A Delhi Court has held that a husband's extramarital affair, even when it results in the birth of a child with the third party, is not, by itself enough to hold the third party liable for the tort of “alienation of affection” when sued by his wife.

District Judge Atul Ahlawat of Saket Courts dismissed a wife's suit seeking Rs. 50 lakh as damages from her husband's alleged partner, as well as compensation under the common law tort of “alienation of affection”.

The judge held that the wife failed to prove that her marriage was loving and affectionate before the alleged third-party interference.

The Court held that merely establishing a subsisting marriage or an extramarital relationship of the husband is not enough to sustain a claim for alienation of affection.

It added that the plaintiff must first prove the existence of genuine marital affection and thereafter establish that the third party's intentional and wrongful conduct caused its destruction.

The Court further held that an extramarital relationship, by itself, does not make the third party liable for damages.

Relying on the Supreme Court's observations in Pinakin Mahipatray Rawal v. State of Gujarat wherein it was held that the liability for alienation of affection requires active participation, initiation or encouragement by the third party.

“For the tort of AoA, the extra marital sexual intercourse is not a sine qua non, since the action is based for all improper intrusions or assaults on the marital relationship by the third party, whether or not associated with extra marital sexual intercourse, or no,” the Court said.

The wife filed the suit against the third party woman on the allegation that she had intentionally interfered with her marriage and caused her husband's affection to be alienated from her.

The wife alleged that her husband and the woman were involved in an extramarital relationship from around 2009 and that the third party, despite knowing that he was married, induced him to leave the matrimonial relationship.

She relied upon photographs, phone and travel-related material, bank records, hotel bills and an alleged photograph of the husband's second marriage with the third party and the birth certificate of their child.

The Court dismissed the suit after finding significant deficiencies in the evidence. It noted that the wife had herself deposed during the cross-examination that her marriage was already going through a “rough phase” when the alleged relationship between her husband and the third party began.

She had also stated that her husband had been planning to exit the marriage as early as 2010 and that she had consulted a marriage counsellor between 2003 and 2009.

On this, the judge observed that such a position indicated that all was not well in the marriage even before the third party allegedly entered their lives.

The Court also noted that the wife had admitted that her husband had denied physical intimacy with her for most of the period after the first two or three years of their marriage.

“Therefore, as per her (plaintiff) own testimony, even prior to defendant no. 1 (third party) coming into the life of the defendant no. 2 (husband), the marital relations between her and the defendant no. 2 had hit rock bottom, especially when she had also deposed in her cross-examination that the defendant no. 2 would go through phases of extreme anger and therefore, would become highly unpredictable and uncontrollable at times,” the Court said.

It concluded that even on preponderance of probabilities, the wife miserably failed to establish that prior to the time when the third party came into their lives, whether there was any genuine love and affection in her marriage with the husband.

The Court said that since the first limb of the tort of alienation of affection could not be satisfied by the wife, the issue of whether the destruction of affection was due to the intentional, wrongful or malicious conduct directly attributable to the third party did not arise.

“Lastly, merely because two consenting adults had entered into a consensual sexual relationship outside the marriage and it led to the birth of a child, does not in itself establish the requirements with respect to the ingredients of the present tort of AoA,” the Court held.