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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 70/2017 I.A. 2068/2017
MRS. JASMEET KAUR ….. Plaintiff
Through: Ms. Malavika Rajkotia, Advocate
with Mr. Ramakant Sharma and
Ms. Akriti Tyagi, Advocates.
versus
MR. NAVTEJ SINGH ….. Defendant
Through: Mr. Anil Malhotra, Advocate with
Mr. Ranjit Malhotra and Mr. Rajat
Bhalla, Advocates.
Reserved on : 01st December, 2017
% Date of Decision : 20th December, 2017
CORAM:
HON’BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J:
I.A. 3132/2017
1. Present application has been filed under Order VII Rule 10 CPC
for rejection of the plaint, dismissal and return of the suit. However, at
the outset, learned counsel for the defendant confined his prayer for
return of the plaint under Order VII Rule 10 CPC.
2. Mr. Anil Malhotra, learned counsel for defendant stated that the
anti-suit injunction sought by the plaintiff-wife pertained to a
suit/proceeding in relation to guardianship and custody/access of two
CS(OS) 70/2017 Page 1 of 15
minor children which fell within the ambit and scope of Section 7(1)
Explanations (d) and (g) of the Family Courts Act, 1984.
3. He submitted that Section 7(1) Explanation (d) of the Family
Courts Act, 1984 enumerates that “a suit or proceeding for an order or
injunction in circumstances arising out of a marital relationship”, and
Section 7(1) Explanation (g) states that, “a suit or proceeding in relation
to the guardianship of the person or the custody of, or access to, any
minor,” shall fall within the jurisdiction of the Family Court. He stated
that Section 8 of the Family Courts Act, 1984, stipulates that no District
Court shall “exercise any jurisdiction in respect of any suit or proceeding
of the nature referred to in the Explanation” of Section 7(1) of the Act.
Hence, according to him, any suit or proceeding for an order or
injunction in circumstances arising out of a marital relationship or
guardianship/custody shall lie only before the Family Court.
4. Mr. Malhotra further submitted that in view of the Division Bench
judgment of this Court in Amina Bharatram Vs. Sumant Bharatram
and Ors., CS(OS) 411/2010 dated 19th July, 2016 and the practice
directions dated 23rd December, 2016, issued by the Registrar of this
Court, any petition for matrimonial cause under the Hindu Marriage Act
(now, Family Courts Act) has to be filed in the District Court of
competent jurisdiction.
5. Mr. Malhotra pointed out that in Minakshi Sahlot Vs. Gourav
Choudhary, CS(OS) No.340/2016 dated 27th October, 2016, a
Coordinate Bench of this Court following Amina Bharatram (Supra) has
held that in cases seeking anti-suit injunction arising/emanating from a
matrimonial relationship would have to be transferred to the Family
CS(OS) 70/2017 Page 2 of 15
Court.
6. Mr. Malhotra emphasised that in the case of Minakshi Sahlot
(Supra) a Coordinate Bench had distinguished and clarified the earlier
judgment of a Coordinate Bench of this Court in Suraj Seth Vs. Ruchika
Abbi, 2014 SCC OnLine Del.6999.
7. Per contra, Ms. Malavika Rajkotia, learned counsel for plaintiff-
wife submitted that in case of Suraj Seth (Supra) a Coordinate Bench of
this Court has held that an anti-suit injunction filed by the defendant-wife
against her plaintiff-husband seeking orders to restrain him from
prosecuting a case instituted by her in New York, USA, cannot be said to
be a proceeding in relation to the guardianship of any person or the
custody of, or access to any minor. The relevant portion of the judgment
in Suraj Seth (Supra) relied upon by the learned counsel for plaintiff-
wife is reproduced herienbelow:-
“9. …Anti suit injunction is claimed to debar the Defendant
from prosecuting the proceedings before the Court in USA
and thus, the instant suit cannot be said to be to obtain an
order of injunction arising out of a marital relationship.
Similarly, the instant suit cannot be said to be a proceeding in
relation to the guardianship of any person or the custody of,
or access to any minor….
10. Irrespective of the fact that whether the Plaintiff has
any cause on merits or not it cannot be said that the suit is
barred in view of provisions of Section 7 of the Act.”
