Alienation of Affection

In some states of the United States of America, perhaps seven in all, a wife can sue “the other woman” (for her wrongful and malicious acts towards stealing the husband) in an ‘alienation of affection’ tort action. Though not much jurisprudential thought has been afforded to such actions in India – the Hon’ble Supreme Court of India in the matter of Pinakin Mahipatray Rawal Vs. State of Gujarat, [(2013) 10 SCC 48] has conceded that “possibly, in a given case” a wife could seek compensation, in monetary terms, from the party who disrupts her marriage and alienates her husband’s affections. The SC, however, has added that for a successful prosecution of such an action, whether or not there is extra-marital sex, “acts which lead to the loss of affection must be wrongful, intentional, calculated to entice the affection of one spouse away from the other….But all the same, a person is not liable for alienation of affection for merely becoming a passive object of affection.”

In a matter that was mostly concerned with whether a husband’s conviction under Section 498A & 306 could be set aside – these vague statements need not have been made by the SC. The facts were simple. The Appellant-Husband developed “some intimacy” with another. “Some intimacy” cannot amount to cruelty within the meaning of the Section 498A of the Indian Penal Code. It should not drive a woman to suicide. The Husband’s conviction and sentence were thus set aside. By bringing forth the “alienation of affection” issue – the SC, in my belief, will prompt much litigation. It is quite another matter what the unfortunate lady might have done.

She wrote in her last letter,

My husband, _______, is a very good man and he is not responsible. I also love him. However, I am extremely bad, selfish and egoist and, therefore, not a match to him.

He is in love with _______, serving in _____and wants to marry her and, therefore, for their happiness, I am taking this step.

No one of my house is responsible. Therefore, they may not be harassed. Kindly arrange their marriage with all pomp and gaiety. I gift my dead body to the medical students and I donate my eyes to the blinds.

Yours ______.

This is my last wish which be fulfilled for the peace of my soul.”

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