indicates that the defendant has invoked the Article 3(1) of the
Council Regulation (EC) No.2201/2003 of 27th November 2003 and
has applied for divorce on the ground that the marriage has broken
down irretrievably and also on the ground that the plaintiff herein
has alleged to have behaved in such a way that the defendant
cannot reasonably be expected to live with the plaintiff. Under the
provisions of the Hindu Marriage Act, 1955, no decree of divorce can
be granted on the ground that marriage has been broken down
irretrievably. This Court while granting ad-interim relief on 30th June
2014 in favour of the plaintiff in this notice of motion has recorded
various reasons and has prima facie observed that the parties
having been married in Mumbai under the provisions of the Hindu
Marriage Act, 1955, that law governs the marriage of the party.
49. This Court also considered that the reliefs have been
sought by the defendant in the Family Court, UK against the plaintiff
not under the provisions of the Hindu Marriage Act, either on the
question of jurisdiction or on the question of grounds for dissolution
but under the English Personal law, one that does not govern the
marriage of the plaintiff and the defendant. Considering these facts,
this Court after recording the detailed reasons, had granted adinterim
injunction in terms of prayer clause (b) of the notice of motion
thereby restraining the defendant from proceeding the divorce
proceedings filed by the defendant against the plaintiff which are
before the Family Court at Manchester, UK. Though by the said
order dated 30th June 2014, this Court had granted liberty to the
defendant to apply for modification, variation or recalling of the said
order by filing an affidavit, the defendant filed a Notion of Motion
bearing No.1774 of 2018 for setting aside the ad-interim order dated
30th June 2014 only on 4th July, 2018. The said ad-interim order
passed by this Court is already in force since 30th June, 2014. The
said notice of motion has been withdrawn by the defendant.
50. Admittedly there are no criminal proceedings filed by the
plaintiff against the defendant and the defendant had no
apprehension if the defendant attends the proceedings filed by the
plaintiff against the defendant in the Family Court, Thane. On the
other hand, if the plaintiff is asked to defend the proceedings filed by
the defendant before the Family Court, Manchester, UK, the
defendant who has always obstructed the entry of the plaintiff in UK,
the plaintiff even otherwise would not be able to defend the
proceedings and that would also without financial assistance of the
defendant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.28 OF 2015
IN
SUIT NO.880 OF 2014
Arunima Naveen Takiar,Vs Naveen Takiar,
CORAM : R.D. DHANUKA, J.
PRONOUNCED ON : 29TH JANUARY, 2019
1. By this notice of motion the applicant (original plaintiff)
seeks ex-parte ad-interim order for staying the divorce proceedings
in MA14D00552 by the defendant and pending before the Family
Court, Manchester, United Kingdom (UK) and also seeks an
injunction against the defendant from proceeding with the said
proceedings. Some of the relevant facts for the purpose of deciding
this notice of motion :
2. It is the case of the plaintiff that the parties to the suit were
engaged in Mumbai on 11th December, 2012 in presence of the
family members. On 12th December, 2012, the parties were married
as per Hindu rites and ceremonies in Shri Ram Mandir, Bandra
(East), Bombay. The marriage was registered at Mira Bhayander
Municipal Corporation. On 17th December, 2012, the defendant along
with his daughters from his first marriage left for UK leaving the
plaintiff behind till her visa papers were processed. During the period
between December, 2012 and July, 2013, the parties were in regular
contact through telephone and email. The plaintiff was regularly
calling the defendant. On 19th March, 2013, the father of the plaintiff
passed away at Mumbai.
3. It is the case of the plaintiff that on 14th July, 2013, the
plaintiff arrived in UK and was received by the defendant at the
airport. From 14th July, 2013 itself, the defendant started ill- treating
the plaintiff and used to pick up fights with her.
4. It is the case of the plaintiff that on 31st August, 2013, the
defendant arrived at the matrimonial home of the parties along with
two policemen asking her to leave the premises. The agreement of
matrimonial home was up for renewal on 1st September, 2013. The
defendant insisted on evicting the plaintiff on 31st August, 2013 and
the plaintiff was forced to pack some of her belongings and was
made to leave the matrimonial home.
5. It is the case of the plaintiff that during the period 31st
August, 2013 and 2nd November, 2013, the plaintiff was placed in a
hotel by the defendant. The defendant however, paid only for 15
days. The plaintiff had to bear the cost of remaining number of days.
