New Delhi: In a move that adds another dimension to matrimonial disputes, HC sought the stand of the girlfriend, noting there was “prima facie” a case of civil injury as a cause of action against her, “which is distinct from the remedies falling within the exclusive jurisdiction of the family courts.““Significantly, neither the Hindu Marriage Act nor any other matrimonial legislation provides a codified remedy enabling the family court to grant relief against the alleged acts of a third party in such circumstances. In the absence of any such remedy under matrimonial law, and equally in the absence of any statutory bar, a civil action seeking damages against a third party is not excluded and can be pursued before the civil court,” Justice Purushaindra Kumar Kaurav noted.The court relied on concepts of alienation of affection (AoA), prevalent abroad, where a spouse can sue a third party for causing a marriage to break down. “It is seen that, as on date, Indian legislation does not expressly recognise the tort of AoA. The concept is one fundamentally derived from Anglo-American Common Law and belongs to the category of so-called ‘heart-balm’ torts. In the common law tradition, a heart-balm action is a civil claim, whereby a party seeks monetary compensation for the termination or disruption of a romantic or marital relationship. Heart-balm actions historically included seduction, criminal conversation, AoA and breach of a promise to marry,” Justice Kaurav observed.“To date, no Indian court appears to have granted relief in a civil suit seeking damages solely on the basis of AoA, nor has any court prescribed a procedure for adjudicating such a claim. Thus, while Indian jurisprudence has acknowledged the concept in principle as a possible tort, and the action by the aggrieved spouse to be maintainable, the courts have, thus far, not evolved any substantive law or remedies to support its enforcement in practice,” HC added.Opposing the plea, the husband and his girlfriend both cited their right to privacy and highlighted that adultery was decriminalised by Supreme Court. They added that the Domestic Violence Act and other matrimonial laws were enough to deal with such a situation.HC said the pendency of parallel matrimonial proceedings did not bar the institution of a separate civil suit for damages against the outsider. On adultery, it agreed that govt had no role in criminalising the private lives and intimate choices of individuals, and that neither govt nor its executive ought to interfere in such domains. It underscored, however, that “there does not lie an absolute right upon any individual to maintain intimate relations outside marriage, without consequences. The decision in Joseph Shine decriminalised adultery; it did not create a licence to enter into intimate relationships beyond marriage, free from civil or legal implications.”HC said individuals may hold certain expectations from the sanctity of marriage. “While the exercise of personal liberty is not criminal and, therefore, cannot attract penal sanction by govt as a matter of public offence, such conduct may nevertheless give rise to civil consequences. When one spouse claims to have suffered legal injury on account of the disruption of the marital relationship, the law, under tort, recognises that compensation may be sought from those alleged to have contributed to the breach of that sanctified bond,” it added.
