Adultery Is Not An Actionable Claim For Damages In India: Kerala HC Sets Aside 4L Compensation Awarded To Husband By Family Court
The Kerala High Court set aside Rs. 4 lakh compensation awarded to a husband, who alleged mental pain and humiliation caused by his wife’s extramarital affair after observing that adultery in India is not an actionable claim for damages.
The Court pointed out that Section 497 of the IPC was decriminalised in India by the Apex Court in Joseph Shine v. Union of India (2019) as being violative of Articles 14, 15 & 21 of the Constitution and was declared unconstitutional as it “robbed a woman of her sexual autonomy, dignity and privacy.” Adultery is also not an offence under the Bharatiya Nyaya Sanhita, 2023.
A Division Bench of Justice Devan Ramachandran and Justice M.B. Snehalatha held, “Adultery is not an actionable claim for damages in India. By treating adultery as a ground for divorce rather than a tortious or criminal act, the law respects individual autonomy while providing appropriate remedies for marital disputes.”
Advocate S. Mohammed Al Rafi appeared for the Appellants, while Senior Advocate Ravi Bhansali represented the Respondents.
The husband alleged that during their marriage, his wife had an extramarital relationship with whom she eloped and later started living with. The husband claimed this caused him mental agony, humiliation, and pain, and sought Rs. 20 lahks in compensation.
The Family Court partially allowed his claim, awarding Rs. 4 lakhs in compensation while dismissing his demands for the return of gold ornaments and cash.
The High Court noted that the wife had argued a different story altogether. Her case was that the husband and his mother used to ill-treat her demanding dowry and brutally manhandled her and therefore she was forced to leave the matrimonial home. She claimed that she was residing at her parental home and had initiated action against the husband seeking divorce. According to her, the husband had alleged adultery on her part as a counterblast to her divorce action.
“Adultery is often considered as a breach of marital trust, it has historically carried significant legal and moral weight in many societies. However, with evolving societal norms and legal principles, adultery is no longer recognized as a basis for claiming damages in many jurisdictions including India,” the Bench remarked.
The Court also noted that the divorce between the parties was not granted on the grounds of adultery but was filed by the wife in 2012, while the husband’s claim for damages was initiated two years after the divorce proceedings.
The Bench pointed out, “While adultery may be considered immoral, it is not a matter of criminal law. But it is a ground for divorce under the Hindu Marriage Act, 1955, the Indian Divorce Act, 1869, Special Marriage Act, 1954 and other personal laws. Indian Law does not permit a spouse to sue the adulterous partner or the third party for damages. This is because the marriage is considered as a personal relationship and a dispute arising within it which are typically resolved through family law mechanisms rather than tort law.”
Consequently, the Court observed, “If the court allows the claim for damages, it would be reinforcing the updated notional gender roles in marriage such as the idea of one spouse owning the other's fidelity.”
Accordingly, the High Court allowed the appeal and held, “There is no basis for the claim for compensation sought against respondents 1 & 2. Hence we find that, that part of the impugned judgment and decree of the Family Court, Thiruvananthapuram directing respondents 1 & 2 to pay compensation of ₹4 lakhs is liable to be set aside and we do so.”
Cause Title: XXXX & Anr. v. XXXX & Ors. (Neutral Citation: 2024:KER:92590)
Appearance:
Appellants: Advocate S. Mohammed Al Rafi
Respondents: Advocates L. Mohanan, Ligey Antony and L Mohanan