6. It is the case of the plaintiff that on 2nd November, 2013,
the plaintiff was forced to leave back to India as she had no
resources remaining to spare. On 22nd November, 2013, the plaintiff
received a confirmation about the job that she had applied for in UK
and decided to travel back to UK. The plaintiff was however, refused
entry in the country, as the defendant had notified the authorities that
he had withdrawn the support of the plaintiff. The plaintiff was
accordingly sent back to India by the next available flight.
7. It is the case of the plaintiff that during the period
November, 2013 till June, 2014, the plaintiff and her family members
constantly tried to reconcile the issues between the parties. The
defendant however, blocked the email and telephone numbers of the
plaintiff and cut off all the communication. Though the plaintiff had
sent the gifts to the defendant on their anniversary, birthday,
birthdays of the children, Christmas and New Year, the defendant did
not give any response.
8. On 18th April, 2014,the plaintiff sent a reconciliation notice
to the defendant asking him to take steps to reconcile the issue.
There was however, no response to the said notice.
9. On 9th June, 2014, the plaintiff was informed by the
electronic email by the lawyer of the defendant that the defendant
had initiated the divorce proceedings in the concerned Court in UK
against the plaintiff. On 14th June, 2014, the plaintiff sent a response
to the said notice dated 9th June, 2014 informing the defendant that
the marriage of parties was governed by the Indian law and the
plaintiff was refusing to accept the jurisdiction of UK Court amongst
other issues. On 16th June, 2014, the plaintiff received the response
from the advocate of the defendant. On 20th June, 2014, the plaintiff
sent a copy of notice dated 14th June, 2014 which was sent to the
defendant and to the concerned Court in Manchester, UK along with
the covering note. On 27th June, 2014, the plaintiff filed this anti
injunction suit for various reliefs. The plaintiff also filed this notice of
motion inter-alia paying for interim reliefs.
10. The defendant filed a written statement on 17th June, 2015
raising various issues including a preliminary objection challenging
the jurisdiction of this Court. By an order dated 30th June, 2014, this
Court passed an ex-parte ad-interim injunction in terms of prayer
clause (b) of the notice of motion thereby restraining the defendant
from proceeding with the said proceedings filed by the defendant
before the Family Court at Manchester, UK. This Court also granted
an opportunity to the defendant to apply for modification, variation or
recalling of the said order by filing an affidavit. The defendant
thereafter filed a Notice of Motion bearing No.1774 of 2018 inter-alia
praying for vacating an ex-parte order dated 30th June, 2014 and for
other reliefs.
11. Ms.Rastogi, learned counsel appearing for the applicant
invited my attention to various annexures to the plaint and submits
that both the parties are admittedly Hindus. The marriage of the
plaintiff with the defendant was solemnized at Mumbai as per the
provisions of Hindu Marriage Act, 1956. The cause of action arose on
31st August,2013 when the defendant evicted the plaintiff from the
matrimonial home of the parties at UK. The cause of action again
arose when the defendant refused to permit the plaintiff to enter the
matrimonial home on 18th October, 2013 and 20th October, 2013. The
cause of action further arose on 2nd November, 2013 when the
plaintiff was forced to return to India due to the conduct of the
defendant. The action of action again arose on 22nd November, 2013
when the plaintiff was refused entry into UK in view of the defendant
having given the information that he had withdrawn the support to the
plaintiff. The cause of action arose subsequently on 18th April, 2014
and on 9th June, 2014 when the plaintiff also applied for leave under
Clause XII of the Letters Patent which came to be granted by this
Court.
12. Learned counsel placed reliance on the judgment of the
Hon'ble Supreme Court in case of Modi Entertainment Network vs.
W.S.G. Cricket Pte.Ltd. AIR 2003 SC 1177 and in particular
paragraph 23 in support of her submission that one of the principle
prescribed by the Hon'ble Supreme Court in the said judgment to be
considered by exercising discretion to grant anti injunction is that in
a case where more forums than one are available, the Court in
exercise of its direction to grant anti-suit injunction will examine as to
which is the appropriate Forum (Forum Conveniens) having regard to
the convenience of the parties and may grant anti-suit injunction in
regard to proceedings which are oppressive or vexatious or in a
Forum Non-Conveniens. She submits that the plaintiff has no
capacity to defend the suit filed by the defendant in the Family Court
in UK. The defendant has stopped supporting the plaintiff. The entry
of the plaintiff was also stopped by the defendant and the plaintiff had
visited UK by airport itself. It is thus not the plaintiff to visit UK and to
prosecute the said proceedings filed by the defendant. This Court
thus exercised its discretion in favour of the plaintiff in view of the
fact that the divorce proceedings filed by the defendant being
oppressive or vexatious and since it was not convenient to the
plaintiff to pursue the proceedings filed by her, if any, before the
Courts in India.
