IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3878 2018
(Arising out of Special Leave Petition (Civil) No. 10078 of 2018 )
@ CC No.22197/2016
Dinesh Singh Thakur ………Appellant(s)
Sonal Thakur ….…Respondent(s)
1) Leave granted.
2) The benefaction seductiveness has been filed opposite a impugned
judgment and sequence antiquated 03.11.2016 upheld by a High Court of Punjab & Haryana during Chandigarh in CR No. 7190 of 2016 whereby schooled singular Judge of a High Court discharged a rider filed by a appellant-husband opposite a sequence antiquated 18.10.2016 upheld by a District Judge, Family Court, Gurgaon in Civil Suit No. 15 of 2016 whereby ad-interim explain postulated opposite a respondent-wife, vide sequence antiquated 26.09.2016
Signature Not Verified Digitally sealed by ASHA SUNDRIYAL Date: 2018.04.17 17:22:39 IST
Reason: has been vacated.
3) Having courtesy to a inlet and resources of a case, we do not intend to plead all a contribution in fact during this stage. Hence, a contribution are settled in a epitomised approach usually to conclude a emanate concerned in this benefaction appeal.
(a) The matrimony between Dinesh Singh Thakur-the appellant-husband and Sonal Thakur – respondent-wife was solemnized on 20.02.1995 as per Hindu rites and dual children were innate out of a pronounced wedlock. The appellant-husband was operative in United States of America (USA) during a time of matrimony and he took a respondent-wife to USA on Dependent Visa. Both a parties got a citizenship of USA in May, 2003. They performed “PIO” standing (Person of India Origin) in Jun 2003 and “OCI” standing (Overseas Citizens of India) in Jul 2006.
(b) The appellant-husband filed a petition being H.M.A. No. 601 of 2016 underneath Sections 13 and 26 of a Hindu Marriage Act, 1955 (in brief ‘the Act’) opposite a respondent-wife during a Family Court, Gurgaon that is tentative adjudication before a Court. Subsequently, a respondent-wife filed a petition being Case No. 2016-008918-FD in a Circuit Court of a Sixth Judicial Circuit in and for Pinellas County, Florida, USA for divorce on a belligerent of unrecoverable relapse of matrimony and other reliefs. Thereafter, a appellant-husband filed Civil Suit No. 15 of 2016 before a District Judge, Family Court, Gurgaon, underneath Section 7 of a Act for permanent explain and stipulation inter alia to curb a respondent-wife from posterior a petition for divorce before a Court in USA.
(c) Learned District Judge, vide sequence antiquated 26.09.2016, postulated ex parte ad halt explain to a appellant-husband. Being aggrieved, a respondent-wife filed an focus for vacation and alteration of a sequence antiquated 26.09.2016. Learned District Judge, vide sequence antiquated 18.10.2016, vacated a explain postulated vide sequence antiquated 26.09.2016.
(d) Aggrieved by a sequence leaving injunction, a appellant-husband elite CR No. 7190 of 2016 before a High Court. Learned singular Judge of a High Court, vide sequence antiquated 03.11.2016 discharged a petition filed by a appellant-husband.
(e) Aggrieved by a visualisation and sequence antiquated 03.11.2016, a appellant-husband has filed this seductiveness by approach of special leave before this Court.
4) Heard Ms. Indu Malhotra, schooled comparison warn for a appellant-husband and Mr. V. Giri, schooled comparison warn for a respondent-wife and perused a record.
Point(s) for consideration:-
5) The usually indicate for care before this Court is possibly in a benefaction contribution and resources of a case, a appellant-husband is entitled to a direct of anti-suit explain opposite a respondent-wife?
6) Learned comparison warn for a appellant-husband contended that as a appellant herein had already filed a petition seeking retraction of matrimony of a parties in that a respondent-wife was served on 04.08.2016 and she had caused coming on 16.09.2016, a record instituted by a respondent-wife seeking a direct of divorce in a Foreign Court on a belligerent of unrecoverable relapse of matrimony that is not a belligerent for divorce underneath a Act are probable to be stayed. Further, a respondent-wife, along with her teenager children is staying in India given 2003 and filing of petition for divorce in a Court during USA, after receipt of notice in a divorce petition filed by a appellant-husband in India, is an abuse of slight of law and amounts to multiplicity of proceedings.