8. She admitted that a similar issue had been raised in the case of
Minakshi Sahlot (Supra), in which the anti-suit injunction had been
directed to be transferred to the Family Court. She, however, pointed out
CS(OS) 70/2017 Page 3 of 15
that in the said case the Division Bench in an appeal being FAO(OS)
329/2016 had made the following observations vide its order dated 16 th
November, 2016:-
“Prima facie, we are in agreement with the submissions made
by the learned counsel for the appellant that the impugned
judgment is contrary to the decision of another Single Bench
in the case of Suraj Singh (supra). It is well settled that a
bench of a court is bound by a decision of a co-ordinate
Bench and, if it feels that there is contrary view possible, the
only course open to it is to refer the matter to a larger Bench.
Unfortunately, this was not done in the present case.
Therefore, we are staying the operation of the impugned
judgment….”
9. Ms. Rajkotia submitted that the practice direction issued by this
Court dated 23rd December, 2016 under Section 7(1) of the Family
Courts Act, 1984, did not cover anti-suit injunctions as they deal with
more complex issues than family disputes. According to her, the idea of
anti-suit injunction is to streamline the process of litigation between the
contesting parties and to oversee all the disputes amongst them.
10. She further submitted that as the Division Bench in the case of
Minakshi Sahlot (Supra) had left open the question of law (i.e. whether
the anti-suit injunction filed in the matter arising out of a matrimonial
relationship is barred under Section 7(1) of the Family Courts Act, 1984),
the matter should be referred to a Division Bench for an authoritative
pronouncement.
11. In rejoinder, Mr. Malhotra stated that for the purposes of Section
7(1) Explanation (d) of the Family Courts Act, 1984, a suit or proceeding
arising out of a marital relationship and seeking an
CS(OS) 70/2017 Page 4 of 15
order/injunction/judgment/decree, “in circumstances arising out of a
marital relationship”, shall include an anti-suit injunction, suit for
declaration, permanent injunction and damages arising therefrom. He
submitted that the Supreme Court in Modi Entertainment Network
Anr., Vs. W.S.G. Cricket Pte. Ltd., AIR 2003 SC 1177 has held as
under:-
“…..The principles governing grant of injunction-an equitable
relief-by a court will also govern grant of anti-suit injunction
which is but a species of injunction. When a court restrains a
party to a suit/proceeding before it from instituting or
prosecuting a case in another court including a foreign court,
it is called anti-suit injunction. It is a common ground 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. This is because Courts of equity exercise
jurisdiction in personam. However, having regard to the rule
of comity, this power will be exercise sparingly because such
an injunction though directed against a person, in effect
causes interference in the exercise of jurisdiction by another
court.”
(emphasis supplied)
12. Consequently, according to him, an anti-suit injunction is only a
species of an injunction suit and the principles governing grant of an
injunction by a Court also govern grant of anti-suit injunction. Therefore,
the phrase, “anti-suit injunction” has to be read as a part and parcel of the
word injunction as it belongs to the same class and substantively seeks
similar relief under a different nomenclature. He pointed out that the
Bombay High Court in Sandip Shankarlal Kedia Vs. Pooja Kedia,
2013(3) ABR 1380 has held as under:-
CS(OS) 70/2017 Page 5 of 15
“….Courts would act in exercising their inherent powers in the
interest of justice to grant injunctions. An anti-suit injunction
application would fall only under the inherent power of the
Court and is consequently covered by precedent law.”
13. Hence, according to him, the words ‘anti-suit injunction’ cannot be
divorced from the word ‘injunction’, for a different connotation or legal
meaning, as by terminology, though, they may sound different, but, both
of them are part of the same species and group.
14. Having heard learned counsel for the parties, this Court is of the
view that the issue that arises for consideration in the present application
is as to whether the anti-suit injunction is covered by Section 7(1) of the
Family Courts Act, 1984.
15. Ordinarily speaking, a civil suit, be it an injunction suit or an anti-
suit injunction, arising out of cause of action of a civil nature, would be
governed by Section 9 CPC. In accordance with the said section, all
injunctions/anti-suit injunctions of a civil nature, have to be tried by a
Civil Court “excepting suits of which their cognizance is either expressly
or impliedly barred.”
16. In Dhulabhai Vs. State of M.P. (1968) 3 SCR 662, it has been
held that the jurisdiction of the Civil Courts is all embracing except to the
extent it is excluded by an express provision of law or by clear
intendment arising from such law. The ouster of the jurisdiction of a
Civil Court is not to be lightly inferred and can only be established if
there is an express provision of law or is clearly implied. The Supreme
Court further held that ouster can be implied only when the right is
created by the Statute and machinery for its enforcement is provided
therein.