13. Learned counsel placed reliance on an unreported
judgment delivered on 11th December, 2014, in case of Ravindra
Harshad Parmar vs. Dimple Ravindra Parmar in Family Court
Appeal No.72 of 2014 and in particular paragraph 32 in support of
her submission that Hindu Marriage Act, 1955 would apply to the
parties though residing outside India but after marriage was
performed in accordance with the Hindu Marriage Act, 1955 and in
India.
14. Learned counsel for the plaintiff placed reliance on the
judgment of the Hon'ble Supreme Court in case of Sondur Gopal
vs. Sondur Rajini decided on 15th July, 2013 in Civil Appeal
Nos.4629 of 2005 and 487 of 2007 in support of the submission that
even if the defendant has obtained the domicile in UK, the divorce
proceedings filed by the defendant before the UK Court is not
maintainable in view of the fact that the plaintiff and the defendant
were admittedly married in Mumbai and were governed by the
provisions of Hindu Marriage Act, 1955.
15. Learned counsel for the plaintiff placed reliance on Article
3(1) of Council Regulation (EC) No.2201/2003 of 27th November,
2003 on the issue of jurisdiction and the recognition and enforcement
of judgments in matrimonial matters and the matters of parental
responsibility. She submits that the plaintiff has already filed the
petition for restitution of conjugal rights against the defendant before
the Family Court, Thane and the same is pending. The defendant
admittedly visits India. There is no criminal proceedings filed by the
plaintiff against the defendant. The defendant has thus no
apprehension if the defendant attends the proceedings filed by the
plaintiff before the Family court, Thane. The defendant also could
have filed the divorce proceedings before the Family Court in India.
Learned counsel invited my attention to the reasoned ad-interim
order passed by this Court on 30th June, 2014 and would submit that
the said order being in force since then and be confirmed by this
Court.
16. Mr.Khare, learned counsel appearing for the defendant on
the other hand invited my attention to some of the exhibits and also
some of the paragraphs of the plaint. He submits that the defendant
is a natural citizen of UK and also domiciled in UK and thus the
provisions of the Hindu Marriage Act, 1955 is not applicable to the
defendant. The anti injunction suit thus filed by the plaintiff is not at all
maintainable. He submits that merely because the defendant has
filed a written statement in this anti injunction suit filed by the plaintiff,
the same cannot be construed as the defendant submitting to the
jurisdiction of the Courts in India.
17. It is submitted that after the marriage of the plaintiff with
the defendant, she had joined the defendant and his daughters in
their house at UK and was erratic and unreasonable from the very
first day. The defendant has never changed his domicile from UK to
India. The defendant stayed barely four to five days after the
marriage with the plaintiff in India and left for UK. He submits that the
defendant was domiciled at the time of marriage and ever since his
birth in UK and thus the question of applicability and the provisions
of the Hindu Marriage Act, 1955 to a party who was not domiciled in
India, did not arise. He placed reliance on section 1(2) of the Hindu
Marriage Act, 1955 in support of his submission that the Hindu
Marriage Act, 1955 applies to Hindus domiciled in the territories to
which this Act extends. The person must be not only Hindu but must
be domiciled in India. This Court does not have supervisory
jurisdiction over the defendant and thus cannot entertain this anti
injunction suit filed by the plaintiff.
18. Learned counsel for the defendant submits that the
defendant works and resides in UK and is not going to change his
domicile from UK. He placed reliance on the judgment of the Delhi
High Court in case of Anoop Beniwal vs. Dr.Jabir Singh Beniwal in
Suit No.905 of 1989, decided on 25th October, 1989 and in particular
paragraphs 15, 27, 28, 32 to 35 and 39 to 42 in support of the
submission that the plaintiff will have an opportunity to defend the suit
filed by his client in appropriate Court in UK. There are no allegations
of fraud made by the applicant against the defendant.
19. Leaned counsel for the defendant placed reliance on the
judgment of the Supreme Court in case of Sondur Gopal (supra)
and would submit that the said judgment would assist the case of the
defendant and not the plaintiff. He also placed reliance on the
judgment of the Hon'ble Supreme Court in case of Dinesh Singh
Thakur vs. Sonal Thakur, 2018 SCC OnLine SC 390 and in
particular paragraphs 9, 10, 12 to 14 and 17 to 20 in support of his
submission that the Court before passing an order of injunction in an
anti injunction suit should be very cautious and careful and cannot
exercise such powers as a matter of routine.
