Ananya Misra & Mridul Krishna*
Introduction: The Tort of AOA and The Case of Shelly Mahajan
The Delhi High Court, in Shelly Mahajan v. Ms Bhanushree Bahl & anr., opened the door for spouses to seek damages from third parties who interfered in their marriage with mala fide intention, causing its breakdown. This decision revived the long-abandoned common law tort of Alienation of Affection (AoA).
Derived from Anglo-American common law, Alienation of Affection (AoA) is a “heart-balm” tort allowing spouses to seek monetary compensation from third parties for marital disruption. The tort originated in Winsmore v. Greenbank in England, but was abolished by the Law Reform (Miscellaneous Provisions) Act, 1970. Recognising the widespread misuse of such actions for extortion and public humiliation, the United States enacted heart-balm statutes in most states to forbid them. India lacks statutory recognition for the tort of AoA. While the Supreme Court acknowledged it as an intentional tort in Pinakin Mahipatray Rawal v. State of Gujarat, no Indian Court has ever permitted damages until the Delhi High Court’s judgment.
While the ruling marks a significant shift in Indian tort jurisprudence, it creates societal and constitutional anomalies by infringing on the constitutional guarantees of privacy, liberty, and individual autonomy. First, this article delves into the Court’s reasoning for recognising the claim of the tort of AOA. Secondly, it argues that reviving the tort of AoA represents a regressive judicial step, and thirdly, it concludes by providing alternative solutions to this antiquated tort.
Deconstructing the High Court’s Rationale
The Court acknowledged the abolition of the tort of AoA in England. However, it noted that English statutory law does not apply proprio vigore in India and that Indian Courts can develop distinct principles to fit our unique conditions. The Court allowed the suit to proceed for three reasons.
Firstly, treating marriage as analogous to a contract, the Court observed that breach of exclusivity of a spousal union constituted a breach of an accepted term, facilitated by mala fide intent of a third party. The Court held that this resulted in serious injury to the other spouse and allowed compensation to be sought under tort law from those who contributed to the breach of that sanctified bond.
Relying on this reasoning, the Court departed from the English position and held that a civil action for wrongful interference is sustainable, so long as the plaintiff can establish:
- intentional and wrongful conduct by the defendant directed at alienating the marital relationship of the plaintiff,
- clear causation linking that conduct to a legally cognisable injury to the plaintiff, and
- that the loss claimed is susceptible to rational assessment.
Secondly, the Court addressed the case of Joseph Shine v. Union of India (2018).It held that despite decriminalising adultery, the judgment did not create a “license” to enter into adulterous relationships, free from civil or legal implications. The Court held that if a third party’s influence severed the marriage, the aggrieved spouse can take recourse under civil law, through the tort of AOA.
Thirdly, the Court addressed the jurisdictional contention raised between the Family Courts and the civil courts. The Court relied on Geeta Anand v. Tanya Arjun, wherein the Delhi High Court had held that the cause of action does not automatically arise from a marital relationship, merely because the parties are related by marriage. The Court held the alleged wrongful interference by a paramour, resulting in the loss of companionship, to be an independent civil injury arising from tortious conduct and therefore is to be adjudicated by a civil court.
Legal Fallacies in Reviving the Tort of Alienation of Affection
The High Court’s ruling is presented as a progressive shield for the aggrieved spouse, but the judgment is riddled with jurisprudential contradictions and the return of the tort of AOA, clashes with modern ideas. The judgment comes at the cost of constitutional values of privacy and personal autonomy.
The core jurisprudential failure of the Shelly Mahajan ruling lies in its confusion of moral expectations with legal obligations. Jurist Wesley Hohfeld famously categorised this distinction. For a tort to exist, there must be a violation of a legally protected Claim-Right that imposes a correlative Duty on the defendant. In a marriage, while a spouse may have a moral or emotional expectation of affection, this cannot be legally enforced against the world at large. In the present case, the Court imposed a legal duty upon a third party not to interfere with that affection. Under Hohfeldian analysis, a third party possesses a Liberty (or a privilege) to engage in consensual interactions with another adult. By treating a spousal marital expectation as a right in rem, the Court improperly restricted the liberty of third parties based purely on morality.
The Court’s treatment of marriage as a contract, where a third party can be sued for “inducement of breach of contract”, is erroneous. Marriage is a legal status, not a business contract. Affection, companionship, and emotional fidelity are unquantifiable, subjective states of mind. Reducing emotional withdrawal to a commercial breach reduces human relationships to commodified transactions and forces courts to speculate on the monetary value of love and affection.