CS(OS) 70/2017 Page 6 of 15
17. This Court in Rupali Lamba Anr. Vs. Sukhwant Singh Lamba
in IPA No. 28/2015 decided on 24th August, 2017 following Amina
Bharatram (Supra) has held that the jurisdiction to try and decide cases
of causes listed under Sections 7 and 8 of the Family Courts Act, 1984
lies with the Family Courts. The relevant portion of the judgment in
Rupali Lamba (Supra) is reproduced hereinbelow:-
“5. In the opinion of this Court, as the primary relief in
the present petition is for maintenance under the Hindu
Adoption and Maintenance Act, 1956, the same is liable to
be transferred to the Family Court in view of the Division
Bench‟s judgment of this Court in Amina Bharatram
(supra). The relevant portion of the said judgment is
reproduced hereinbelow:-
“1. These proceedings emanate from an order of reference
dated 09.06.2014 (“Reference Order”) made by the Learned
Single Judge in CS(OS) No. 411/2010 (“Suit”), formulating
the following questions of law for adjudication by this Court:
“(i) Whether the High Court while exercising the
Original Civil Jurisdiction is deemed to be a District
Court within the meaning of Section 2(4) of CPC in the
context of Section 7(1)(a) of the Family Courts Act,
1984?
(ii) Whether the original civil jurisdiction of the High
Court excluded (sic) for any suit or petition by virtue of
Sections 7 8 of the Family Courts Act, 1984?”
xxxx xxxx xxxx xxxx
32. This Court agrees with the plaintiff‟s submission that
an earlier specific enactment would prevail over a
subsequent legislation which is general in nature –
affirmed recently by the Supreme Court in Yakub Abdul
Razak Memon v. State of Maharashtra, (2013) 13 SCC 1.
Both the Delhi High Court Act (Section 5) and the
Family Courts Act (Section 20) contain non-obstanteCS(OS) 70/2017 Page 7 of 15
provisions. In Yakub Memon‟s case, the Court held that
where two statutes provide non-obstante clauses, the
principle that the later legislation would override the
earlier one is subject to the principle of
„generaliaspecialibus non derogant‟. A determination as
to whether a statute is a general or a specific one
requires an examination of its subject matter and the
purpose for which it was enacted. Plaintiff urges that the
Delhi High Court Act, 1966 is a special enactment and
therefore, it ought to prevail over the Family Courts Act,
1984. However, this Court is of the opinion that it is the
Family Courts Act, instead, which is specific in nature,
as it seeks to constitute a special mechanism for
adjudication of disputes of the nature enumerated in
Section 7 of the Act (details of the distinct nature of the
procedure created under the Act have been discussed
above).On the other hand, the Delhi High Court merely
provides for original civil jurisdiction of this Court based
on a prescribed pecuniary limit, which is applicable to
all civil suits. The following observations of the Supreme
Court in Abdul Jaleel‟s case (supra) support this Court‟s
conclusion that the Family Courts Act is specific in
nature:
“The Family Courts Act was enacted to provide for the
establishment of Family Courts with a view to promote
conciliation in, and secure speedy settlement of, disputes
relating to marriage and family affairs and for matters
connected therewith. From a perusal of the Statement of
Object and Reasons, it appears that the said Act, inter
alia, seeks to exclusively provide within the jurisdiction
of the Family Courts the matters relating to the property
of the spouses or either of them…
XXX XXX XXX
The Family Court was set up for settlement of family
disputes. The reason for enactment of the said Act was to
set up a court which would deal with disputes concerningCS(OS) 70/2017 Page 8 of 15
the family by adopting an approach radically different
from that adopted in ordinary civil proceedings…”
xxxx xxxx xxxx xxxx
35. Learned counsel for the plaintiff had submitted that
there is nothing to indicate that Family Courts in Delhi
have been released from the pecuniary jurisdiction limit.
However, this Court is of the opinion that no such formal
notification extending the Family Courts‟ pecuniary
jurisdiction is required. Once it has been held that
„District Court‟ includes the High Court exercising its
original civil jurisdiction, and in the absence of a bar
limiting the pecuniary jurisdiction of Family Courts to
any pecuniary limit, they would assume jurisdiction
exclusively regardless of pecuniary values.
xxxx xxxx xxxx xxxx
42. Therefore, the reference is answered as follows:
Point No.1: It is held that the Delhi High Court is a
“district court” under Section 8 in respect of all matters
enumerated in Explanation to Section 7 (1) of the Act;
Point No.2: The Delhi High Court does not possess
jurisdiction to entertain, try and decide cases and causes
referred to in Sections 7 and 8 of the Family Courts
Act.”