20. Learned counsel for the defendant distinguished the
judgment of the Division Bench of this Court in case of Ravindra
Harshad Parmar (supra) on the ground that in that matter, the
respondent did not have property in India. In this case, the defendant
is citizen of UK by birth. He also placed reliance on various
paragraphs of the written statement filed by his client stating that his
client does not have any property in India.
21. Ms.Rastogi, learned counsel for the plaintiff in rejoinder
invited my attention to paragraphs 3 and 4 of the affidavit in support
of the notice of motion and would submit that the plaintiff has no
capacity to pursue the proceedings before the Court in UK hearing
the divorce proceedings filed by the defendant. The sponsorship of
the plaintiff by the defendant is already cancelled by the defendant.
She submits that the marriage of the plaintiff and the defendant was
admittedly solemnized in India. The registration of marriage was at
Mira Bhayander, Thane. The defendant has taken steps to get the
spouse visa of the plaintiff in UK. The plaintiff had not given up the
jurisdiction of the Courts in India and never filed any appearance in
such proceedings before the Court in UK.
22. Learned counsel for the plaintiff placed reliance on section
19 of the Hindu Marriage Act, 1955 in support of her submission that
the divorce proceedings could be filed only at Mumbai and not in UK.
She distinguished the judgment of the Delhi High Court in case of
Anoop Beniwal (supra) on the ground that the facts before the
Delhi High Court in the said judgment were totally different. The wife
had already led oral evidence in the divorce proceedings filed by the
husband. In this case, the plaintiff did not even enter her appearance
in the said divorce proceedings filed by the defendant. The plaintiff
has never participated in the said proceedings also on the ground
that the plaintiff did not have any means to participate.
23. Learned counsel for the plaintiff distinguished the
judgment of the Hon'ble Supreme Court in case of Sondur Gopal
(supra) on the ground that in this case the plaintiff had stayed with
the defendant for one and half months and separately for two months
in UK. Learned counsel for the plaintiff distinguished the judgment of
the Hon'ble Supreme Court in case of Dinesh Singh Thakur (supra)
on the ground that in that matter both the parties had chosen to
contest the matter outside India. She submits that in any event
paragraph 17 of the said judgment is in favour of the plaintiff and not
the defendant. The plaintiff does not intend to file any criminal
proceedings against the defendant.
24. Mr.Khare, learned counsel for the defendant submits that
the Hon'ble Supreme Court in case of Dinesh Singh Thakur (supra)
has set aside the order of anti suit injunction. He submits that since
the UK Court is already ceased of the matter, this Court shall vacate
the ex-parte ad-interim injunction passed by this Court and shall
dismiss the notice of motion filed by the plaintiff.
REASONS AND CONCLUSIONS :
25. A question that arises for consideration of this Court is as
to whether the respondent could have filed the petition for divorce
against the plaintiff before the Family Court in Manchester against
the plaintiff though the marriage between the plaintiff and the
defendant, both Hindus was solemnized at Mumbai or not ?
26. It is the case of the plaintiff that the plaintiff has been
residing in India. The plaintiff and the defendant both Hindus were
married as per the rites and ceremonies on 12th December, 2012 in
Mumbai under the provisions of Hindu Marriage Act, 1955. The said
marriage was registered with Mira Bhayander Municipal Corporation.
The parties also had co-habited after the marriage in Mumbai and
then in Delhi. The defendant has been residing in U.K. with his two
daughters from the earlier marriage.
27. A perusal of the written statement filed by the defendant
also clearly indicates that the marriage between the plaintiff and the
defendant was solemnized at Mumbai and was registered with the
Mira Bhayender Municipal Corporation. It is also not in dispute that
both the parties are Hindus. The plaintiff has annexed a copy of the
divorce petition filed by the defendant dated 27th May, 2014. A
perusal of the said petition indicates that it is the case of the
defendant in the petition that the said Manchester Court had
jurisdiction to hear the said case under Article 3(1) of the Council
Regulation (EC) No.2201 of 2003 on 27th November, 2003. The said
petition for divorce was filed on the ground that the marriage had
allegedly broken down irretrievably by the respondent (plaintiff
herein) had behaved in such a way that the petitioner (defendant
herein) could not reasonably be accepted to live with the respondent
(plaintiff herein). In the said petition, the defendant herein also
admitted that the religious marriage ceremony between the plaintiff
and the defendant was conducted in Mumbai on 12th December,
2012 and the said marriage was registered on 10th January, 2013.
