Contents
Introduction
Post-Joseph Shine v. Union of India (2018), India decriminalised adultery under Article 21’s privacy guarantee. Yet, Delhi High Court’s Shelly Mahajan case revives the civil tort of “alienation of affection.”
From Criminal Adultery to Civil Wrong: The Legal Shift
- The Joseph Shine judgment struck down Section 497 IPC, holding adultery as a matter of personal morality rather than public penal concern. The Supreme Court declared that criminal law cannot police private sexual choices, emphasizing individual autonomy, privacy, and gender equality.
- However, it also clarified that adultery remains a civil wrong—a ground for divorce and possible civil consequences under tort law.
- The Delhi High Court (2025) in Shelly Mahajan v. Bhanushree Bahl has taken this opening to recognise the common law tort of “Alienation of Affection (AoA)”, allowing a spouse to sue a third party who intentionally and maliciously disrupted marital consortium.
The Tort of Alienation of Affection: Conceptual and Comparative Context
- Originating in Anglo-American “heart balm” laws, AoA allows a spouse to seek damages against a third party who caused the “loss of affection and companionship.”
- Globally, it has faded. Only six U.S. states, North Carolina, Utah, South Dakota, Hawaii, Mississippi, and New Mexico, retain the tort with strict proof requirements. Others abolished it as archaic, prone to misuse, and incompatible with gender-neutral marriage norms.
- In India, the Supreme Court in Pinakin Mahipatray Rawal v. State of Gujarat (2013) observed that “alienation of affection by a stranger, if proved, is an intentional tort.” Later, Indra Sarma v. V.K.V. Sarma (2013) extended its moral foundation, noting even children could have a cause of action if parental affection was alienated. However, these were obiter dicta, not enforceable precedents granting monetary damages.
Does Civil Liability Contradict Joseph Shine? — A Critical Analysis
- Harmony with Joseph Shine: The Joseph Shine verdict decriminalised adultery but did not immunise it from civil consequences. Imposing civil liability for wrongful interference does not punish private morality but protects the institutional sanctity of marriage and civil rights of the aggrieved spouse. Hence, it complements, rather than contravenes, Joseph Shine.
- Risk of Overreach: Yet, the Delhi HC’s recognition of AoA risks reintroducing state moral policing via civil law, indirectly reviving patriarchal notions of “marital ownership.” It may conflict with Puttaswamy (2017), where the Court underscored sexual autonomy as intrinsic to dignity and privacy.
- Constitutional Scrutiny: Under Article 19(1)(a) and 21, consenting adults have the right to intimate association. Holding a third party liable may infringe this liberty unless wrongful inducement or coercion is proven. Thus, the doctrine’s survival depends on narrowly defined mens rea (malicious intent) and causation (direct link between conduct and marital disruption).
Jurisdictional and Institutional Validity
- The Delhi HC clarified that family courts handle disputes between spouses, while AoA claims are civil torts against outsiders—thus, civil courts retain jurisdiction. However, absent legislative backing or statutory codification, such claims risk judicial overreach and inconsistency in enforcement.
- Reform could come via the Law Commission, defining tortious liability for “intentional interference in marital consortium,” balancing privacy, autonomy, and accountability.
Policy Implications
- Reinstating AoA may restore a measure of moral accountability in extramarital conduct, but it risks reducing human affection to a compensable commodity.
- Instead, restorative mediation and psychological counselling might better preserve marital dignity without monetising intimacy.
Conclusion
As Martha Nussbaum noted in “Frontiers of Justice”, dignity demands moral autonomy, not legal surveillance. India’s marital jurisprudence must safeguard compassion, not commodify affection, in balancing rights with responsibility.
