Quantifying Companionship: The Paradox of Monetary Damages in Alienation of Affection Cases

*by Yutika Jain

INTRODUCTION

The tort of alienation of affection (AoA), also referred to as ‘heart balm action’, is an Anglo-Saxon common law tort which based action against third parties guilty of tortious interference with the marital relationship. Typically, a heart-balm action is a civil remedy where the aggrieved party seeks monetary compensation for the termination or disruption caused to their romantic or marital relationship.

The essence of the tort lies in intentionally enticing or influencing one spouse to abandon the affection, companionship, and support owed to the other. The aggrieved spouse may seek monetary damages for the emotional distress, humiliation, or loss of marital happiness suffered due to such interference. The objective behind the damages is to preserve marital harmony by deterring wrongful interference, and saving the marital tie. The law imputes that since the spouses have a valuable interest in the married relationship (such as, marital intimacy, companionship, support, mutual affection, welfare of children etc.), the marriage ought to be protected against any such third-party interferences.

The Apex Court in Indra Sarma v. V. K. V. Sarma, observed that where a woman knowingly develops a relationship with a married man, and encourages the bigamous relationship, such conduct amounts to commission of an intentional tort, i.e. interference of a third party in the marital relationship by alienating the husband from his spouse and children. The Court noted that such interference results in loss of marital companionship, consortium, and spouse’s familial association, and therefore, a cause of action lies with both, the wife and children. The Court however restricted its view in assessing AoA as a standalone tort/ settled cause of action, and demanded legislative interference to address the same. 

Through providing monetary damages, the tort seeks to balance two compelling interests; firstly, to protect the sanctity of marriage and aggrieved spouse’s emotional interest and secondly, to not treat the spouse as a property.

ELEMENTS OF THE TORT

For a person to be guilty of AoA, the following essentials must be met:

Firstly, the spouses must be under a legally valid marriage, with genuine companionship, intimacy or consortium. Where the marital tie was already affected by instances not associated with third party’s interference, or parties lacked genuine affection or companionship between each other, no action for AoA shall be successful.

Secondly, there must be a third-party’s ‘intentional and wrongful interference’ in that marital relationship (for example: cultivating a relationship with one spouse knowing that it will affect the marriage, encouraging separation from spouse etc.). The Supreme Court in Pinakin Mahipatray Rawal v. State of Gujarat, observed that “A person can be held liable for the action of alienation only when there is any active participation, initiation, or encouragement on the part of the Defendant.” Acts leading to the loss of affection must be wrongful, designed and deliberately calculated in a manner to entice the affection of one spouse away from the other. However, if the spouse’s conduct is completely voluntary and uncoerced, the third party shall not be liable for the acts (i.e. alienation resulting because of consent is a complete defence). The action for AoA does not require proof of adulterous conduct, any proven intentional interference in the marital relationship is sufficient for the suit. The Plaintiff is not required to show Defendant’s intent to destroy the marriage; merely establishing the malafide intent to interfere is sufficient. 

Thirdly, there must be a causal link between the interference and the loss of the marital relationship’s affection. The respondent’s wrongful conduct must be the primary reason for the alienation; it must be established that the spouse withdrew himself emotionally or became distant.

For a successful prosecution for the tort, there must be an evident loss of marital relationship, companionship, assistance, and consortium for the couple. Additionally, there must be compelling evidence that the third party actively participated in, initiated, or encouraged the alienation, such that they played a substantial role in inducing or causing one spouse to lose the affection of the other. Mere association, or liking as such do not become tortious.

An action for alienation of affection can be brought for all improper intrusions on the marriage by another, including, but not limited to extramarital sex, spouse’s continued overtures or sexual liaisons, etc. The liability arises only when the defendant has actively participated in, initiated, or encouraged the conduct in question.

The Delhi High Court in the recent case of Shelly Mahajan v. Ms Bhanushree Bahl & Anr took a progressive stance of the tort. Here, the wife, (Plaintiff herein) was married to the husband (Defendant 2) and they had twin children. Defendant 1 joined the same venture with Defendant 2 and despite being aware of the marital relationship, she developed a close and personal bond with the Defendant. It was found that Defendant 1 frequently visited their marital home, accompanied Defendant 2 on work trips, and even became his exclusive travel companion, causing the Plaintiff serious apprehensions. The Court here applied the Hohfeld’s analysis and noted that if a spouse has a protectable interest in the marital consortium, the third party has a legal duty to not intentionally and wrongfully interfere with that relationship. (Hohfeld’s analysis states that if a person has a right over something, the other has a correlative duty to act or refrain from acting in a certain way.)

LACUNAE

The tort of Alienation of Affection has an evolving jurisprudence in the Indian legal system. The Shelly Mahajan case was the first case where damages were awarded only on the basis of the tort, not coupled with any other marital offence.

The tort primarily assumes that the affection between spouses can be ‘stolen’ or ‘enticed’ by a third-party, which is contrary to the realistic scenario where affection is voluntary and inherent. It ignores to consider the fact that the marriage may not be alienated solely by action of a third party without any consent (whether express or implied) on part of the spouse. 

Further, by using words such as ‘third party’s interference’ or ‘incitement by third party’, the law disregards the decisional autonomy of Defendant spouse. The Defendant spouse, not being a minor, is legally eligible to make informed decisions for himself, and in such cases using the tort as enforceable only against the third party disregards the plausible knowledge and intention that the Defendant spouse may possess while participating in any such acts.