28. It is also the case of the defendant in the said petition that
the plaintiff herein was granted resident visa and entered the U.K. on
14th July, 2013. The parties lived together at the residence of the
defendant herein at 30 Kingsbury Drive along with two children from
his previous marriage. Shortly after the plaintiff herein arrived, she
started to behave in a very controlling and confrontational manner
and started making various allegations. The defendant accordingly
contacted Cheshire police on 25th August, 2013. The plaintiff agreed
to move in the hotel for which the defendant has allegedly paid for. It
is thus clear that it is an admitted position that both the parties are
Hindus and their marriage was performed in Mumbai and the same
was registered with Mira Bhayender Municipal Corporation. The
defendant has not disputed that the said marriage was performed
under the provisions of the Hindu Marriage Act, 1955.
29. There is no dispute that the plaintiff herein has filed a
separate petition before the Family Court, Thane inter-alia praying for
restitution of conjugal rights against the defendant. The defendant
has been attending the said proceedings.
30. It is also the case of the plaintiff that the defendant forced
the plaintiff to leave back to India and accordingly on 2nd November,
2013, the plaintiff having no resources remaining to spare thereto
returned to India. Though the plaintiff had made an attempt to visit
U.K. in view of the confirmation about the job that she had applied for
in U.K., the plaintiff was however, refused entry in the said country, as
the defendant had notified the authorities that the defendant had
withdrawn the support of the plaintiff. The plaintiff was accordingly
sent back in India by the next available flight. It is the case of the
plaintiff that she was placed in a hotel by the defendant during the
period 31st August, 2013 and 2nd November, 2013. The defendant
however paid only for 15 days. The plaintiff had to bear the costs of
remaining number of days exclusively. The plaintiff in these
circumstances, was made to leave the matrimonial home.
31. It is also the case of the plaintiff that when the plaintiff
received a notice from the lawyer of the defendant that the defendant
had initiated the divorce petition in a Court in U.K. against the
plaintiff, the plaintiff sent a response to the said notice on 14th June,
2014 and informed that the marriage of the parties was governed by
Indian Law and the plaintiff was refusing to accept the jurisdiction of
U.K. Court against other issues. The plaintiff also informed that the
plaintiff has no shelter and relatives around in U.K. and the plaintiff is
not in a position to defend herself before the Family Court in
Manchester as this was not a Forum acceptable and applicable to
her. The plaintiff also contended that since the defendant had not
paid any moneys towards the maintenance to the plaintiff and that
was a Forum Non-Conveniens, it was monetarily not possible for the
plaintiff to incur huge expenses towards defending herself before the
Forum Court of law.
32. On the other hand, it is the case of the defendant that
though the parties are Hindus and their marriage was solemnized in
Mumbai, the defendant is a citizen of U.K. and was born in the said
country and had ever since resided there and being domiciled, in
view of section 1(2) of the Hindu Marriage, Act, 1955, the provisions
of the Hindu Marriage Act, 1955 are not applicable to the defendant
and thus the defendant was entitled to file a petition for divorce
before the Family Court, Manchester.
33. The Division Bench of this Court in case of Ravindra
Parmar vs. Dimple Ravindra Parmar in a judgment dated 11th
December, 2014 in Family Appeal No.72 of 2014 has after adverting
to various judgments including the judgment of the Hon'ble Supreme
Court in case of Sondur Gopal vs. Sondur Rajini, (2006) 3 AIR
Bombay 487 and also unreported judgment of this Court in case of
Nikhil Shrinivas Kulkarni vs. Priya Nikhil Kulkarni delivered on
20th February, 2014 in Family Appeal No.237 of 2013 has held that
since the marriage was solemnized in Mumbai and both the parties
were Hindus at the time of marriage and it was nobody's case that
either of them were disqualified by reason of non-compliance of
conditions under section 5, the parties were governed under the
provisions of the Hindu Marriage Act, 1955.
34. The Division Bench of this Court in case of Nikhil
Srinivas Kulkarni (supra) had considered the question as to
whether the Family Court in India has got jurisdiction to try the matter
involving a party whose domicile was outside the territory to the
Hindu Marriage Act, 1955 or not. The Division Bench of this Court in
the said judgment after adverting to various judgments and after
construing the provisions of section 1 of the Hindu Marriage Act,
1955 and section 19 thereof, held that in case the marriage was
solemnized under the Hindu law, the matrimonial relationship is
governed by the provisions of the Hindu Marriage Act, 1955. Section
19 of the Hindu Marriage Act, 1955 has to be given a purposeful
interpretation. This Court held that when the marriage was
solemnized under the Hindu Law, the proceedings for divorce has
also to be made under the provisions of the Hindu Marriage Act,
1955. A party cannot take any exception to the proceedings in India
under the provisions of the Hindu Marriage Act, 1955 merely on
account of his citizenship or domicile in U.S.A.
