Tort Of Alienation Of Affection (AoA): A Critique

Recently, the Delhi High Court ruled that a spouse can sue the partner's lover and claim compensation for interference in the marriage and causing loss of affection and companionship between the husband and wife. The third person could be treated as a disruptor causing the breakdown of the marriage. According to the court, even post Joseph Shine, adultery can still have civil consequences.

The court has reignited the liability question on adultery. The question of law put to rest is being unsettled once again, though with less rigour, Using the civil and tort framework. The court subscribed to the idea that decriminalisation of adultery doesn't create a 'license' to enter into intimate relationships beyond marriage. A tortious compensation may be sought from the person alleged to have contributed to the breach of the 'sanctified bond'. The court said that case founded on alleged acts of spouses' lover and not the spouse themselves, the nature of the case would be civil in nature, particularly, alienation of affection claim.

A tort arises when there is an act or omission, that causes infringement of a legal right, where a duty of care was owed by the defendant towards the plaintiff, that leads to or has a causal connection with the legal damage or injury that the plaintiff has suffered. It could be to person, i.e., physical in nature, to property, to reputation, for instance; defamation, or to other legal rights; as in the case of Ashby v. White, wherein the right to vote of the plaintiff was violated.

The tort of AoA originated in the case of Winsmore v. Greenbank in 1745; wherein the defendant enticed away the plaintiff's wife, leading to loss of consortium. Lord Chief Justice Willes of the King's bench in England held that the husband could recover damages for the loss of his wife's consortium and affection. This tort was done away with in England by the by the Law Reform (Miscellaneous Provisions) Act, 1970. However, the tort still survives in few American states. The tort is jurisprudentially rooted in religious conservative thought where breakdown of marriage is undesirable and the urge to locate the 'fault' is the underlining theme to understand failure of a marriage.

This tort must hold no place in liberal societies for the difference between a tort, and a civil wrong and crime is just a matter of degree. Decriminalising adultery and relegating the liability to the level of tort doesn't make any difference. The underlying justification for both remains the same and is unconstitutional. Scholars like H.L.A Hart have questioned the very distinction and categorization between public and private law on the ground that many 'civil wrongs' have the same impact of mass hysteria and panic on society as the ones of 'criminal nature'. For instance, a person would not like to buy a property in an area with high rates of property fraud. The impact is on the same lines as impact of a 'crime' on society. Does this mean the 'civil' needs to be made 'criminal'? Another example is the criminalisation of cheque bounce cases. What must traditionally be 'civil' is turned criminal given the increasing number of cases of the same having 'criminal' nature of impact. The non-arbitrability of disputed under family law in arbitration and conciliation act further strengthens Hart's argument. Hence, the distinction is an artificial one. Further, depending upon whether or not the state endorses 'religious space-secular public space' paradigm, tossing would happen in the 'civil wrong vs crime' dichotomy across jurisdictions. Therefore, categorization as 'right in rem' and 'right in persona' is a consequence more than a cause.

I argue that the aggrieved spouse has no such right to be violated by the paramour and at best the case relates to injuria sine damnum i.e., injury without damage for without an underlying right, the essential elements of tort aren't fulfilled. Also, as per Hofheldian analysis of rights, where there is liberty, there is no corresponding right to coerce the person to behave a certain way, be it using the tool of tort claim or using the machinery of criminal law. The Joseph Shine case not just decriminalised adultery but also affirmed the basic principles of autonomy and privacy while refusing to enforce the majoritarian notions of 'sacrosanct marriage' in a pluralist society like India. Fulfilment of marital obligations is a personal choice protected by privacy, the aggrieved spouse has the choice to take the route of divorce on the ground of adultery or mental cruelty as the case may be, but to drag the paramour by way of tortious liability is unconstitutional. A right is an interest protected by law and the law doesn't protect the interest of the aggrieved spouse in such a way against the paramour. The tort law is a development of common law and can't override constitutional principles established by the Supreme Court and the fundamental right takes precedence over a right recognised by tort law rooted in archaic jurisprudence, abolished in country of origin and losing the grip of conviction in liberal societies.

Furthermore, the court presumes the paramour is the cause of loss of affection between the married couple. Such presumption has no basis and one could easily argue the other way round that spouses' relationship with the paramour is an effect of loss of affection and companionship between the married couple. When the evidence of cause itself is questionable and subjective, it is a far-fetched exercise to analyse whether it is proximate or remote, which is important element of tortious liability, and hence futile. The court also retorts to using the 'license' terminology and proclaims that decriminalisation doesn't generate a license to get into intimate relationships beyond marriage that breaches the sanctified bond. The court is seemingly getting into the realm of moral policing because, the decriminalisation also does not 'doesn't create a license' i.e., affirms the personal liberty of two consenting adults and hence reintroduction of watered-down version of the offence of adultery in the garb of tortious liability is something that one must remain critical off!

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