(emphasis supplied)
6. In pursuance to the said judgment, the Registry of this
Court has issued a Practice Direction dated 23 rd December,
2016. The said Practice Direction is reproduced
hereinbelow:-
“HIGH COURT OF DELHI AT NEW DELHI
No. 45/Rules/DHC Dated : 23.12.2016
CS(OS) 70/2017 Page 9 of 15
PRACTICE DIRECTIONSHon‟ble the Chief Justice, on the recommendations of
the Hon‟ble Judges of the Original Side, has been pleased to
issue following practice directions for information and
compliance by all concerned :-
1. In view of the Judgment dated 19.07.2016 passed by
the Hon‟ble Division Bench of this Court on reference in CS
(OS) No. 411/2010 I.A. No. 12186/2010 titled “Amina
Bharatram Vs. Sumant Bharatram and Others”, all matters
enumerated in Explanation to Sub-Section (i) of Section 7
and Section 8 of the Family Courts Act, 1984 shall be
exclusively triable by the Family Courts and the jurisdiction
of the High Court to the extent it exercises Ordinary
Original Civil Jurisdiction in respect of such matters stands
excluded by virtue of Section 8 (c)(ii) of the said Act. Such
matters listed before this Court shall be transferred to the
Family Courts by passing the necessary Orders in this
respect on their dates of listing.
2. The Registry, henceforth, is directed not to accept
such matters as enumerated in Explanation to Sub Section (i)
of Section 7 and Section 8 of the Family Courts Act, 1984.
These Practice Directions shall come into force with
immediate effect.
By Order
Sd/-
(GIRISH KATHPALIA)
REGISTRAR GENERAL”
(emphasis supplied)
7. Keeping in view the aforesaid mandate of law as well
as the Division Bench‟s judgment in Amina Bharatram
(supra) and the Practice Direction No. 45/Rules/DHC dated
23rd December, 2016 issued by the Registrar General of thisCS(OS) 70/2017 Page 10 of 15
Court, present suit along with pending applications is
transferred to the Family Court. For the aforesaid purpose,
parties are directed to appear before the Principal Judge
(HQs), Family Courts, Dwarka on 16th October, 2017, who in
turn is directed to transfer the case to the appropriate Family
Court.”
18. Consequently, though the adjudication of pure civil rights in an
injunction/anti-suit injunction will be within the domain of civil Courts,
yet petitions in circumstances arising out of marital relationship or
guardianship/custody for relief of injunction/anti-suit injunction shall lie
before a Family Court in accordance with Section 9 CPC read with
Sections 7 and 8 of the Family Courts Act, 1984. Likewise, any anti-suit
injunction in respect of any other rights governed by special Statute and
whose cognizance is specifically barred, shall not lie before this Court
due to bar of jurisdiction contained in Section 9 CPC.
19. In the present suit the following prayers have been sought:-
“a) Pass a decree of Declaration in favour of the Plaintiff
and against the Defendant declaring that custody appeal
initiated by the Defendant against the Plaintiff before the
Superior Court at Stamford, Connecticut in USA titled as
Navtej Singh v. Jasmeet Kaur and all the judgments, order,
decree, directions, etc. be declared as null, void and
unenforceable.
b) Pass a decree of Declaration in favour of the Plaintiff
and against the Defendant declaring that all the judgments,
order, decree, directions, etc. passed subsequent thereto by
the Superior Court at Stamford, Connecticut or any other
foreign court in the case titled as Navtej Singh vs. Jasmeet
Singh be declared as null and void.
CS(OS) 70/2017 Page 11 of 15
c) Pass an order for injunction in favour of the Plaintiff
and against the Defendant restraining the Defendant from
continuing any legal proceedings against the Plaintiff in the
courts in United States of America in respect of custody of the
two children.
d) Pass an order granting damages to the tune of Rs.200/-
tentatively till the damages are decided by this Hon’ble Court
without prejudice to the rights and contentions of the Plaintiff;
towards immense mental, psychological and emotional trauma
caused by the Defendant to the Plaintiff.
e) Pass an order of cost of litigation in favour of the
Plaintiff.”
20. Consequently, as the anti-suit injunction in the present case is, “in
circumstances arising out of a marital relationship” and/or
guardianship/custody of any minor child, the jurisdiction of the civil
Court is inherently and expressly barred by virtue of the provisions of
Section 9 CPC read with Sections 7 and 8 of the Family Courts Act,
1984.