35. This Court after adverting to the judgment of the Hon'ble
Supreme Court in case of Y. Narasimharao vs. Y. Venkatalakshmi,
(1991) 3 SCC 451 held that there was no question of wife initiating
the divorce proceedings before the Court at USA invoking the
provisions of the Hindu Marriage Act, 1955. It is held that the
husband had married the wife in India as per the Hindu Vedik Rites
under the provisions of the Hindu Marriage Act, 1955, and thus
subjected himself to the jurisdiction of the Court designated with the
matrimonial disputes under section 19 of the Hindu Marriage Act,
1955. It is also held that section 19 of the Hindu Marriage Act, 1955
clearly gives the jurisdiction to the Court to deal with the matrimonial
proceedings in whose jurisdiction marriage was solemnized.
36. The Division Bench of this Court adverted to the judgment
of the Hon'ble Supreme Court in case of Surinder Kaur Sandhu vs.
Harbax Singh Sandhu & Anr., (1984) 3 SCC 698, in which it was
held by the Hon'ble Supreme Court that it is the duty and function of
the Court to protect the wife against the burden of litigating in an
inconvenient Forum. The Division Bench held that a wife had no
support in U.S.A., she was always an Indian citizen domiciled, her
travel to U.S.A. on fiancee visa after the marriage could be held as
the act of innocent mind and excessive belief in her husband. It
would be unfair to ask the wife to travel to hostile territory only to
redress her grievance. The Division Bench of this Court accordingly
held that the Family Court at Pune had got jurisdiction to try the
matrimonial litigation initiated by the respondent notwithstanding the
fact that the appellant is a citizen of United States of America and not
an ordinary resident in India.
37. The Hon'ble Supreme Court in case of Y. Narasimharao
(supra) has held that under the private International Law, domicile of
wife does not follow that of the husband and thus domiciliary law of
the husband cannot determine the jurisdiction of Forum or applicable
law. The Hon'ble Supreme Court in the similar facts held that a
decree of divorce obtained by the husband, from a foreign Court was
not enforceable in law in India.
38. In my view, the provisions of section 1(2) of the Hindu
Marriage Act, 1955 has to be read with section 19 of the Hindu
Marriage Act, 1955 which clearly provides for jurisdiction of the Court
where the petition under the said Act shall be presented. Section
19(i) clearly provides that such proceedings have to be presented
before the District Court within whose limits the marriage was
solemnized. Admittedly in this case, the marriage was solemnized in
Mumbai and thus merely because the defendant is having domiciled
of U.K. whether by birth or by choice or otherwise would be no
significance and would not divest the jurisdiction of the Court
provided under section 19 of the Hindu Marriage Act, 1955 for the
purpose of filing the proceedings under the provisions of the Hindu
Marriage Act, 1955.
39. The Hon'ble Supreme Court in the case of Sondur Gopal
vs. Sondur Rajini (supra) has held that the domicile are of three
kinds viz. domicile of origin, the domicile by operation of law and
the domicile of choice. The Hon'ble Supreme Court considered the
fact that the wife at the time of presentation of petition for judicial
separation and for custody of children was resident of India. Parties
were governed by the Hindu Marriage Act, 1955. The husband who
was foreign resident had raised an issue of jurisdiction in the
proceedings filed before the Family Court filed by the wife in India.
The petitioner before the Hon'ble Supreme Court lost one of the
proceedings before the lower Court refusing to grant injunction in
the said proceedings filed by wife. The Supreme Court refused to
interfere in the Special Leave Petition filed by the husband. In my
view, the judgment of the Hon'ble Supreme Court in the case of
Sondur Gopal vs. Sondur Rajini (supra) would assist the case of
the plaintiff and not the defendant.
