. “The contention that
the respondent-wife has filed the petition for divorce in the court at USA on
the ground of irretrievable breakdown of marriage which is not the ground
provided for divorce under the Act requires consideration. The mere fact that
the respondent-wife has filed the case on the ground which is not available to
her under the Act, doesn't means that there are likelihood of her being
succeeding in getting a decree for divorce. Specifically, in view of the fact
that the appellant has raised this contention before the Circuit Court, Florida
and both the parties will produce evidence with regard to the question whether
their marriage is governed by the Act or any other law.
Foreign court
cannot be presumed to be exercising its jurisdiction wrongly even after the
appellant being able to prove that the parties in the present case are
continued to be governed by the law governing Hindus in India in the matter of
dispute between them.
In view of above
discussion and after having regard to the nature of case and other peculiar
facts, we do not deem it appropriate to interfere with the decision rendered by
the High Court. We are of the opinion that the proceedings in the Foreign Court
cannot be said to be oppressive or vexatious. The appeal is accordingly
dismissed.”
Supreme Court of India
Dinesh Singh Thakur Vs.
Sonal Thakur
[Civil Appeal No. 3878
2018 arising out of Special Leave Petition (Civil) No. 10078 of
2018 @ Cc
No.22197/2016]
R.K.Agrawal, J.
1. Leave granted.
2. The present appeal
has been filed against the impugned judgment and order dated 03.11.2016 passed
by the High Court of Punjab & Haryana at Chandigarh in CR No. 7190 of 2016
whereby learned single Judge of the High Court dismissed the revision filed by
the appellant-husband against the order dated 18.10.2016 passed by the District
Judge, Family Court, Gurgaon in Civil Suit No. 15 of 2016 whereby ad-interim
injunction granted against the respondent-wife, vide order dated 26.09.2016 has
been vacated.
Brief facts:-
3. Having regard to the
nature and circumstances of the case, we do not intend to discuss all the facts
in detail at this stage. Hence, the facts are stated in a summarized way only
to appreciate the issue involved in this instant appeal.
a. The marriage between
Dinesh Singh Thakur-the appellant-husband and Sonal Thakur - respondent-wife
was solemnized on 20.02.1995 as per Hindu rites and two children were born out
of the said wedlock. The appellant-husband was working in United States of
America (USA) at the time of marriage and he took the respondent-wife to USA on
Dependent Visa. Both the parties got the citizenship of USA in May, 2003. They
obtained "PIO" status (Person of India Origin) in June 2003 and
"OCI" status (Overseas Citizens of India) in July 2006.
b. The appellant-husband
filed a petition being H.M.A. No. 601 of 2016 under Sections 13 and 26 of the
Hindu Marriage Act, 1955 (in short 'the Act') against the respondent-wife at
the Family Court, Gurgaon which is pending adjudication before the Court.
Subsequently, the respondent-wife filed a petition being Case No.
2016-008918-FD in the Circuit Court of the Sixth Judicial Circuit in and for
Pinellas County, Florida, USA for divorce on the ground of irretrievable
breakdown of marriage and other reliefs. Thereafter, the appellant-husband
filed Civil Suit No. 15 of 2016 before the District Judge, Family Court,
Gurgaon, under Section 7 of the Act for permanent injunction and declaration
inter alia to restrain the respondent-wife from pursuing the petition for
divorce before the Court in USA.
c. Learned District
Judge, vide order dated 26.09.2016, granted ex parte ad interim injunction to
the appellant-husband. Being aggrieved, the respondent-wife filed an
application for vacation and modification of the order dated 26.09.2016.
Learned District Judge, vide order dated 18.10.2016, vacated the injunction
granted vide order dated 26.09.2016.
d. Aggrieved by the
order vacating injunction, the appellant-husband preferred CR No. 7190 of 2016
before the High Court. Learned single Judge of the High Court, vide order dated
03.11.2016 dismissed the petition filed by the appellant-husband.
e. Aggrieved by the
judgment and order dated 03.11.2016, the appellant-husband has filed this
appeal by way of special leave before this Court.
4. Heard Ms. Indu
Malhotra, learned senior counsel for the appellant-husband and Mr. V. Giri,
learned senior counsel for the respondent-wife and perused the record.
Point(s) for
consideration:-
5. The only point for
consideration before this Court is whether in the present facts and
circumstances of the case, the appellant-husband is entitled to the decree of
anti-suit injunction against the respondent-wife?
Rival submissions:-
6. Learned senior
counsel for the appellant-husband contended that as the appellant herein had
already filed a petition seeking dissolution of marriage of the parties in
which the respondent-wife was served on 04.08.2016 and she had caused
appearance on 16.09.2016, the proceedings initiated by the respondent-wife seeking
a decree of divorce in a Foreign Court on the ground of irretrievable breakdown
of marriage which is not a ground for divorce under the Act are liable to be
stayed. Further, the respondent-wife, along with her minor children is residing
in India since 2003 and filing of petition for divorce in the Court at USA,
after receipt of notice in the divorce petition filed by the appellant-husband
in India, is an abuse of process of law and amounts to multiplicity of
proceedings.
