Report No. 15
65. Damages for adultery.-
Then there is the question of damages for adultery. Section 34 of the Indian Divorce Act, 1869, provides that the respondent may claim damages from any person who has committed adultery with his wife, and that he can do so either in a petition for divorce or judicial separation, or even merely for damages without any such relief. There is no such provision in the Hindu Marriage Act, 1955. Under the Special Marriage Act, 1954, section 41(2)(b), this matter is left to be regulated by the rules to be framed by the. High Courts. The question is whether the law should countenance such a claim. It is undoubtedly strange to Indian sentiment that adultery should be a matter for compensation.
In England, the rule in question has its origin in the common law, and has been consistently followed by the statute law on the subject. In the Report of the Royal Commission on Marriage and Divorce, 19551, it is observed that this law has been criticised as out of 'tune with the accepted law on the question. But the Report considers that there might be circumstances in which it is reasonable that the adulterer should be compelled to make redress to the petitioner, and that therefore the provision should be retained.
While the law as enacted in the Hindu Marriage Act, 1955, is more in accord with Indian sentiment, we have retained the provision for damages as that has been the law well-settled in the Christian community for centuries, and no exception has been taken to it by the witnesses who appeared before us. And, on the principle of equality already stated, this provision will be applicable not merely to a husband as against an adulterer, but also to a wife as against an adulteress. This is also the recommendation2 of the Royal Commission on Marriage and Divorce.
1. Cmd. 9678, p. 120, para. 432.
2. Cmd. 9678, p. 121, para. 434.
66. While we have thus retained the claim for damages for adultery, we have, departing from the law as laid down in section 34 of the Indian Divorce Act, 1869, provided that such a claim could be made only in a petition for divorce or judicial separation, and not independently of such relief. According to the law of England as it stood prior to the Matrimonial Causes Act, 1857, it was competent to the husband to claim damages against any person who committed adultery in an action for criminal conversation, without asking for divorce or judicial separation.
That statute abolished this action and substituted in its place a suit in the divorce court, and that right has been preserved by the statute law right through, the latest provision being section 30(1) of the Matrimonial Causes Act, 1950. It is this right that is embodied in section 34 of the Divorce Act, 1869, which provides that a husband can present a petition limited to a claim for damages only. We are not in favour of recognising such a claim. While it may be legitimate to permit a claim for damages when it is ancillary to a prayer for divorce or judicial separation, to permit such a claim to be made as the only substantive relief must lead to blackmail actions.
We consider that a self-respecting husband who is aggrieved by a person committing adultery with his wife will seek to get the marriage dissolved and not to make a profit out of the wrong. It is true that seducing a man's wife will, under the English law, furnish a cause of action in tort, and damages can be recovered on the ground of loss of consortium or service. But this doctrine has come in for considerable criticism, and it was observed by Talbot J., in Delvin v. Coopers, 183 LT (Jour) 222, "it seems quite possible for a husband and wife in financial difficulties to sow the seeds of an action for enticement, and when the result has proved a financial success, to share the proceeds by staging a touching reconciliation".
In this report, we are not concerned with the question whether the English law on this subject should be adopted in this country, and if so, within what limits, because it is well-settled1 that the remedies of an action in tort for enticement and petition for divorce on the ground of adultery are based on different causes of action. It is sufficient for the present purpose that no right should be recognised in the husband to move the divorce court for damages simpliciter. We have accordingly limited the claim for damages on the ground of adultery, under the Act, to petitions for divorce or judicial separation.
1. Vide Elliot v. Albert, (1934) 1 KB 650.