Moreover, through imposing pecuniary damages on the Defendant, it forces people to continue in unhappy marital ties which has an effect of discouraging separation in an instance where the marriage has broken to the extent that one of the spouse is already alienated to the marital tie and rather connected with a third party. 

Further, the nature of remedy sought by an action of AoA is merely compensatory. By allowing monetary compensation for commission of acts so gravely prejudicial to the spouse, the Courts reduce the sanctity of the marital tie. Companionship and affection would be seen as quantifiable legal goods and the marital tie shall be reduced not to a sacred relationship, rather a Court-bound forcing.

The tort may as well, disproportionately affect women. In patriarchal societies like India, where only the third party is held liable, women may be selectively targeted in lawsuits exposing them to further social stigma and reputational harm.

There may be instances of misusing the tort vindictively against the vulnerable spouse as a means of extracting money in the name of damages. 

Since there are no standard guidelines or directions specifying what does or does not amount to commission of the tort, the Courts may be slugged in several vindictive suits filed merely out of greed and not genuine affection. This could lead to a shift in the actions for tort being towards vendetta legislations, which are socially corrosive.

Further, the damages are awarded according to the ‘harm suffered by the other spouse’, which is difficult to assess. The level of mental cruelty inflicted on spouse because of any such act of the Defendant spouse may be difficult to assess. What may be acceptable to some, may not be acceptable to others. The monetary compensations thus being awarded can be arbitrary and unjust.

Since the Apex Court has not yet dealt with the matter in full course, no clear directives binding on all Courts are available. The High Courts on their own interpretation seek to resolve the disputes which leads to lack of uniformity. 

SUGGESTIONS

Firstly, the author suggests expanding scope of the tort to cover not only valid marriages but also voidable marriages and live-in relationships where parties share genuine intimacy and affection towards each other.

Mental cruelty has been defined as such a conduct by the spouse which inflicts upon the other spouse such mental pain and suffering which would make it impossible for the parties to live together. In Shobha Rani v. Madhukar Reddy, the Apex Court held that “Where the conduct complained of itself is bad enough and per se unlawful or illegal, the impact or the injurious effect on the other spouse need not be enquired into or considered.” With this regard, commission of alienation of affection, itself being prejudicial to the marital tie and the petitioner spouse, subjects the spouse to mental cruelty. The other spouse may be subject to mental agony and stress on discovering the extra-marital conduct of the Defendant spouse.

Further, if any spouse is found guilty for the tort, it is clear that the marital bond has or shall fail in some due time. The tort, though not completely alike, but is similar to adultery. While torts like romantic relationship without sexual intercourse, flirting, Alienation of Affection are categorised as non-adulterous infidelity, Adultery can be regarded as a higher degree of infidelity.

Section 13(1) of the Hindu Marriage Act recognises divorce on fault grounds. Adultery being one of such grounds has been recognised but non-adulterous infidelity including emotional infidelity, flirting, alienation of affection etc., which do not involve any sexual intercourse but cause serious prejudice to the marital bond has not been recognised per se. The author suggests inclusion of such non-adulterous infidelity as offences against marriage with grant of matrimonial reliefs and not mere pecuniary damages. The author suggests that Courts must employ principles of equity to balance the conflicting interests of both the spouses. It is suggested that only granting pecuniary damages further creates a class within the society where the rich can easily abuse the marital sanctity by engaging in non-adulterous infidelity and escaping the same by dispensing off some monetary compensation. Such a practice inherently violates our core social and moral values and would degrade the society.

Lastly, the author suggests expanding the definition of Alienation of Affection, with proper directives as to what exactly constitutes such commission, and its interaction with other matrimonial offences. There must be a clear stance on controlling vindictive suits against a particular class or group of people to avoid misuse of the remedy. 

CONCLUSION

The tort of Alienation of Affection represents a significant yet contentious shift in Indian matrimonial jurisprudence, attempting to address emotional harm caused by intentional third-party interference in marital relationships. Its adoption from common law jurisdiction in Indian legal system however, has occurred without sufficient adaptation to existing matrimonial laws, social realities, and constitutional values of autonomy and equality. While recent judicial developments reflect a growing recognition of the protectable interest spouses hold in marital consortium, the application of tort remains debatable. Its reliance on monetary compensation neither adequately captures the nature of emotional loss nor effectively safeguards the marital bond. Rather, it may inadvertently commercialise marital fidelity and encourage vindictive litigation.

The absence of clear standards governing parties’ intent, causation, and assessment of damages renders the tort susceptible to arbitrariness and misuse. By fixing liability primarily on the third party and offering only compensatory damages, the tort fails to address the core cause of marital breakdown; alienated spouse’s conduct, which not only diminishes individual agency but also risks moral policing and selective targeting, particularly of women.

Thus, comprehensive legislative/ judicial action is required for the tort to serve a legitimate purpose; its scope must be clearly defined, misuse strictly controlled, and its interaction with matrimonial remedies must be properly addressed. Such clear guidelines are necessary to prevent abuse and ensure uniformity. More importantly, integrating non-adulterous infidelity and alienation of affection within the framework of matrimonial reliefs rather than confining them to tortious liability would better align legal remedies with societal standards, and moral considerations. Without such reforms, the tort risks becoming an instrument of retaliation rather than a principled mechanism of justice.

*Yutika Jain is a second year student pursuing BBA LLB Hons from Integrated Law Course, Faculty of Law, University of Delhi.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.