7. Learned senior
counsel further contended that the respondent-wife is admittedly residing at
Gurgaon, therefore, the court at Gurgaon would be the forum convenient to both
the parties. She further contended that the trial Court has only considered the
provisions of Section 41(b) of the Specific Relief Act, 1963 (in short 'the SR
Act') and the decision in the case of Rakesh Kumar vs. Ms. Ashima Kumar - AIR
2007 P & H 63 but did not take into consideration the provisions of Section
41(a) of the SR Act, relevant in the present context. Learned senior counsel
for the appellant-husband finally contended that the High Court was not right
in upholding the order of the court below on vacating the ad-interim injunction
and interference in this regard is sought for by this Court.
8. Learned senior
counsel for the respondent-wife while refuting the claims made by learned
senior counsel for the appellant-husband submitted that the petition that has
been filed before the Court at Florida is not only for dissolution of marriage
of the parties but also for claiming various other reliefs such as equitable
distribution of marital assets, child support, alimony, partition and other
reliefs that are not available under the Indian Law. Learned senior counsel
further submitted that the irreparable loss or injury shall be caused to the
respondent-wife and to the children in case the petition pending in the Court
at Florida is stayed.
Discussion
9. Anti-Suit Injunctions
are meant to restrain a party to a suit/proceeding from instituting or
prosecuting a case in another court, including a foreign court. Simply put, an
anti-suit injunction is a judicial order restraining one party from prosecuting
a case in another court outside its jurisdiction. The principles governing
grant of injunction are common to that of granting anti-suit injunction. The
cases of injunction are basically governed by the doctrine of equity.
10. It is a well-settled
law that the courts in India have power to issue anti-suit injunction to a
party over whom it has personal jurisdiction, in an appropriate case. However,
before passing the 6 order of anti-suit injunction, courts should be very
cautious and careful, and it should be granted sparingly and not as a matter of
routine as such orders involve a court impinging on the jurisdiction of another
court, which is not entertained very easily specially when the it restrains the
parties from instituting or continuing a case in a foreign court.
11. In this backdrop, it
is worthwhile to quote Section 41 of the SR Act which provides for various instances
and circumstances under which injunction cannot be granted.
"41. Injunction
when refused.- An injunction cannot be granted-
(a) to restrain any
person from prosecuting a judicial proceeding pending at the institution of the
suit in which the injunction is sought, unless such restraint is necessary to
prevent a multiplicity of proceedings;
(b) to restrain any
person from instituting or prosecuting any proceeding in a court not
subordinate to that from which the injunction is sought;
(c) to restrain any
person from applying to any legislative body;
(d) to restrain any
person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the
breach of a contract the performance of which would not be specifically
enforced;
(f) to prevent, on the
ground of nuisance, an act of which it is not reasonably clear that it will be
a nuisance;
(g) to prevent a
continuing breach in which the plaintiff has acquiesced;
(h) when equally
efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust;
(i) when the conduct of
the plaintiff or his agents has been such as to disentitle him to the
assistance of the court;
(j) when the plaintiff
has no personal interest in the matter."
12. The appellant -
husband argued that Section 41(b) is not applicable to the instant case rather
it is applicable only to those cases where question is regarding the injunction
for proceedings in the Indian court. In support of this argument, learned
senior counsel placed reliance on Oil and Natural Gas Commission vs. Western
Company of North America (1987) 1 SCC 496, wherein this Court, while
interpreting the provision of Section 41(b) of the Specific Relief Act, 1963
has held as follows:-
"18....This
provision, in our opinion, will be attracted only in a fact-situation where an
injunction is sought to restrain a party from instituting or prosecuting any
action in a court in India which is either of coordinate jurisdiction or is
higher to the court from which the injunction is sought in the hierarchy of
Courts in India....."
13. Learned senior
counsel for the appellant-husband further placed reliance on Modi Entertainment
Network and Another vs. WSG Cricket PTE Ltd. 2003 (4) SCC 341, wherein this
Court while dealing with the matter laid down certain principles required to be
taken into consideration by any court while granting an anti-suit injunction.
These principles are as under:-
- The defendant, against whom injunction is sought, is
amenable to the personal jurisdiction of the court.
- If the injunction is declined, the ends of justice will
be defeated and injustice will be perpetuated and;
- The principle of comity-respect for the court in which
the commencement or continuation of action/proceeding is sought to be
restrained-must be borne in mind.
