Adultery decriminalised, not consequence-free: Delhi High Court recognises civil remedy against the paramour

The law of adultery in India underwent a major shift in Joseph Shine v. Union of India (2018), when the Supreme Court struck down Section 497 IPC as unconstitutional, decriminalising consensual extramarital relationships.

Yet, the recent Delhi High Court decision in Shelly Mahajan v. Ms. Bhanushree Bahl & Anr. CS(OS) 602/2025 & I.A. 21712-21714/2025 (Order dated September 15, 2025, by Justice Purushaindra Kumar Kaurav) clarifies that civil consequences persist.

The plaintiff (wife), married in 2012 with twin children born in 2018, alleged that her husband developed an intimate relationship with the defendant (paramour) through business and professional associations. The plaintiff alleged that in March 2023, she came across intimate conversations revealing the extramarital affair. Despite family intervention, the third party did not end the relationship, causing public embarrassment and prompting the husband to file for divorce in 2025. The wife responded with a civil suit claiming ₹4 crores in damages against the paramour for alienation of affection. Allegations included the paramour’s knowledge of the marital status, repeated interactions, joint trips, and public appearances with the husband, leading to a breakdown of the marriage.

The defendants argued:

1. Jurisdictional Challenge: The claim was barred by Section 7, Family Courts Act, 1984, as the matter pertained to matrimonial disputes.

2. Duplication of Proceedings: Issues of adultery were already raised in the pending divorce, making the civil suit duplicative.

3. Personal Autonomy: Individuals enjoy personal autonomy in their relationships, and there is no legal duty preventing them from personal associations.

Rejecting the objections, the Court ruled as follows:

Maintainability: The civil suit was not barred. The Family Courts Act does not oust civil jurisdiction over independent tort claims.

Civil Consequences: Joseph Shine removed only criminal liability, not civil accountability.

Elements of Alienation of Affection: To succeed, the plaintiff must prove: (i) intentional and wrongful interference by the defendant, (ii) causation linking such interference to the loss of consortium, and (iii) compensable loss (mental agony, humiliation, reputational harm, financial detriment).

Legal Context

Joseph Shine (2018): Decriminalised adultery but expressly did not foreclose civil consequences.

Family Courts Act, 1984 (Section 7): Provides broad matrimonial jurisdiction, but cannot be read as excluding tortious civil claims in all cases.

Section 125, CrPC: Continues to deny maintenance to wives “living in adultery,” showing that adultery retains statutory consequences in certain contexts.

Implications for Practitioners

Pleading Precision: Plaintiffs must detail malicious conduct with specific evidence (messages, travel records, witnesses, etc.).

Damages: Clear categorisation (loss of consortium, emotional distress, financial loss).

Evidence Management: Ensure the validity of digital communications.

Defence Strategy: Defendants will argue absence of intent, consensual conduct, or raise jurisdictional objections.

The judgment reflects a delicate balance: While adults are free to make consensual choices, the law will intervene where a third party intentionally damages the marital bond. However, frivolous suits won’t survive; only active, malicious interference qualifies. Therefore, adultery should be proved with vital evidence and cannot rest on mere allegations.

The Delhi High Court’s decision in Shelly Mahajan v. Bhanushree Bahl revives the concept of alienation of affection in Indian jurisprudence. It signals that while adultery is not a crime, it may still attract civil liability in appropriate cases. Therefore, adultery may not land you in jail, but might hit hard in rupees!

For litigators, this opens a new frontier in family tort interface. For society, it highlights that personal liberty must coexist with accountability for the harm caused to legally recognised relationships.

About the authors: Ekta Kapil is a Partner and Shaira Katoch is an Associate at DMD Advocates.

This article is intended for informational purposes only and does not constitute legal advice.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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