adjoining lands being discolored. It was done with the defendant's motive to pressure the plaintiff to purchase the defendant's land at a high price. In this case, the damage has been done by the defendant, at the same time, he was making lawful use of land. Thus, it was held that the defendant was not liable.


In Allen v. flood, [1898] A.C. 1

Flood and Walter were the employees on a ship liable to be discharged anytime. Other workers said they would go on strike if they did not get terminated from employment.

As a result, the flood and Walter got discharged. They were also told that they won't get employed again. Flood and Walter filed a case against Allen, the employer.

It was held that Allen had not violated any legal rights of both employees (flood and Walter). Hence, Allen's act was considered non- actionable; it doesn't matter how evil his motive might be.

In Town area committee v. Prabhu Dayal, A.I.R. 1975 All. 132

without complying with provisions of the UP municipality act, the plaintiff made specific construction. The defendants demolished the construction. The plaintiff sued the defendants as demolition is illegal as some of the officers were acting maliciously on getting the construction destroyed. The high court of Allahabad held that destruction of the illegal construction was acceptable and lawful.


The doctrine of transferred malice is not defined anywhere in the Indian Penal Code, but the essentials are given under section 301 of the Indian Penal Code.

According to section 301 of the Indian penal code," if a person does any act which he knows or intends that is likely to cause death, commits culpable homicide and by causing the death of any person, whose death he neither intends to nor knows by himself that by his act will cause the death of that person."

Culpable homicide here means that the person had the intention and knowledge to kill someone, but instead, he killed someone else.

For instance, 'A' intends to kill 'B' but kills 'D' instead of 'B .'Thus, he will be guilty of killing 'D .'The doctrine of transferred malice is applied here.


In some defamation cases, motive becomes relevant when qualified privilege is pleaded as a defense. This defense is available in the publications made in good faith. The presence of an evil motive negatives good faith, and the defendant can't avoid his liability. Malice may result in aggravation of damages.

In torts of deceit, conspiracy, and malicious prosecution, one of the essentials to be proved by the plaintiff is on the part of the defendant.

Causing personal discomfort by unlawful motive may turn a lawful act into a nuisance.

Unlawful interference with another person's lawful activities, in the case of Balak glass emporium v. United India insurance co. Ltd., A.I.R. 1993 Ker. 342. water from the upper story of a multi-storeyed building escaped to the lower floor, under the defendant's control, occupied by the plaintiff. The proof of ill-will was present between the plaintiff and the defendant. During the investigation, it was found that not only the tap of the upper floor was left fully opened, but also the outlet of the tank was closed. Thus, there was only one interference done by the defendant with wrongful intentions. Hence the plaintiff was held liable for the damages.


In simple words, malice is wrongful conduct or wrongdoing done with a bad intention. One can't save himself from his crime, which includes under section 301 of the Indian penal code. Transferring malice in the Indian penal code has punishments.

Some case laws related to the transfer of malice are:

  1. Regina v Mitchell, [1983] QB 741

  2. Rex v. saunders, 2 Plowd 473

  3. Rajbir Singh v. the State of U.P., L.Q. 1997 HC 6056


  1. (1863) 3 F & F at p. 763

  2. 1914 A.C. 808, at 813

  3. 1825 4 B. and C. 247

  4. 1895 AC C. 587

  5. [1898] A.C. 1

  6. A.I.R. 1975 All. 132

  7. A.I.R. 1993 Ker. 342

  8. [1983] QB 741

  9. 2 Plowd 473

  10. LQ 1997 HC 6056

This article is written by Gaurishtha of Guru Gobind Singh Indraprastha University.

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