The Court’s decision on jurisdictional competence creates a procedural loophole. Section 7(d) of the Family Courts Act confers jurisdiction on the Family Court to try suit or proceedings which “arise out of a marital relationship“. The purpose of the creation of Family Courts was to ensure privacy and focus on reconciliation. But by categorising AoA as an “independent civil injury”, the Court allows litigants to sidestep the privacy of Family Courts. Private details of marriage can now be exposed in civil courts. This violates the spouses’ right and even the paramour’s right to privacy under Article 21 of the Constitution of India.
The Court’s reasoning also falters on causation. It assumes the paramour caused the loss of affection. This is harder to establish than the ruling acknowledges. Firstly, marriages rarely fail due to a single reason. Secondly, the involvement of a third party does not necessarily cause the loss of affection, as the breakdown of marriage could have preceded the extramarital relationship and even what caused the affair. If cause and effect are unclear, liability is based on speculation.
By assuming that the paramour caused the breakdown of marriage, the Court also places the blame on the third party for “enticing” the cheating spouse. The Court does not recognise the cheating spouse as an adult making an independent choice, which goes against Joseph Shine, wherein the Supreme Court affirmed sexual autonomy of married individuals. The tort of AOA is a ruse to revive moralistic control that was struck down in Joseph Shine. The difference between civil and criminal liability is only a matter of degree, so this shift to tort law is equally unjustified and unconstitutional.
Globally, AoA actions have been barred due to vindictive misuse. If Delhi High Court’s judgement leads to the tort of AOA taking root in India, it may encourage resentful spouses to drag third parties – including relatives or even therapists – to Court over failed marriages.
Historically, the tort of AoA stemmed from a patriarchal view of treating a wife as the property of her husband, and hence, extramarital affairs were considered as “stealing” the husband’s property. Such patriarchal thinking should not be revived through the tort of AOA. The tort is jurisprudentially rooted in conservative thought by treating the breakdown of marriage as an undesirable outcome and demanding fault-finding. In the era of embracing no-fault divorce, reviving a tort for “stealing” one’s spouse is not only unreasonable but also inconsistent with modern liberal ideas.
Proposed Reforms
The revival of AoA places Indian family law and tort jurisprudence in an unstable position. To prevent misuse of the tort of AOA for vindictive litigation, there is an immediate need for structural interventions.
Firstly, the authors suggest that a statutory ban, as in the United States and the United Kingdom, abolishing civil damages for alienation of affection is the need of the time to align Indian jurisprudence with a modern understanding of family law and a near-universal trend.
But at the same time, there is a need to recognise that there are genuine cases wherein, due to intentional conduct of a third party, a marriage can break down, causing emotional and mental distress to the other spouse. If the law provides no remedy for the same, it leaves the spouse with no recourse and a shambled marriage. Therefore, if the Courts wish to recognise some remedy for egregious third-party conduct, then instead of resurrecting a patriarchal view of tort law that treats affection as a commodity to be “stolen,” the judiciary should shift toward recognising the modern tort of Intentional Infliction of Emotional Distress (IIED). IIED is a tort that occurs when a person acts in a manner that intentionally causes another person to suffer severe emotional distress. This shifts the focus to proving whether the third party engaged in targeted conduct to deliberately cause severe emotional trauma to a family.
Thirdly, while shifting to the tort of IIED, Indian courts must establish a high evidentiary standard by implementing the Strict “But-For” Causation Test. This would require plaintiffs to prove their marriage was functional and intact but for the third party’s coercive enticement, which caused a loss of affection. Any evidence of a marriage that was already on the rocks would break the causal link and warrant a prompt dismissal of the case.
Lastly, instead of following the Delhi High Court’s reasoning and identifying the paramour’s conduct to constitute an independent civil injury, all claims arising from marital breakdowns must be held in in-camera proceedings under the protection of the Family Courts. This shields the parties from a public dissection of their marital life and ensures privacy, while being tried by civil courts.
Conclusion
The revival of the tort of AOA is a backward step to police emotions and private choices of consenting adults. The global trend toward the abolition of heart-balm torts is due to their proneness to misuse and violating constitutional guarantees of privacy and personal autonomy. If India wants a remedy for spouses deliberately wronged by third parties, the tort of IIED, bounded by strict causation and kept within the privacy of Family Courts, offers a better route. India should declare the suit and the tort of AOA to be not maintainable, keeping in line with the modern principles of personal autonomy and privacy.
* The Authors are fifth-year law student at Dr Ram Manohar Lohiya National Law University, Lucknow. They may be contacted at ananyamisra2004@gmail.com & krishna.mridul3108@gmail.com, respectively.
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle.