The Delhi High Court’s recent decision in Shelly Mahajan v. Bhanushree Bahl (CS(OS) 602/2025) to allow a wife to sue her husband’s alleged lover for “alienation of affection” [in short “AoA”] is indeed a novel one but, novelty-aside, it is a decision that is deeply concerning for multiple reasons. 

Should lost love ever become a matter for legal adjudication? And if it should, how does one possibly quantify the value of affection — of companionship, intimacy, or heartbreak — in rupees or dollars?

These are the questions at the heart of this debate.

For those who arrived late, the decision is to the effect that, even though India’s legislations do not expressly recognize this tort, a civil claim may lie for malicious third-party interference in a marriage if the affections of a spouse are stolen or alienated on account of an act of a third party (who has a relationship with that spouse). (The decision was based on this right being spoken-about in earlier SC decisions (more in this, a little later!)

This, I argue – with great respect, is against the trend and grain of legal reform and progress made in respect of family law issues.  

In fact, and – in fairness to the judgment, it specially notes this, that nearly every major common-law jurisdiction has long abandoned alienation-of-affection claims. The judgment itself notes that AoA “survives in only a handful of U.S. jurisdictions and has been “abolished in England, Wales, and Canada.”.
Canada’s Supreme Court famously held in Kungl v. Schiefer (1962) that no such tort ever existed under Canadian law. Australia did the same: when it enacted no-fault divorce in 1975, the Family Law Act, 1975 explicitly“ceased any ‘alienation of affection’ actions.”)

In the United States, “heart-balm” actions like AoA fell into disfavor by the 1930s and most states repealed them soon after. (see below as Annexure A – a table of countries where such laws/torts are abolished/rendered null and void)

Today only five or six U.S. states still permit the claim, and even there it is rarely invoked.

It is not incidental that the countries which have moved to no-fault divorce, gender equality and individual rights have closed the door on these torts.

Why have these claims virtually disappeared worldwide?

A litany of reasons explains the global abandonment of AoA. 

First, no-fault divorce regimes (by design) refuse to assign blame for a marriage’s breakdown, making a tort for “stealing” one’s spouse fundamentally unsound.

When bitter waters are flowing, it is unwise to look into the source from which they spring. It just creates more bitterness for everyone, including & specifically, for children.

As one American commentator observes, “the public policy behind [no-fault divorce] is not to cast blame on either side… therefore, the tort [of AoA] is inconsistent with no-fault divorce.”

Second, AoA litigation is highly intrusive. In such actions, Plaintiffs must probe into intimate conversations, relationships, and motives to prove “lost affection,” turning private marital life into public evidence.

Further, whether the erring spouse lost affection towards the other spouse on account of fundamental issues with the marriage itself (or fault of the suing party) or those affections were stolen or seduced by a third party, is a highly subjective matter, and hardly an issue that should warrant judicial trials.  In fact, the warring parties themselves would be hard placed to pinpoint blame and causality and such matters-of-the-heart are ill-suited for adversarial litigation.

Third, such suits invite abuse and blackmail: history is riddled with sensational “heart-balm rackets” where broken engagement or affair claims became tools for extortion. 

Further, Legislatures across the world have reacted by barring such causes of action wholesale.

As one U.S. news report put it, “most states have dropped [AoA laws] as archaic and for treating women as chattels,” and some authorities have flatly denounced AoA as “archaic”, removing personal responsibility for marital failure. 

Crucially, alienation-of-affection torts also clash with modern values of autonomy and privacy. 

The very premise of AoA is paternalistic: it presumes one spouse has a property-like interest in the other’s affections, and that third parties have a duty to refrain from any “interference” in a marriage.

This concept sits uneasily in today’s world. 

As the North Carolina attorney general remarked, the law “demeans the obligations of spouses” and “ignores the realities of how and why marriages fail,”.

Indeed, requiring a person to prove they “enticed” a married individual is an absolutely subjective moral judgment. 

Even in India, our apex court has stressed adult personal freedom, noting that voluntary relationships outside marriage generally defeat any third-party liability.

The Court, in all fairness, acknowledged this tension – stressing that mere acquaintance is not enough and that a spouse’s unfettered choices prevail – yet by sanctioning AoA (at least, at any rate, holding it maintainable – to begin with) it ultimately empowers litigation over those very “personal and private” matters.

The Supreme Court judgments that the Delhi High Court held to be binding don’t seem to be examining the issue in detail at all (or any of the modern developments), and it is crucial to bear in mind that it is debatable whether this part of the judgments (which ostensibly note/recognised this tort) was the ratio decidendi of those judgments at all.

If this tort takes root, it may encourage vindictive spouses to drag third parties – including relatives or even therapists – into court over failed marriages.

Sensitive topics like flings or divorce counseling might be raked over in open court. Put bluntly, it risks reimporting moralistic litigation: battles over “who led whom astray” rather than pragmatic resolutions. 

It also runs the danger of chilling constitutionally protected choices: personal autonomy in relationships was heralded by Joseph Shine (2018) when adultery was decriminalized, but AoA would “hit you very hard in dollars” for choices the state now says are not crimes. 

If India is to modernize its family law, legislative clarity is needed.

This judgment essentially affirms this cause of action as maintainable (though sustainability would have to await trial) – but our Parliament has never enacted any “heart-balm” statute or recognized AoA.

Other nations found that only an express repeal could reconcile such torts with evolving societal norms and practicalities. 

To conclude, policymakers should follow the global trend and declare that courts should not concern themselves with awarding damages for a lost marriage or lost affections. Lost love or affections ought not to be subject-matters of litigation. Family disputes are better resolved through divorce (preferably of the no-fault variety), custody and maintenance/marital property law, not by punishing parties and the so-called “paramours.”

In short, reviving the alienation-of-affection tort would be a few step backwards. While, in the order in question, the suit (and, by extension, the tort) is held to be prima facie maintainable, one hopes, it is eventually held to be – finally -not-sustainable. India’s law should not walk back into a relatively more Victorian world and mould; on the contrary, we ought to formally foreclose this anachronistic claim and advance the principle that personal freedom and equality – not blame and blood money – are the cornerstones of modern family law. 

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• Annexure A:

Jurisdiction / Law	What the Law Does (Abolition or Rejection)	Brief Reason / Rationale
England & Wales	Abolished all traditional heart-balm causes of action (including alienation of affection, criminal conversation, breach of promise to marry, etc.) via the Law Reform (Miscellaneous Provisions) Act 1970	To eliminate “morality-based” litigation, reduce intrusion into private affairs, and modernize the law. (The 1970 Act removed the common law bases for these torts.)
Australia	When the Family Law Act 1975 introduced no-fault divorce, it also ceased any “alienation of affection” actions. (Lexology)	The shift to no-fault divorce meant fault-based tort claims for marital breakdown became incompatible. Also to reduce the moralism and litigation around private romantic life.
U.S. (many states)	Numerous states have passed “heart balm” statutes that abolish causes of action for alienation of affection, criminal conversation, breach of promise, seduction, etc. (Wikipedia)	To curb abuse, blackmail, and frivolous suits, and to align the law with changing social views on marriage, autonomy, and privacy.
Connecticut (U.S. state)	The statute Sec. 52-572b states: “Alienation of affections … actions [are] abolished.” (Justia Law)	To remove the possibility of such claims and simplify family/delict law.
Virginia (U.S. state)	§ 8.01-220 provides: “No civil action shall lie … for alienation of affection, breach of promise to marry, or criminal conversation” for causes arising on or after June 28, 1968. (Virginia Law)	Legislative pronouncement that such torts have no place in modern civil law.
Rhode Island (U.S. state)	§ 9-1-42 abolishes civil actions for alienation of affection, criminal conversation, or seduction. (Justia Law)	To eliminate these claims entirely from civil litigation.
Georgia (U.S. state)	Code § 51-1-17: “Adultery, alienation of affections, or criminal conversation … shall not give a right of action to the person’s spouse.” (Justia Law)	Statutory abolition of these causes of action.
Canadian Provinces	Many provinces have repealed or refused to recognize heart-balm actions like alienation of affection and breach of promise (often in conjunction with modernization of family law and rights under the Charter).	They found these torts inconsistent with equality, individual rights, and the protection of privacy. Some judicial decisions held such torts never existed under Canadian law.
Other U.S. States (by judicial abolition)	Some states, even absent explicit statute, have ended recognition of AoA by common law decision.	Courts perceived the torts as outdated, difficult to justify, inconsistent with evolving societal norms.