Civil suit against spouse’s lover for alienation of affection maintainable: Delhi High Court

The matter escalated in March 2023 when the wife overheard and discovered intimate remarks and letters exchanged between the husband and the other woman. (AI image)

In a significant examination of an emerging tort principle in Indian law, the Delhi High Court has held that a civil suit seeking damages from a third party for interfering in a marital relationship and alienating a spouse’s affection is maintainable before a Civil Court. The Court made it clear that these claims are based on tortious interference and not matrimonial relief as such and thus do not come under the exclusive jurisdiction of Family Courts.The order was passed by Justice Purushaindra Kumar Kaurav in Shelly Mahajan v. Ms Bhanushree Bahl & Anr, where summons were issued to the husband and the paramour in a damages suit founded on the concept of “Alienation of Affection” (AoA). The Court denied that the preliminary objections to maintainability were sustained and that the plaint has revealed a civil cause of action that should be adjudicated in the trial.The Court articulated the governing principle:“….a spouse is held to possess a protectable interest in marital consortium, intimacy, and companionship, the correlative legal duty would be that any third party must not intentionally and wrongfully interfere with that relationship by acts calculated to alienate the affection of a spouse to the other spouse, which the other spouse is legally entitled to.”“At the same time, a spouse retains the inherent liberty to make personal choices. Where the conduct of a spouse is completely voluntary, not induced and uncoerced, that exercise of such liberty of one spouse will defeat third-party liability.”At the same time, it acknowledged autonomy in the marriage.Dispute Background and AllegationsThe suit was instituted by the wife (Plaintiff), seeking damages on the premise that she was entitled to the affection and companionship of her husband, who had withdrawn such affection on account of intentional conduct of another woman who had entered into a close relationship with him.The marriage was solemnized in 2012. The couple were blessed with twin children in 2018 and were also involved in shared professional engagements within the family enterprise. The relationship between the husband and the other woman (Defendants) developed after she joined a related venture and gradually became closely associated with him through travel and social interactions. This association continued despite her being aware of the subsisting marriage between the husband and his wife.The matter escalated in March 2023 when the wife overheard and discovered intimate remarks and letters exchanged between the husband and the other woman, indicating an extramarital relationship. This was followed by public association between the husband and the other woman despite confrontation and family intervention. In this backdrop, the husband-initiated divorce proceedings. In view of this, the wife instituted a civil action seeking damages for alienation of affection on the ground that there was deliberate interference by the third party which led to the breakdown of the marriage.Objections to MaintainabilityThe defendants opposed the maintainability of the suit on the grounds that the dispute was a result of a marital relationship and hence was exclusively within the jurisdiction of the Family Court under Section 7 of the Family Courts Act. It was further argued that the allegations of adultery were pending consideration in the matrimonial cases and that the suit was a parallel forum challenge. Additionally, the husband’s counsel used personal autonomy and the principles emerging from the Supreme Court’s decision decriminalizing adultery to argue against judicial interference in private choices.At the threshold, the Court dismissed such submissions, holding that the cause of action alleged was different from matrimonial reliefs including divorce and maintenance. Applying the “cause of action” test articulated in precedent, the Court stated that the suit was not a matrimonial dispute but concerned an independent tortious injury caused by a third party. It emphasized that jurisdiction of Civil Courts cannot be excluded unless expressly or necessarily barred.The Court observed that the claim was brought as compensation arising due to wrongful interference and not enforcement of marital obligations and therefore was not subject to Family Court exclusivity. The pendency of divorce proceedings did not preclude damages claim since remedies pursued in each forum were legally distinct.It held:“The relief sought in this suit, i.e., compensation for tortious interference, is distinct from the remedies pursued under the matrimonial law. Even if there is factual overlap, the Civil Court is competent to proceed…”Doctrinal Examination of Alienation of AffectionThe Court made an extensive doctrinal inquiry into the history of the tort, observing that Indian law does not specifically acknowledge alienation of affection and that the doctrine has its roots in Anglo-American common law ‘heart-balm’ actions. Referring to Supreme Court jurisprudence, it accepted that the interference with the marital consortium could technically be an intentional tort even though it recognized that the doctrine continues to be underdeveloped in India.The Court noted:“Although a third party may be instrumental in alienating the affection or companionship of a spouse, it is rare for the aggrieved spouse to pursue an action against such an intruder…. To date, no Indian Court appears to have granted relief in a civil suit seeking damages solely on the basis of AoA… the Courts have, thus far, not evolved any substantive law or remedies to support its enforcement in practice.”The Court additionally emphasized that while English common law principles may have persuasive value in shaping Indian tort jurisprudence, statutory developments in foreign jurisdictions do not apply proprio vigor, and domestic courts must evolve principles consistent with Indian constitutional and legislative frameworks.The Court, however, found that theoretical acknowledgment of the tort, and convincing common-law principles were sufficient to allow examination of such claims where pleaded facts disclosed intentional interference capable of causing compensable injury.Clarifying the analytical framework for such actions, the Court held that maintainability depends on whether the plaintiff can establish wrongful interference, causation, and measurable loss. It stated:“A civil action for wrongful interference in marriage is sustainable, so long as the plaintiff can… establish intentional and wrongful conduct… clear causation… and that the loss claimed is susceptible of rational assessment.”Elaborating further, the Court identified these requirements as forming the threshold structure governing such tort actions:

This articulation was the basis of allowing the suit to pass beyond threshold scrutiny.The Court further emphasized that recognition of autonomy following decriminalization of adultery does not extinguish civil consequences, stating:“The decision in Joseph Shine decriminalised adultery; it did not create a license to enter into intimate relationships beyond marriage, free from civil or legal implications… such conduct may nevertheless give rise to civil consequences.”By striking a balance between the personal freedoms and social norms, the Court saw marriage as a social and legal institution associated with the norms of exclusivity. It observed that although individual liberty safeguards intimate decision-making against criminal law, civil law could still acknowledge injury that results about the violation of obligating relationship in the event of third-party intervention being claimed.It also reiterated that liability would not arise if the spouse acted entirely independently:“Where the conduct of a spouse is completely voluntary… that exercise of such liberty… will defeat third-party liability.”However, factual determination of voluntariness and inducement requires trial evidence and cannot be resolved at the summons stage.The Court therefore held that the plaint disclosed a civil cause of action grounded in alleged tortious interference distinct from matrimonial remedies and not barred by Section 7 of the Family Courts Act. Finding no statutory exclusion of jurisdiction and noting that the issue required evidentiary adjudication, it directed issuance of summons to the defendants while reserving their right to seek rejection of the plaint at an appropriate stage.CS(OS) 602/2025 & I.A. 21712-21714/2025SHELLY MAHAJAN vs MS BHANUSHREE BAHL & ANR.For Plaintiff: Ms. Malavika Rajkotia, Ms. Purva Dua and Mr. Mayank Grover, Advocates.For Defendants: Mr. K.C. Jain, Advocate for D-1, Mr. Prabhjit Jauhar, Ms. Tulika Bhatnagar and Mr. Sehaj Kataria, Advocates for D-2.(Vatsal Chandra is a Delhi-based Advocate practicing before the courts of Delhi NCR.)