14. In Modi
Entertainment Networks (supra), this Court has reiterated this position by
holding that the courts in India like Court in England are courts of law and
equity. The principles governing the grant of anti-suit injunction being
essentially an equitable relief; the courts in India have the powers to issue
anti-suit injunction to a party over whom it has personal jurisdiction in an
appropriate case; this is because the courts of equity exercise jurisdiction in
personam; this power has to be exercised sparingly where such an injunction is
sought and if not granted, it would amount to the defeat of ends of justice and
injustice would be perpetuated.
15. In Vivek Rai Gupta
vs. Niyati Gupta, Civil Appeal No. 1123 of 2006, decided on February 10, 2016,
this Court has held as under:-
"If the execution
proceedings are filed by the respondent-wife for executing the aforesaid decree
dated 18.09.2012 passed by the Court of Common Pleas, Cuyahoga Country, Ohio,
USA against any other movable/immovable property in India it would be open to
the appellant-husband to resist the said execution petition on any grounds
available to him in law taking the position that such a decree is not
executable."
16. Further, in Harmeeta
Singh vs. Rajat Taneja 2003 (67) DRJ 58, the Delhi High Court considering the
fact that the parties have lived together for a very short time in the United
States of America had granted anti suit injunction.
17. Y. Narasimha Rao
& Others vs. Y. Venkata Lakshmi and Another (1991) 3 SCC 451, this Court
has held as under:-
"20. From the
aforesaid discussion the following rule can be deduced for recognising a
foreign matrimonial judgment in this country. The jurisdiction assumed by the
foreign court as well as the grounds on which the relief is granted must be in
accordance with the matrimonial law under which the parties are married. The
exceptions to this rule may be as follows:
(i) where the
matrimonial action is filed in the forum where the respondent is domiciled or
habitually and permanently resides and the relief is granted on a ground
available in the matrimonial law under which the parties are married;
(ii) where the
respondent voluntarily and effectively submits to the jurisdiction of the forum
as discussed above and contests the claim which is based on a ground available
under the matrimonial law under which the parties are married;
(iii) where the
respondent consents to the grant of the relief although the jurisdiction of the
forum is not in accordance with the provisions of the matrimonial law of the
parties."
18. Further, during the
course of hearing, various documents such as pan card, Aadhar card of the
respondent-wife, lease deed which was executed by her in 2015 etc., which are
also placed on record, are sufficient to show that respondent-wife is
ordinarily living in India. Further, as it appears from the proceedings
recorded before the US court that the respondent herself has admitted that the
Family Court Gurgaon has jurisdiction in the given case. The evidence placed on
record is sufficient enough to show that the respondent is amenable to the
personal jurisdiction of Gurugram Family Court.
Though the
respondent-wife is amenable to the jurisdiction of Family Court, Gurgaon, there
is nothing on record to hold that the other party will suffer grave injustice
if the injunction is not granted. There is no dispute to the fact that both the
parties are permanent citizens of U.S. Undisputedly, the Circuit Court,
Florida, USA is also having the concurrent jurisdiction in the given case.
The contention that the
appellant-husband will suffer grave injustice if the proceedings are allowed to
be continued in the Circuit Court, Florida USA doesn't stand to the ground as
the appellant himself has been residing there after 2007 and the proceedings
for grant of anti-suit injunction were initiated by him in India through
another person by empowering him through a power of attorney to file and pursue
the disputed litigation on his behalf.
Further, there is
nothing brought on record to show how the appellant-husband would suffer grave
injustice if the injunction restraining the respondent-wife from pursuing the
divorce petition in Florida, is not granted. Still further, even if the
injunction is declined, it cannot be said that the ends of justice will be
defeated and injustice will be perpetuated.
19. The contention that
the respondent-wife has filed the petition for divorce in the court at USA on
the ground of irretrievable breakdown of marriage which is not the ground
provided for divorce under the Act requires consideration. The mere fact that
the respondent-wife has filed the case on the ground which is not available to
her under the Act, doesn't means that there are likelihood of her being
succeeding in getting a decree for divorce. Specifically, in view of the fact
that the appellant has raised this contention before the Circuit Court, Florida
and both the parties will produce evidence with regard to the question whether
their marriage is governed by the Act or any other law.
20. Foreign court cannot
be presumed to be exercising its jurisdiction wrongly even after the appellant
being able to prove that the parties in the present case are continued to be
governed by the law governing Hindus in India in the matter of dispute between
them.
21. In view of above
discussion and after having regard to the nature of case and other peculiar
facts, we do not deem it appropriate to interfere with the decision rendered by
the High Court. We are of the opinion that the proceedings in the Foreign Court
cannot be said to be oppressive or vexatious. The appeal is accordingly
dismissed with no order as to costs.
..........................................J. (R.K. AGRAWAL)
..........................................J. (R. BANUMATHI)
NEW DELHI
APRIL 17, 2018
