The Delhi High Court recently in Shelly Mahajan v. Ms. Bhanushree Bahl held that a civil suit filed by a partner claiming damages from the “lover” of his or her spouse on the grounds of intentionally interfering with the marriage is maintainable in the eyes of law.

Summons were issued against the alleged paramour of the husband and it was asserted by the Court that whether her interference was intentional, actuated by malice or due to the voluntary conduct of the married person which led to the breakdown of marriage is something that is to be proved subsequently.

The Court laid emphasis on the concept of alienation of affection while upholding the maintainability of the said suit. Alienation of affection refers to a civil wrong that allows the spouse to sue a third party who has wrongfully interfered in the marital relationship.

The concept finds its basis in the idea that marriage is a legally protected relationship and intentional interference in it gives rise to liability.

Justice Purushaindra Kumar Kaurav while passing the order and issuing summons held that the concept of alienation of affection (AoA) has no statutory recognition in India and has been derived from the “heart-balm torts”, which is an Anglo-American Common Law concept which aims to allow a civil action seeking monetary damages for the end of a romantic or marital union.

While the order passed may be defensible as a means to provide redressal to a spouse who alleges deliberate and malicious interference, the concept of AoA raised profound objections which are as follows:

1. Gap between the acknowledgement and adoption

The order has not developed settled rules for the the establishment of interference in the marriage, quantification of damages, permissible defences and the interplay with matrimonial remedies such as divorce, custody of children, domestic violence, etc.

2. Forcing people to continue in unhappy marriages

Recognising a third-party tort with compensatory remedies can have a practical effect of discouraging separation or entering into relationships outside the conjugal union where the marriages are profoundly unhappy or dysfunctional. If the risk of the third party amounts to heavy liability for engaging in relationships with married persons, the result can lead to a big question on the “freedom of choices.” In the aforementioned case, the contention of the husband was that more than being a husband, he is first an individual vested with full rights and liberties under law and consequently he enjoys autonomy over his body and personal choices. He contended that the wife cannot under any circumstance seek to curtail or control the said freedom. To the said contention, the Court was also in agreement to the extent that personal autonomy must be protected and if the husband is found to have acted on his own volition, then no action will sustain against the third party in the relationship.

It also needs to be remembered that such suits only compensate for the monetary damages, but the remedy may not restore the marriage.

3. Potential misuse and moral policing

The concept of AoA may be employed vindictively against women or the vulnerable spouse as a means of extracting money in the name of damages. Moreover, if no guidelines or substantive law is laid down for the AoA, such suits may encourage defamatory or shaming litigation as a tool of harassment. The history of the “heart balm suits” has often depicted a worrying pattern of vendetta litigation which is often socially corrosive. The parties to a marriage are bound by the expectation of sexual exclusivity and voluntary sexual intercourse by either spouse with a person outside marriage is recognised as a valid ground of dissolution of marital bond. However, if it is employed against the third party involved with the spouse who voluntarily enters into the relationship outside marriage, it may lead to the potential misuse of the tortious remedies.

4. Commodification of intimacy

In order to pursue the suit of AoA, companionship and affection are treated as quantifiable legal goods. Therefore, emotions, personal autonomy and mutual agency of spouses are at the risk of being reduced to a loss that might prove to be heavily priced. On one hand, we talk about the constitutional values of dignity and sexual autonomy while on the other, the parties are exposed and vulnerable before the courts.

5. Overlap with other matrimonial jurisdictions

The defendants in the said case contended that the dispute arising in the present suit arises out of the marital relationship between the parties and falls within the jurisdiction of the family courts and Section 9 of the Code of Civil Procedure read with the provisions of the Hindu Marriage Act, 1955. Therefore, the present suit is barred under Section 9 of the Civil Procedure Code, 1908 read with Section 7 of the Family Courts Act, 1984.

This contention raises an important question on the overlapping of matrimonial jurisdictions, in the backdrop of conflicting precedents of the Delhi High Court. In Avneet Kaur v. Sadhu Singh, the Court held that the powers of the family court are broad and the jurisdiction extends to adjudicating disputes arising out of a marital relationship, while in Manita Khurana v. Indra Khurana, the Court held that disputes relating to marriage, if exclusively concerned with civil rights, fall under the jurisdiction of the civil courts. A functional test was laid down in the case of Geeta Anand v. Tanya Arjun, which provides that the family courts must remain confined to their intended domain of matrimonial causes and not encroach upon civil matters despite the parties sharing a marital relationship.

There is no settled precedent of the apex court on the said issue, eventually leading to overlapping of jurisdiction in matrimonial matters.

If the courts are to allow AoA claims in India, clear guidelines must be laid down to prevent the misuse and facilitate a harmonious construction between the personal (including sexual) autonomy of a married person and the sanctity of the institution of marriage. There must be high thresholds set for pleadings and proof with regard to the establishment of the interference of the third party as the proximate cause of the breakdown of marriage. Moreover, the liability must only arise where it is established that the third party had complete knowledge of the marriage and acted with malice in alienating the affection. Due regard must be given to the circumstances and reasons cited by the married person while entering into an adulterous relationship.

If evidence shows that the marriage was already irretrievably broken down or where one spouse had already initiated the divorce proceedings, then the AoA claims should be barred or heavily disfavoured by the courts. It must also be ensured by the courts that such suits are not employed as tools for revenge litigation. Lastly, the legislature must be directed to consider the codification of such torts and if found desirable, substantive provisions must be prescribed under the relevant statutes so as to avoid inconsistent outcomes.

The Shelly Mahajan order is significant since a long acknowledged doctrinal possibility has been converted into a procedurally actionable civil claim in India. But it must be exercised in the realm of strict thresholds and protective mechanisms so as to vindicate injustices in the form of filing of vindictive suits, forcing parties into unhappy cohabitation and commodification of intimate relationships. Therefore, exhaustive guidelines or substantive provisions must be laid down to limit the misuse and strike a balance between recognising genuine civil wrongs and protecting personal autonomy of married persons.

Dr Nidhi Sharma is an Assistant Professor at University Institute of Legal Studies (UILS).