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13. Alienation of affection by a stranger, if proved, is an intentional tort i.e. interference in the marital relationship with intent to alienate one spouse from the other. Alienation of affection is known as "Heart Balm"

action. Anglo-Saxon common law on alienation of affection has not much roots in this country, the law is still in its nascent stage. Anglo- Saxon based action against third parties involving tortuous interference with the marital relationship was mainly compensatory in nature which was earlier available to the husband, but, of late, a wife could also lay such a claim complaining of alienation of affection. The object is to preserve marital harmony by deterring wrongful interference, thereby to save the institution of HC-NIC Page 21 of 35 Created On Thu Aug 17 02:38:27 IST 2017 marriage. Both the spouses have a valuable interest in the married relationship, including its intimacy, companionship, support, duties, affection, welfare of children etc.

15. We are, however, of the view that for a successful prosecution of such an action for alienation of affection, the loss of marital relationship, companionship, assistance, loss of consortium, etc. as such may not be sufficient, but there must be clear evidence to show active participation, initiation or encouragement on the part of a third party that he/she must have played a substantial part in inducing or causing one spouse's loss of other spouse's affection. Mere acts, association, liking as such do not become tortuous. Few countries and several States in the United States of America have passed legislation against bringing in an action for alienation of affection, due to various reasons, including the difficulties experienced in assessing the monetary damages and few States have also abolished "criminal conversation" action as well.

16. We may, however, indicate that few States and countries strongly support such an action, with the object of maintaining and preserving the marriage as a sacred institution. Strong support comes from the State of Mississippi in the United States. In Knight Vs. Woodfield 50 So. 3d 995 (Miss. 2011), the husband filed a suit for alienation against his wife. The wife alleged paramour after gaining access to a phone call. Facts disclosed they had exchanged 930 text messages and talked more than 16 hours in two months. In that case jurisdictional issues were raised, but Court reaffirmed that law of alienation of affection is firmly established in State of Mississippi. Another case of some HC-NIC Page 22 of 35 Created On Thu Aug 17 02:38:27 IST 2017 importance is Dare Vs. Stokes, 62 So, 3d 858 (Miss. 2011), where in a property settlement agreement of divorced couple, a provision was made that the husband would not bring suit against any other person for alienation of affection. Agreement was reduced to a final order by the trial Court. Later husband came to know that his wife had a love affair with one Dare and hence sought for a modification of the agreement. He also sent a notice to Dare as well of his intention to file a suit for alienation of affection. Dare's attempt to intervene and oppose the application for modification of the agreement was not favourably considered by the Court on the ground that he cannot middle with the marital relationship.

17. 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.