Spouse can seek damages from partner’s lover for ‘knowingly and intentionally interfering’ with marriage, rules HC

It was dealing with a petition by a woman who sought damages for ‘alienation of affection’ from her husband’s paramour on the ground that as the lawfully wedded wife, she — the plaintiff — was entitled to the affection and companionship of her husband, and that such affection was allegedly withdrawn on account of the “active and mala fide conduct” of the paramour.

The couple’s divorce proceedings are pending before a family court. A spouse establishing sexual relations outside of marriage has long been held as grounds for divorce — which in turn entitles one to provisions of maintenance.

To be sure, ‘alienation of affection’, also known as ‘heart balm’ action, is part of Anglo-Saxon common law. It does not have “much roots in this country”, as held by the Supreme Court.

In an order on September 15, Justice Purushaindra Kaurav noted that a married individual is free to pursue a consensual relationship and they cannot be penalised, but it doesn’t bar civil consequences.

“… any individual must recognise that actions carry effects and consequences, a principle that applies across all aspects of life. At times, those consequences extend beyond the individual actor and affect those closely connected with them… 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,” Justice Kaurav reasoned.

The plaintiff woman has contended that the defendant woman “knowingly and intentionally interfered with her marital relationship, thereby causing its breakdown”.

“… the present action, as framed, is directed not against the spouse but against defendant no.1, a third party, for her alleged conduct of engaging in an intimate relationship with defendant no.2 (husband) and thereby causing injury and loss of affection, which the plaintiff was entitled to. The claim for damages is founded on the alleged acts of defendant no.1 alone, and not on any relief arising from or within the matrimonial relationship between the plaintiff and defendant no. 2… 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,” the court held.

What does the law say?

As recorded by Justice Kaurav in the order, “To date, no Indian Court appears to have granted relief in a civil suit seeking damages solely on the basis of AoA, nor has any Court prescribed a procedure for adjudicating such a claim. Thus, while Indian jurisprudence has acknowledged the concept in principle as a possible tort, and the action by the aggrieved spouse to be maintainable, the courts have… not evolved any substantive law or remedies to support its enforcement in practice.”

But this suit, in effect, can open the door on this aspect — even as damages on the basis of alienation of affection has seen a growing obsolescence across global jurisdictions.

While dealing with a case of cruelty in marriage in 2013, the Supreme Court had observed that “alienation of affection”, also known as “heart balm” action — part of Anglo-Saxon common law — “has not much roots in this country, (and) the law is still in its nascent stage.”

“Such an action, of course, may not protect a marriage, but it compensates those who have been harmed,” the SC had further recorded.

It had noted that a few countries, and several states in the USA, have passed “legislation against bringing in an action for alienation of affection due to various reasons, including the difficulties experienced in assessing the monetary damages”.

The SC had, however, noted that mere association or acquaintance with a spouse is insufficient and there must be clear evidence of active and wrongful interference, with acts that are intentional and calculated to entice one spouse away from the other. It had said that passive involvement, such as a situation where the married person independently develops affection for another, without any act attributable to the third party, is not actionable.