40. Insofar as the judgment of the Hon'ble Supreme Court in
the case of Dinesh Singh Thakur vs. Sonal Thakur (supra) relied
upon by the learned counsel for the defendant in support of the
submission that in case of anti-suit injunction, though the Court has
power to grant anti-suit injunction, the same can be granted sparingly
and not as a matter of routine is concerned, there is no dispute about
the proposition of law laid down by the Hon'ble Supreme Court in the
said judgment. Before the Hon'ble Supreme Court in the said matter,
the marriage between the parties was admittedly soleminized as per
the Hindu rites in India. The 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 and obtained “PIO” status (Person of
India Origin) in June 2003 and “OCI” status (Overseas Citizens of
India) in July, 2006.
41. The husband had filed a petition under sections 13 and
26 of the Hindu Marriage Act, 1955 against respondent-wife in the
Family Court, Gurgaon which was pending adjudication before the
Court. The respondent-wife filed a petition 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. The husband thereafter, filed proceedings before the
District Judge, Family Court, Gurgaon, under section 7 of the Act for
permanent injunction and declaration. The respondent-wife
succeeded before the lower Court and the High Court. The husband
filed Special Leave Petition before the Hon'ble Supreme Court. The
Hon'ble Supreme Court adverted to the another judgment in the
case of Y. Narasimha Rao & Ors. vs. Y. Venkata Lakshmi & Anr.,
(1991) 3 SCC 451 in which the Hon'ble Supreme Court has held that
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 subject to the
exceptions i.e. (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 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.
42. The Hon'ble Supreme Court also held that there was
nothing on record to show as to how the husband would suffer grave
injustice if the injunction restraining the wife from pursuing the
divorce petition in Florida, was not granted. Even if the injunction is
declined, it could not be said that the ends of justice will be defeated
and injustice will be perpetuated. The Hon'ble Supreme Court
dismissed the said Special Leave Petition filed by the husband. The
facts before this Court are however different. The plaintiff had never
given up domicile of this country. Admittedly the plaintiff was in UK
for very short period. In view of the obstruction created by the
defendant, the plaintiff was required to return back to India. Since
then, the plaintiff has been continuously staying within the jurisdiction
of this Court. The plaintiff had never submitted to the jurisdiction of
UK Court where the proceedings have been filed by the defendant
seeking divorce nor has given any consent to the grant of relief
sought by the defendant in the divorce petition. In my view, the
judgment of the Hon'ble Supreme Court in the case of Dinesh
Singh Thakur vs. Sonal Thakur (supra) would not assist the case
of the defendant but would assist the case of the plaintiff.
43. In my view, the defendant has even otherwise created
such a situation for the plaintiff that the plaintiff is not able to defend
the said proceedings filed by the husband. Though the defendant
filed Divorce petition before the Family Court at UK, no maintenance
at all has been paid to the plaintiff by the defendant. When the
plaintiff visited UK after marriage with the defendant, the defendant
took assistance of police and forced the plaintiff to return to India.
The sponsorship of the plaintiff was also cancelled by the defendant.
In my view, in these circumstances, this is a fit case for exercising
the powers of this Court to grant an order of anti-suit injunction. This
matter cannot be considered as a matter of routine as sought to be
canvassed by the learned counsel for the defendant.
44. The Hon'ble Supreme Court in the case of Surinder Kaur
Sandhu vs. Harbax Singh Sandhu & Anr. (supra) has held that it
is the duty and function of the Court to protect the wife against the
burden of litigating in an inconvenient forum. The plaintiff has no
support in UK and she was always an Indian citizen domiciled in
India. It will be unfair to ask her to travel to hostile territory only to
redress her grievance. In my view, the principles of law laid by the
Hon'ble Supreme Court in the case of Surinder Kaur Sandhu Vs.
Harbax Singh Sandhu & Anr. (supra) would squarely apply to the
facts of this case.
45. The entry of he plaintiff is restricted by the defendant from
all sources in the country where the divorce petition has been filed
by the defendant. In these circumstances, the plaintiff is not
expected to defend the said proceedings in the country, having
been filed by the defendant inspite of the fact that the marriage
between the parties having been solemnized under the provisions of
the Hindu Marriage Act, 1955 and both the parties being Hindus at
the time of their marriage, only the said provisions would be
applicable to the parties.
46. The Hon'ble Supreme Court in the case of Modi
Entertainment Network and Anr. vs. W.S.G. Cricket Pte. Ltd.