7) Learned comparison warn serve contended that a respondent-wife is admittedly staying during Gurgaon, therefore, a probity during Gurgaon would be a forum accessible to both a parties. She serve contended that a conference Court has usually deliberate a supplies of Section 41(b) of a Specific Relief Act, 1963 (in brief ‘the SR Act’) and a preference in a box of Rakesh Kumar vs. Ms. Ashima Kumar – AIR 2007 P&H 63 though did not take into care a supplies of Section 41(a) of a SR Act, germane in a benefaction context. Learned comparison warn for a appellant-husband finally contended that a High Court was not right in support a sequence of a probity next on leaving a ad-interim explain and division in this courtesy is sought for by this Court.
8) Learned comparison warn for a respondent-wife while refuting a claims done by schooled comparison warn for a appellant-husband submitted that a petition that has been filed before a Court during Florida is not usually for retraction of matrimony of a parties though also for claiming several other reliefs such as estimable placement of marital assets, child support, alimony, assign and other reliefs that are not accessible underneath a Indian Law. Learned comparison warn serve submitted that a lost detriment or damage shall be caused to a respondent-wife and to a children in box a petition tentative in a Court during Florida is stayed.
9) Anti-Suit Injunctions are meant to curb a celebration to a suit/proceeding from instituting or prosecuting a box in another court, including a unfamiliar court. Simply put, an anti-suit explain is a legal sequence confining one celebration from prosecuting a box in another probity outward a jurisdiction. The beliefs ruling extend of explain are common to that of extenuation anti-suit injunction. The cases of explain are fundamentally governed by a doctrine of equity.
10) It is a well-settled law that a courts in India have energy to emanate anti-suit explain to a celebration over whom it has personal jurisdiction, in an suitable case. However, before flitting a order of anti-suit injunction, courts should be really discreet and careful, and it should be postulated sparingly and not as a matter of slight as such orders engage a probity impinging on a office of another court, that is not entertained really simply privately when a it restrains a parties from instituting or stability a box in a unfamiliar court.
11) In this backdrop, it is inestimable to quote Section 41 of a SR Act that provides for several instances and resources underneath that explain can't be granted.
“41. Injunction when refused.—An explain can't be granted—
(a) to curb any chairman from prosecuting a legal move tentative during a establishment of a fit in that a explain is sought, unless such patience is compulsory to forestall a multiplicity of proceedings;
(b) to curb any chairman from instituting or prosecuting any move in a probity not subordinate to that from that a explain is sought;
(c) to curb any chairman from requesting to any legislative body;
(d) to curb any chairman from instituting or prosecuting any move in a rapist matter;
(e) to forestall a crack of a agreement a opening of that would not be privately enforced;
(f) to prevent, on a belligerent of nuisance, an act of that it is not pretty transparent that it will be a nuisance;
(g) to forestall a stability crack in that a plaintiff has acquiesced;
(h) when equally influential service can positively be performed by any other common mode of move solely in box of crack of trust;
(i) when a control of a plaintiff or his agents has been such as to disentitle him to a assistance of a court;
(j) when a plaintiff has no personal seductiveness in a matter.”
12) The appellant – father argued that Section 41(b) is not germane to a benefaction box rather it is germane usually to those cases where doubt is per a explain for record in a Indian court. In support of this argument, schooled comparison warn placed faith on Oil and Natural Gas Commission vs. Western Company of North America (1987) 1 SCC 496, wherein this Court, while interpreting a sustenance of Section 41(b) of a Specific Relief Act, 1963 has reason as follows:-
“18….This provision, in a opinion, will be captivated usually in a fact-situation where an explain is sought to curb a celebration from instituting or prosecuting any movement in a probity in India that is possibly of coordinate office or is aloft to a probity from that a explain is sought in a hierarchy of Courts in India…..”
13) Learned comparison warn for a appellant-husband serve placed faith on Modi Entertainment Network and Another vs. WSG Cricket PTE Ltd. 2003 (4) SCC 341, wherein this Court while traffic with a matter laid down certain beliefs compulsory to be taken into care by any probity while extenuation an anti-suit injunction. These beliefs are as under:-
The defendant, opposite whom explain is sought, is fair to a personal office of a court.
If a explain is declined, a ends of probity will be degraded and misapplication will be perpetuated and;
The element of comity-respect for a probity in that a derivation or delay 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 a courts in India like Court in England are courts of law and equity. The beliefs ruling a extend of anti-suit explain being radically an estimable relief; a courts in India have a powers to emanate anti-suit explain to a celebration over whom it has personal office in an suitable case; this is since a courts of equity practice office in personam; this energy has to be exercised sparingly where such an explain is sought and if not granted, it would volume to a better of ends of probity and misapplication would be perpetuated.