21. Further, in Minakshi Sahlot (Supra) a Coordinate Bench of this
Court vide order dated 27th October, 2016 has categorically held that an
anti-suit injunction is squarely covered by Explanation (d) to Section 7 of
the Family Courts Act, 1984. The relevant portion of the aforesaid order
is reproduced hereinbelow:-
“9. A bare perusal of the above-quoted provision would show
that the decision would require the expression “injunction in
circumstances arising out of a marital relationship” to be
construed.
10. The learned Single Judge while taking a different opinion
in the facts and circumstances of the case in Suraj SethCS(OS) 70/2017 Page 12 of 15
(supra,) though noting abovequoted provision of Section 7 of
the Family Courts Act, proceeded to examine the question
observing that what is referred to in explanation (d) is “an
injunction with regard to a marital relationship”. In the
considered view of this court, this not being the language of
the statute, the view taken in Suraj Seth (supra) cannot be
followed. What is explained in clause (d) is that the suit of
which the jurisdiction would now fall before the Family Court
must be one, may be for injunction, in circumstances arising
out of a marital relationship.
11. In the given facts and circumstances, there can be no
dispute about the fact that the case for divorce filed by the
defendant and the case seeking antisuit injunction filed before
this court arises in circumstances emanating from a marital
relationship. It is noted that the question was not pressed in
this light before the division bench in FAO (OS) 511/2014
which was taken out against the order of the learned Single
Judge in Suraj Seth (supra). All that was pressed or
considered by the division bench was the sustainability of the
action or its maintainability in light of the prayers made in
that case and not the issue as to whether the case would fall
within the jurisdiction of the civil court or of the Family
Court. The decision of the High Court of Gujarat in
Darshanaben (supra) is also distinguishable for the simple
reason that, in contrast to the case at hand, it involved
various reliefs including the prime ones for partition of the
properties of joint Hindu family of the original defendants and
for rendition of accounts.
12. In the view of this court, the case is squarely covered by
clause (d) of explanation appended below Section 7 of the
Family Courts Act, 1984…”
22. The Coordinate Bench of this Court in Minakshi Sahlot (Supra)
did not follow Suraj Seth (Supra) since the latter did not rely upon the
language of the statute “injunction in circumstances arising out of a
CS(OS) 70/2017 Page 13 of 15
marital relationship” and instead relied upon the expression “an
injunction with regard to a marital relationship”.
23. To be fair, the Coordinate Bench that had decided Suraj Seth
(Supra) did not have the benefit of the authoritative Division Bench
judgment in Amina Bharatram (Supra) interpreting Sections 7 and 8 of
the Family Courts Act, 1984.
24. The appeal against the said decision being FAO(OS) 329/2016,
Minakshi Sahlot Vs. Gourav Choudhary was disposed of by this Court
as having been rendered infructuous, leaving the question of law open.
However, the order of the learned Single Judge dated 27 th October, 2016
was neither stayed, set aside, modified, varied or changed.
25. In the opinion of this Court, there is only one conclusive Division
Bench judgment on the point interpreting Explanation (d) to Section 7 of
the Family Courts Act, 1984, and there is no other conflicting judgment
on the point. Accordingly, the High Court cannot exercise original
jurisdiction in anti-suit injunctions, when the suit or proceedings under
Sections 7/8 of the Family Courts Act, 1984, for grant of an injunction
lies before the Family Court.
26. This Court is also of the view that the Family Court is a one stop
forum for all family litigations. This interpretation would ensure speedy
disposal and prevent conflict of judgments. In the opinion of this Court, it
would be incongruous if a suit for maintenance or custody of minor
children is transferred to the District Court, while an anti-suit injunction
filed by the same spouse seeking stay of maintenance and/or custody
proceedings filed by the other spouse in a foreign jurisdiction is heard
and decided by this Court.
CS(OS) 70/2017 Page 14 of 15
27. In view of the foregoing discussion, this Court is of the view that
in the present case the Family Court and not the High Court is the
appropriate forum to adjudicate the relief of anti-suit injunction in
accordance with Sections 7 and 8 of the Family Courts Act, 1984.
28. Keeping in view the aforesaid, the present suit along with pending
applications is transferred to the Family Court. For the aforesaid
purpose, parties are directed to appear before the Principal Judge (HQs),
Family Courts, Dwarka, on 4th January, 2018 who, in turn is directed to
transfer the case to the appropriate Family Court.
MANMOHAN, J
DECEMBER 20, 2017
js
CS(OS) 70/2017 Page 15 of 15
