Difference between Maintenance and Malicious Prosecution

Maintenance differs from malicious prosecution in as much as:

(1) In malicious prosecution the defendant is liable for instituting proceedings on his own behalf, but in maintenance he is liable for assisting another person in a proceeding.

(2) It applies to litigation actually pending, tort of malicious prosecution applies after the malicious proceedings are over.

(3) In malicious prosecution, malice forms essential ingredient; maintenanace may be devoid of malice.

(4) In maintenance it is immaterial whether there was reasonable and probable cause.

(5) It is equally immaterial whether the assitance is given to a plaintiff or defendant, because the grievance to the other party is the same in either case.

(6) It is also immaterial whether the party maintained is eventually successful or not because the mischief consists in the very act of officious intermeddling rather than in supporting an unfounded claim of defence.

(7) Maintenance can be committed only in relation to civil proceedings, malicious prosecution can be committed only in criminal proceedings.

The English Law of maintenance and champerty is not to enforce as specific law in India either in the mofussil or in the presidency towns. A bona fide and fair agreement to supply funds to carry on a suit in consideration of the lender having a share of the property sued for if recovered, it not to be regarded as necessarily opposed to public policy. But if the agreement is (i) extortionate and unconscionable; or (ii) made with improper, object e.g gambling in litigation or injuring others, it cannot be given effect to.

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