The Supreme Court of India ruled that mere intimacy with a third party during the subsistence of marriage as such would not amount to cruelty under Section 498A of Indian Penal Code.
The Court said “but it (intimacy) must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498A IPC.”
The Court also took an opportunity to dwell upon the concept of Alienation of Affection (an intentional tort ) i.e. interference in the marital relationship with intent to alienate one spouse from the other. The court mentioned that Alienation of Affection has not much roots in India.
“Action for alienation of affection lies for all improper intrusions or assaults on the marriage relationship by another, whether or not associated with “extramarital sex”, his or her continued overtures or sexual liaisons can be construed as something akin to an assumption of risk that his/her conduct will injure the marriage and give rise to an action. But all the same, a person is not liable for alienation of affection for merely becoming a passive object of affection. The liability arises only if there is any active participation, initiation or encouragement on the part of the defendant. Acts which lead to the loss of affection must be wrongful, intentional, calculated to entice the affection of one spouse away from the other, in order to support a cause of action for alienation of affection. For proving a claim for alienation of affection it is not necessary for a party to prove an adulterous relationship”, the Court said.