Malice in Law and Malice in fact

Malice in Law and Malice in fact

Author: Poulomi Sen, IIT Kharagpur


“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”


The legal term “malice” is described as the state of mind that is concomitant with the intentional doing of a wrongful act without any justification or explanation. The term “malice” is concerned with the intent behind the commission of wrongful conduct or an offence. It also requires the absence of any reason, justification, or excuse behind the commission of such act[1]. As far as the opinion of Justice McCardie is concerned, the word “malice” is a subject of ‘a regrettable exuberance of definition’ and has associated the term with one committing an act with a “vindictive feeling”[2]. According to Parker C.J. “malice is a desire of revenge or settled anger against a particular person”.[3] Malice can be implied or expressed and this depends on the facts and circumstances of each case. The term “malice in law” in a broad sense can be defined as ill-will, spite or malevolence. Implied malice or malice in law means a wrongful act that violates a right and it does not necessarily attribute for malevolence.[4]

Malice in legal sense includes:

  1. Absence of legal justification or valid excuse or recognized mitigation and
  2. Presence of actual intent to cause the harm that resulted from the act or
  3. Presence of wanton and willful doing of act with the knowledge and awareness that such harm may be the result.

The difference between “malice in law” and “malice in fact” was first observed in the case of S.R Venkatraman vs Union of India[5], which is broadly discussed below.

Malice in Fact

“Malice in fact” pertains to those conducts or acts which are committed with a sense of hostility or animosity or has a backdrop of ill- motive, but the acts committed itself are legal. Malice in fact is also known as “actual malice” or “express malice”. The earlier concept of “improper motive” has been replaced by “malice in fact”.  It is often said that mere presence of ill will does not make a legal act, illegal and a good motive behind an illegal act does not make the act legal.

Case Laws regarding Malice in Fact

In the case of Town Area Committee vs Prabhu Dayal, it has been held that if the act was done is legal, then the motive is considered to be immaterial for the facts of the case.[6]

In the case of Bradford Cooperation vs Pickle[7], Lord Halsbury held that if an act is a lawful one, it cannot be rendered as illegal how severe the animosity may be. He further observed that ill motive or malice intention has very little significance in such cases.

In the case of Vishnu Basudeo v. T.H.S Pearse[8], the court declared that the legality of the act has to be taken into consideration. If the act is lawful, the motive behind commission of the act has the least significance.

Malice in Law

Malice in law refers to the conduct which is done intentionally without any sufficient or cause or valid justification. Malice in Law is often called as “implied malice”.

Case Laws regarding Malice in Law

In the case of Melia v. Neate, [9]Baron Bramwell observed that the term “malice in law” is associated with “disinterested malevolence”.

The term “malice in law” has been very well described in the case of Shearer Vs Shields[10]:

“A person inflicting injuries upon other person in contravention with the law cannot take the defense that he did so with an innocent mind.”

It can be concluded that an act committed in contravention of law will be considered as illegal irrespective of the motive behind its commission.

[1] Barron’s Law Dictionary, By Steven H. Gifis, available at,

[2] Br. Rly. Traffic and Electric Co., Ltd. v. C.R.C. Co., Ltd. [1922] 2 K.B. 260 at p. 268.

[3] Jonea v. Gioin (1713) Gilb. 185.

[4] Malice in Law and in Fact, 18 Can. L. Times 157 (1899), available at,

[5] S.R Venkatraman vs Union of India, AIR 1979 SC 49

[6] Town Area Committee vs Prabhu Dayal, AIR 1975 ALL 132

[7] Bradford Cooperation vs Pickle, [1895] AC 587

[8] Vishnu Basudeo v. T.H.S Pearse, AIR 1949 NAG 364

[9] Melia v. Neate, (1863) 3 F. & F. 757

[10] Shearer Vs Shields, 1914 AC 808