'Adultery decriminalisation not a license for affairs': Delhi High Court says spouse can sue partner's lover

Delhi High Court

The Delhi High Court has clarified that even though adultery is no longer treated as a criminal offence in India, it may still carry civil repercussions. In a recent judgment reported by Bar and Bench, Justice Purushaindra Kumar Kaurav observed that a spouse can pursue civil action against a partner’s lover and claim compensation for emotional distress and loss of companionship.

“Individuals may hold certain expectations from the sanctity of marriage. While the exercise of personal liberty is not criminal and therefore cannot attract penal sanction by the State as a matter of public offence, such conduct may nevertheless give rise to civil consequences. When one spouse claims to have suffered legal injury on account of the disruption of the marital relationship, the law, under tort, recognises that compensation may be sought from those alleged to have contributed to the breach of that sanctified bond,” the court said in its September 15 order.

The court said that the Supreme Court’s ruling in Joseph Shine, which decriminalised adultery, did not amount to a “license to enter into intimate relationships beyond marriage, free from civil or legal implications.” According to Justice Kaurav, a wronged spouse may still invoke civil law remedies through claims of damages.

In the case before the court, a wife accused another woman of wrecking her marriage. She had married in 2012 and given birth to twins in 2018. Trouble, however, arose in 2021, when the defendant joined her husband’s business. The wife alleged that the woman forged a close personal bond with her husband, travelled with him, and began accompanying him regularly in social settings. Family members attempted intervention, but the relationship continued, and the husband eventually filed for divorce after appearing publicly with the defendant.

The plaintiff then turned to civil law, seeking damages for the mental trauma and loss of companionship she claimed to have suffered. Her case relied on the rarely invoked tort of alienation of affection (AoA), also known as a “heart-balm” claim with roots in Anglo-American jurisprudence.

The defendant challenged the maintainability of such a suit, arguing that all disputes concerning marital relationships must go before family courts under the Family Courts Act. Her counsel, Advocate KC Jain, contended that the High Court lacked jurisdiction.

Justice Kaurav, however, disagreed. “The court is of the considered opinion that the instant lis is wholly regarding civil rights related to tort, and the Civil Court retains the jurisdiction,” he ruled, adding that “unless the defendants show a statutory bar, a civil action based on tort cannot be rejected outright.”

The court clarified that the case was not about adjudicating the marital relationship between the husband and wife, but about determining whether the alleged acts of the third party had caused a legally cognisable injury. The judge noted that Indian courts have, in principle, acknowledged alienation of affection as an intentional tort, even if not explicitly codified in law.

The High Court upheld the maintainability of the wife’s claim and issued summons in the matter. The trial, it said, would determine whether the alleged conduct of the defendant indeed led to the marital breakdown.

If pursued to its conclusion, this lawsuit could become the first significant test in India of whether alienation of affection claims are enforceable within civil law, the report said.