15) In Vivek Rai Gupta vs. Niyati Gupta, Civil Appeal No. 1123 of 2006, motionless on Feb 10, 2016, this Court has reason as under:-
“If a execution record are filed by a respondent-wife for executing a aforesaid direct antiquated 18.09.2012 upheld by a Court of Common Pleas, Cuyahoga Country, Ohio, USA opposite any other movable/immovable skill in India it would be open to a appellant-husband to conflict a pronounced execution petition on any drift accessible to him in law holding a position that such a direct is not executable.”
16) Further, in Harmeeta Singh vs. Rajat Taneja 2003 (67) DRJ 58, a Delhi High Court deliberation a fact that a parties have lived together for a really brief time in a United States of America had postulated anti fit injunction.
17) Y. Narasimha Rao & Others vs. Y. Venkata Lakshmi and Another (1991) 3 SCC 451, this Court has reason as under:-
“20. From a aforesaid row a following sequence can be deduced for recognising a unfamiliar matrimonial visualisation in this country. The office insincere by a unfamiliar probity as good as a drift on that a service is postulated contingency be in suitability with a matrimonial law underneath that a parties are married. The exceptions to this sequence might be as follows: (i) where a matrimonial movement is filed in a forum where a respondent is domiciled or often and henceforth resides and a service is postulated on a belligerent accessible in a matrimonial law underneath that a parties are married; (ii) where a respondent willingly and effectively submits to a office of a forum as discussed above and contests a explain that is formed on a belligerent accessible underneath a matrimonial law underneath that a parties are married; (iii) where a respondent consents to a extend of a service nonetheless a office of a forum is not in suitability with a supplies of a matrimonial law of a parties.”
18) Further, during a march of hearing, several papers such as vessel card, Aadhar label of a respondent-wife, franchise deed that was executed by her in 2015 etc., that are also placed on record, are sufficient to uncover that respondent-wife is usually vital in India. Further, as it appears from a record accessible before a US probity that a respondent herself has certified that a Family Court Gurgaon has office in a given case. The justification placed on record is sufficient adequate to uncover that a respondent is fair to a personal office of Gurugram Family Court. Though a respondent-wife is fair to a office of Family Court, Gurgaon, there is zero on record to reason that a other celebration will humour grave misapplication if a explain is not granted.
There is no brawl to a fact that both a parties are permanent adults of U.S. Undisputedly, a Circuit Court, Florida, USA is also carrying a point office in a given case. The row that a appellant-husband will humour grave misapplication if a record are authorised to be continued in a Circuit Court, Florida USA doesn’t mount to a belligerent as a appellant himself has been staying there after 2007 and a record for extend of anti-suit explain were instituted by him in India by another chairman by lenient him by a energy of profession to record and pursue a doubtful litigation on his behalf. Further, there is zero brought on record to uncover how a appellant-husband would humour grave misapplication if a explain confining a respondent-wife from posterior a divorce petition in Florida, is not granted. Still further, even if a explain is declined, it can't be pronounced that a ends of probity will be degraded and misapplication will be perpetuated.
19) The row that a respondent-wife has filed a petition for divorce in a probity during USA on a belligerent of unrecoverable relapse of matrimony that is not a belligerent supposing for divorce underneath a Act requires consideration. The small fact that a respondent-wife has filed a box on a belligerent that is not accessible to her underneath a Act, doesn’t means that there are odds of her being next in removing a direct for divorce. Specifically, in perspective of a fact that a appellant has lifted this row before a Circuit Court, Florida and both a parties will furnish justification with courtesy to a doubt possibly their matrimony is governed by a Act or any other law.
20) Foreign probity can't be reputed to be sportive a office poorly even after a appellant being means to infer that a parties in a benefaction box are continued to be governed by a law ruling Hindus in India in a matter of brawl between them.
21) In perspective of above row and after carrying courtesy to a inlet of box and other rare facts, we do not hold it suitable to meddle with a preference rendered by a High Court. We are of a opinion that a record in a Foreign Court can't be pronounced to be rough or vexatious. The seductiveness is accordingly discharged with no sequence as to costs.
(R. BANUMATHI) NEW DELHI APRIL 17, 2018