(supra) has considered the scope of powers of the Court for
granting anti-suit injunction. The Hon'ble Supreme Court has
summarized the principles to be considered while exercising the
discretion to grant anti-suit injunction by the Court. It is held by the
Hon'ble Supreme Court that the Court has to see that the defendant,
against whom an 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. Where more
forums than one are available, the Court in exercise of its discretion
to grant anti-suit injunction will examine as to which is the appropriate
forum (Forum Conveniens) having regard to the convenience of the
parties and may grant anti-suit injunction in regard to proceedings
which are oppressive or vexatious or in a Forum Non-Conveniens. In
my view, in the facts of this case, an appropriate forum (Forum
Conveniens) for the plaintiff would be the Court in India i.e. the Court
within whose jurisdiction, the plaintiff and the defendant were
married under the provisions of the Hindu Marriage Act, 1955, the
plaintiff resides and is not paid any maintenance by the defendant.
47. Learned counsel for the defendant does not dispute before
this Court that the defendant has attended the proceedings in past
in India filed by the plaintiff for seeking restitution of conjugal rights.
On the other hand, if the plaintiff is forced to defend the proceeding
filed by the defendant in UK, the same would be oppressive and
would cause hardship to the plaintiff. The principles of law laid down
by the Hon'ble Supreme Court in the case of Modi Entertainment
Network & Anr. vs. W.S.G. Cricket Pte. Ltd. (supra) would
squarely apply to the facts of this case. In my view, the plaintiff has
made out a case for exercising the powers of the Court to grant antisuit
injunction against the defendant from proceeding the divorce
petition filed by the defendant against the plaintiff being a Family
Court in UK.
48. A perusal of the divorce petition filed by the defendant
indicates that the defendant has invoked the Article 3(1) of the
Council Regulation (EC) No.2201/2003 of 27th November 2003 and
has applied for divorce on the ground that the marriage has broken
down irretrievably and also on the ground that the plaintiff herein
has alleged to have behaved in such a way that the defendant
cannot reasonably be expected to live with the plaintiff. Under the
provisions of the Hindu Marriage Act, 1955, no decree of divorce can
be granted on the ground that marriage has been broken down
irretrievably. This Court while granting ad-interim relief on 30th June
2014 in favour of the plaintiff in this notice of motion has recorded
various reasons and has prima facie observed that the parties
having been married in Mumbai under the provisions of the Hindu
Marriage Act, 1955, that law governs the marriage of the party.
49. This Court also considered that the reliefs have been
sought by the defendant in the Family Court, UK against the plaintiff
not under the provisions of the Hindu Marriage Act, either on the
question of jurisdiction or on the question of grounds for dissolution
but under the English Personal law, one that does not govern the
marriage of the plaintiff and the defendant. Considering these facts,
this Court after recording the detailed reasons, had granted adinterim
injunction in terms of prayer clause (b) of the notice of motion
thereby restraining the defendant from proceeding the divorce
proceedings filed by the defendant against the plaintiff which are
before the Family Court at Manchester, UK. Though by the said
order dated 30th June 2014, this Court had granted liberty to the
defendant to apply for modification, variation or recalling of the said
order by filing an affidavit, the defendant filed a Notion of Motion
bearing No.1774 of 2018 for setting aside the ad-interim order dated
30th June 2014 only on 4th July, 2018. The said ad-interim order
passed by this Court is already in force since 30th June, 2014. The
said notice of motion has been withdrawn by the defendant.
50. Admittedly there are no criminal proceedings filed by the
plaintiff against the defendant and the defendant had no
apprehension if the defendant attends the proceedings filed by the
plaintiff against the defendant in the Family Court, Thane. On the
other hand, if the plaintiff is asked to defend the proceedings filed by
the defendant before the Family Court, Manchester, UK, the
defendant who has always obstructed the entry of the plaintiff in UK,
the plaintiff even otherwise would not be able to defend the
proceedings and that would also without financial assistance of the
defendant.
51. In so far as the judgment of the Delhi High Court in the
case of Mrs.Anoop Beniwal vs. Dr.Jagbir Singh Beniwal (supra)
relied upon by the learned counsel for the defendant is concerned, a
perusal of the said judgment indicates that in the said judgment, the
wife had submitted to the jurisdiction of the Court of England where
the husband had filed the proceedings against the wife. Oral
evidence was also recorded in those proceedings by the wife. In my
view, the judgment of the Delhi High Court in the case of Mrs.Anoop
Beniwal vs. Dr.Jagbir Singh Beniwal (supra) is thus distinguishable
in the facts of this case and would not assist the case of the
defendant.
52. For the reasons recorded aforesaid, the plaintiff has made
out a case for grant of anti-suit injunction as prayed.
53. I therefore pass the following order :-
i). The Notice of of motion is made absolute in terms of
prayer clauses (a) and (b).
ii). There shall be no order as to costs.
(R.D. DHANUKA, J.)
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