Modern Legal System Doesn't Allow Claiming Damages For Adultery, Rejects Notion Of 'Owning' Spouse's Loyalty: Kerala High Court

“Most modern legal systems have moved away from allowing damages, claims for adultery recognizing privacy of relationship. Adultery is viewed as a private matter between spouses. Modern laws reject the notion of one spouse owning the others' loyalty which was often the basis for damage claims.”

The Court however emphasized that adultery is a ground for a divorce or judicial separation. It said that such remedies are envisaged to restore personal dignity and autonomy. The Court however added that there is no objective of imposing financial liability of the adulterous spouse or third parties.

The Court noted that the Divorce (Amendment) Act, 2001 removed Section 34 from Indian Divorce Act which had allowed the husband to claim damages from the adulterer. The Court said that the provision was removed to treat marriage and personal relationship as private matters rather than ground for public or legal retribution.

The Court observed that adultery is no more a criminal offence after Joseph Shine v Union of India. The Court noted that Adultery is not an offence in Bharatiya Nyaya Sanhita also.

The former husband in his petition before the Family Court alleged that his former wife, while the marriage was subsisting developed an illicit relationship with another person and eloped with him taking gold documents and valuable records. A complaint for a missing person was filed by the wife. When she was produced before the Court, she stated that she was staying with the person she had allegedly eloped with. The husband further stated in his petition that she went with him and they are living as husband and wife. He claimed a 20 Lakh compensation for his mental agony, pain and humiliation. He also sought for return of gold and cash.

The wife however denied all these allegations. She said that she was forced to leave the matrimonial home due to the ill-treatment of her husband and his mother. She said that she was manhandled and they demanded dowry. She stated that after leaving her matrimonial home, she was staying with her parents. She said that after some time, she had gone with her relative who her former husband claims to be the adulterer and is staying with him currently. She claimed that her former husband had filed this petition as a counterblast to her petition seeking return of her 35 sovereigns of gold ornaments which was allegedly misappropriated by the petition and his parents.

The Family Court had rejected the husband's claim for return of gold and cash but had directed the wife and the third-party alleged adulterer to pay compensation of Rs. 4 Lakhs to the former husband for the mental pain, agony and humiliation caused to him. Against this, the former wife filed an appeal before the High Court.

The Court noted that the wife had filed petitions for divorce and return of gold before the husband had filed petition seeking compensation. The Court had ordered the husband to pay Rs. 1,50,000 to the wife. During the pendency of the petition filed by the husband, their marriage was dissolved. The divorce was not granted on ground of adultery.

The Court observed that there is nothing to show that the husband suffered any mental agony or humiliation due to the conduct of his wife and any others.

The Court set aside the order of Family Court allowing compensation.

Counsel for Appellants: Adv. S. Mohammed Al Rafi

Counsel for Respondents: Advocates L. Mohanan, Ligey Antony, L. Mohanan

Case No: Mat.Appeal 554 of 2022

Case Title: XXX and Another v XXX and Others

Citation: 2024 LiveLaw (Ker) 793