Delhi High Court Revives ‘Alienation of Affection’ Tort: Liability for Marital Disruption

Context

The Delhi High Court (HC) in Shelly Mahajan vs. MS Bhamashree Bahl & Anr reopened the debate on whether a third party can be held legally liable for interfering in a marriage and causing its breakdown.
The HC allowed summons in a wife’s civil suit seeking damages for “Alienation of Affection” (AoA) against her husband’s alleged affair partner.

This move has reignited discussion on whether such Anglo-American legal concepts, long abandoned elsewhere, have a place in Indian jurisprudence post the Supreme Court’s 2018 Joseph Shine judgment, which decriminalized adultery.

What is ‘Alienation of Affection’?

• The Alienation of Affection (AoA) tort, rooted in common law, allows a spouse to sue a third party for willfully interfering in their marriage and causing a loss of love, affection, or companionship.
• The concept assumes that marriage creates protectable relational interests such as consortium (companionship), support, and affection.
• India’s legal framework — particularly the Hindu Marriage Act, 1955 — provides remedies only between spouses (divorce, alimony, etc.), not against third parties.
• However, past cases like Pinakin Mahipatray Rawal vs State of Gujarat (2013) and Indra Sarma vs V.K.V. Sarma (2013) acknowledged the theoretical possibility of AoA-type claims if intentional interference by a stranger is proven.

The U.S. Experience with AoA

• AoA lawsuits still exist in a few U.S. states such as Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah, though many have abolished it as outdated and patriarchal.
• To succeed, a spouse must prove:
  1. Genuine love and affection existed in the marriage.
  2. The affection was lost.
  3. The third party’s malicious conduct caused the loss.
• Other U.S. states have repealed AoA laws, seeing them as inconsistent with modern marriage values and gender equality.

What the Supreme Court Said in Joseph Shine (2018)

• The Joseph Shine vs Union of India case decriminalized adultery, striking down Section 497 of the IPC.
• The Supreme Court declared adultery to be a private matter, not a criminal offence.
• The Court emphasized individual autonomy and sexual privacy, holding that consensual extramarital relationships cannot be punished by the state.
• Adultery remains a civil ground for divorce, not a crime.

Delhi High Court’s 2025 Interpretation

• The Delhi HC took a prima facie view that a spouse can sue the third party who interferes with their marriage for emotional and relational loss.
• It emphasized that while adultery is decriminalized, it may still constitute a civil wrong if it intentionally harms the marital relationship.
• However, the HC also acknowledged that for such a claim to stand, wrongful inducement or misconduct by the third party must be proven.
• The judgment suggests that while India does not have explicit statutes for AoA, civil tort actions remain open unless explicitly barred.

Jurisdictional and Legal Implications

• The HC clarified that family courts handle disputes between spouses (divorce, custody, etc.), but a civil court can hear claims against third parties for intentional interference.
• It draws a distinction between:
  • Matrimonial injury (between spouses) and
  • Legal injury (tort) caused by a third party.
• The ruling opens the door for independent civil claims parallel to family law proceedings, potentially changing how Indian courts approach marital harm and third-party conduct.

Ethical and Social Dimensions

• The case revives debates around privacy, autonomy, and moral policing.
• Critics argue that AoA claims risk reintroducing patriarchal notions of marital ownership.
• Supporters view it as protecting the sanctity of marriage and deterring deliberate interference by outsiders.