Adultery still has civil consequences; spouse can sue partner’s lover for compensation: Delhi High Court

The Delhi High Court recently held that a spouse can sue her partner's paramour and claim monetary compensation for interfering with their marriage and causing loss of affection and companionship. 

Justice Purushaindra Kumar Kaurav said that although adultery is no longer a crime, it can still have civil consequences and a person who suffers harm from the breakdown of their marriage may seek damages against a third party for causing that disruption. 

“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 observed in its order of September 15.

Thus, though the decision of the Supreme Court in the case of Joseph Shine decriminalised adultery, it did not create a license to enter into intimate relationships beyond marriage, free from civil or legal implications, the Court underscored.

It held that since the claim for damages in these cases is founded on the alleged acts of the paramour and not the spouse, the case would lie in a civil court and not family court. 

“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,” Justice Kaurav said. 

If the case proceeds, it could become the first in India to test the enforceability of alienation of affection claims in civil law.

Justice Kaurav rendered these findings while upholding the maintainability of a wife’s suit against a woman she accused of breaking her marriage. 

The plaintiff-woman married in 2012 and had twins in 2018, but problems began when the defendant joined her husband’s business in 2021. She alleged the defendant developed a close relationship with her husband, accompanied him on trips and became his regular social companion. 

Despite family intervention, the affair allegedly continued, with her husband openly appearing with the defendant before eventually filing for divorce. 

The wife then filed the present suit, seeking damages for emotional harm and loss of companionship, invoking the rarely applied tort of alienation of affection (AoA), a “heart-balm” claim rooted in Anglo-American common law.

The defendants challenged the suit’s maintainability arguing that the case was not maintainable before the High Court. The defendants insisted that disputes linked to marriage must be heard by family courts under the Family Courts Act. 

After considering the case, the High Court ruled that while Indian law does not expressly recognise AoA, courts have previously acknowledged it as an intentional tort in theory. 

“Unless the defendants show a statutory bar, a civil action based on tort cannot be rejected outright,” the Court held. 

It added that whether the defendant woman’s actions actually caused the marital breakdown would be decided at trial.

Therefore, the Court issued summons in the case. 

Advocates Malavika Rajkotia, Purva Dua and Mayank Grover appeared for the plaintiff.

Advocate KC Jain represented the defendant-woman. 

The husband was represented by advocates Prabhjit Jauhar, Tulika Bhatnagar and Sehaj Kataria.