The Delhi High Court has ruled that although adultery is no longer a criminal offence, it continues to carry civil consequences, including the possibility for a spouse to sue the lover of their partner for monetary compensation. Justice Purushaindra Kumar Kaurav held that someone who suffers harm from the breakdown of a marriage may seek damages from a third party who has contributed to that breakdown.
In the case at issue, the plaintiff-wife, married in 2012 and with twin children born in 2018, alleged that the defendant (a woman) entered her husband’s business in 2021, formed a close personal relationship with him, accompanied him on trips, socialised as his regular companion, and that despite family efforts nothing stopped the affair. The husband eventually filed for divorce. The wife filed a suit claiming emotional harm and the loss of affection and companionship, invoking the doctrine known as the tort of alienation of affection. The defendant contended that the High Court did not have jurisdiction, arguing that disputes connected with marriage should be heard in a family court.
Justice Kaurav observed that Indian law does not expressly recognise the tort of alienation of affection, but that courts have acknowledged its theoretical existence. The High Court held that unless a statute expressly bars a civil action based on tort, such a claim cannot be rejected out of hand. The Court thus determined that a civil suit in a civil court is maintainable in this case. The suit must proceed in the trial court to examine whether the alleged conduct of the defendant actually caused the breakdown of the marital relationship. Summons were issued in the matter.
The Court emphasised that decriminalisation of adultery by the Supreme Court in Joseph Shine did not grant immunity to extramarital intimate relationships from civil or legal consequences. The Court said that, while personal liberty is not penalised in the criminal law any longer, it does not strip away civil responsibility if one’s actions contribute to harming a spouse’s legal rights. The Court also noted that the claim here was not against the spouse for adultery but against a third party—the paramour—meaning the claim lies in tort law and must be heard in civil courts, not family courts.
Thus the Delhi High Court affirmed that a spouse may sue their partner’s lover for compensation under civil law for causing injury to marital affection and companionship, even though adultery per se is no longer a punishable criminal offence.
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