The story so far:
Recently, the Delhi High Court (HC), in a first-of-its-kind move in Shelly Mahajan versus MS Bhanushree Bahl & Anr, has opened the door for spouses to seek damages, in the civil sphere, from third parties who interfered in their marriage with malafide intention, causing its breakdown. Overruling the objections to the suit’s maintainability, the High Court issued summons in a wife’s suit seeking damages for Alienation of Affection (AoA), against her husband’s alleged affair partner. The decision revived an old Anglo-American concept, long abolished globally, putting the spotlight on a rarely tested legal idea in India. Seen as sidestepping the Supreme Court’s mandate in Joseph Shine versus Union of India, it also raises fresh questions on whether Indian civil courts can impose liability for third-party interference in marriage.
What is alienation of affection?
AoA is a term from common law referring to a “heart-balm” tort, which allows a spouse to sue a third party, usually the lover, for wilfully interfering in the marriage and causing ‘loss of affection and companionship’. The doctrine rests on the idea that marriage carries legal interests like consortium, intimacy, support and a shared life. Notably, the Indian legal framework neither codifies nor prohibits AoA, yet in Pinakin Mahipatray Rawal versus State of Gujarat (2013), the Supreme Court held that “alienation of affection by a stranger, if proved, is an intentional tort.” In Indra Sarma versus V.K.V. Sarma, the top court further noted that AoA could even give children a cause of action against a third party for alienating their father. However, the doctrine has never been used to award damages in India.
How do U.S. courts view AoA?
In the U.S., AoA lawsuits remain in only a few States, like Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah, while most others have abolished them over the past century as outdated or prone to abuse. In these States, for establishing a claim, the aggrieved spouse must prove three elements — (1) existence of genuine love and affection in the marriage; (2) its loss; and (3) that a third party’s malicious conduct caused the loss. In contrast, States that have abolished AoA, through legislation or court rulings, consider such claims to be against public policy or incompatible with modern views of marriage. Thus, U.S. courts’ stance on AoA varies, as a small number of courts still uphold the tort with strict proof requirements, while the majority reject it, treating marital breakdowns as private matters not suitable for compensation under tort.
What did Supreme Court decide in Joseph Shine’s case?
In Joseph Shine versus Union of India (2018), a five-judge Constitution Bench led by then Chief Justice of India (CJI) Dipak Misra decriminalised adultery, striking it from the Indian Penal Code while clarifying it remains a civil wrong and valid ground for divorce. In 2020, another five-judge Bench headed by former CJI Sharad A. Bobde dismissed review petitions as meritless. Earlier, the law punished a man with up to five years’ imprisonment for sexual relations with another man’s wife, but exempted the consenting wife from prosecution and did not apply it if the married man engaged in sexual relations with an unmarried woman or widow.
The 2018 Joseph Shine verdict held that consensual extramarital sexual relationships are no longer criminal, that is, no one can be jailed or fined for adultery. Striking down the colonial provision, the Supreme Court highlighted that adultery is not a crime if the husband connives or consents to his wife’s extramarital affair, thereby treating a married woman as her husband’s ‘chattel’. Emphasising that adultery is “absolutely a matter of privacy at its pinnacle,” the top court reasoned it should remain only a ground for divorce, not a crime. Thus, while decriminalised, adultery still carries civil consequences in family law or tort, as Joseph Shine did not expressly or impliedly foreclose such implications.
What did the Delhi High Court say?
In Shelly Mahajan, the Delhi High Court issued summons by taking a prima facie view that a spouse can sue the partner’s paramour for interfering in the marriage and seek compensation. The HC clarified that while Joseph Shine decriminalised adultery, it did not grant a licence for ‘extramarital relationships’ free of civil or legal implications. Matrimonial statutes like the Hindu Marriage Act, 1955, offer remedies between spouses (for example, divorce), but none against a third party intruding into the marriage, the court further stressed.
Since matrimonial laws like the Hindu Marriage Act, 1955, provide remedies only between spouses, a civil tort claim against a third party for such interference remains open, in the absence of a specific bar, the court further stressed. However, the HC also acknowledged an important limitation that there has to be wrongful inducement or misconduct by the third party that caused the marital breakdown. 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, the court noted.
The ruling clarified that while adultery is decriminalised and not punishable by the state, it still carries civil consequences in India. These include loss of consortium claims, compensation suits like the AoA case, and the personal remedy of divorce, where a betrayed spouse may petition the family court to dissolve the marriage on grounds of adultery. More importantly, the HC also laid down a three-fold test to decide such a claim. First, intentional and wrongful conduct by the paramour directed at alienating the marital relationship of the aggrieved spouse. Second, clear causation linking that conduct to a legally cognisable injury to the aggrieved spouse. Third, the loss claimed is susceptible to rational assessment.
Who has jurisdiction to decide the AoA claim?
One key issue before the Delhi HC was whether AoA suits should go for trial in family courts or civil courts. It held that family courts have exclusive jurisdiction over matrimonial causes between spouses (divorce, alimony, custody, etc.), but a claim against a third party for interfering in a marriage is an independent civil injury (a tort), not arising from the marital relationship itself. Therefore, a family court cannot adjudicate a tort claim against a third person, and the civil court retains the jurisdiction. The Court added that if a spouse has a protectable interest in the marriage, third parties bear a correlative duty not to intentionally and wrongfully alienate that affection.
The Delhi High Court’s ruling marks a significant step in recognising civil recourse for spouses affected by interference in marriage. It opens the door for carefully framed claims that respect both personal autonomy and marital rights, offering a path for justice where harm has been caused.
Shubham Shukla and Kartikey Singh are lawyers based in New Delhi.
Published – October 07, 2025 08:30 am IST
