Back
High Court of Judicature at Bombay
ROSHAN DALVI, J.
Sandip Shankarlal Kedia
Versus
Pooja Kedia
Writ Petition No. 2636 of 2013
Decided On : 29-04-2013
An anti-suit injunction application, falls only under inherent powers of Court under Section 151 of Code and is consequently covered by present law. - Injunction is a discretionary remedy. It is granted for protection of the rights of parties in personam as also against their properties. Such injunction cannot be granted specifically under the circumstances set out in Section 41 of the Specific Relief Act, 1963, the first of which is to prevent parties from suing in other forums except when it would result in multiplicity of proceedings as to be counter-productive to both the parties entailing needless costs, expenses and time. It is also established that 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.
Civil Procedure Code, 1908 - Section 151, Order XXXIX, Rule 1 - Grant of anti-suit injunction.
When parties are in different international forums, Courts have refrained themselves from exercising jurisdiction to restrain parties from proceeding in another forum. - When parties have been in different jurisdictions, more specially in different international forums, Courts have refrained themselves from exercising the jurisdiction to restrain parties from proceeding in another forum as such an injunction would be not only against the party in person, but against another Court which may otherwise be a competent Court to exercise jurisdiction upon the party himself/herself or the properties of the parties.
The Courts have also restrained themselves from exercising such jurisdiction in what are essentially known as "reciprocal territories", in which the laws governing parties are consistent with the laws in India, more specifically common law jurisdictions, since the Indian jurisdiction is essentially based upon common law.
The constitutional framework of India enshrining an egalitarian society maintaining the rights and dignity of all human beings equally would be consistent with those jurisdictions. Further the principles of private international laws settling the law with regard to the proper law governing these parties are always adhered to and respected.
It may at once be mentioned that those jurisdictions are also the ones internationally following the common law principles and the doctrines of equality of all human beings.
Conversely, therefore, those countries and territories which do not follow the principles of equality, egalitarianism and dignity of all human beings are not taken to be "reciprocal territories". The principles of precedential law for grant of anti-suit injunction against the party from proceeding in another jurisdiction are set out in terms of these fundamental; salubrious jurisprudential principles.
Civil Procedure Code, 1908 - Section 151, Order XXXIX, Rule 1 - Specific Relief Act, 1963, Section 41(a) - Grant of anti-suit injunction.
If substantive law is substantially same in both countries then no question of granting an anti-suit injunction to a party who herself chosen to reside in such foreign jurisdiction even upon constraint that she claimed. - In the present case if the substantive law is substantially the same in both the countries there would be no question of granting an anti-suit injunction to a party who has herself chosen to reside and carry on business in such foreign jurisdiction even upon the constraint that she claimed. It may also be mentioned that had it been only a litigation with regard to her own personal rights being a litigation only for divorce, the question would never arise to grant an injunction to her.
She has chosen the country. She must accept her choice. She, therefore, comes within the jurisdiction of that country. She must respect the jurisdiction of those Courts. The petition has been filed where she resides. The costs of obtaining affirmations and translations is petty given her status and position as also the choice of her residence. The wife is seen to have no cause to complain. She has brought upon herself the jurisdiction of the Dubai Courts. The Court must respect that jurisdiction on the principle of comity seeing nothing amiss.
The principles of comity/respect for all Courts are enjoined to be borne in mind. The aforesaid law of personal status of 2005 in Dubai deserves the respect/comity as a sound law of any equitable justice system.
The jurisdiction to which the wife would submit is, therefore, neither inconvenient nor oppressive, but deserving the comity and respect as equitable and convenient in view of her own residence there. The Court would be clothe to exercise the jurisdiction which would interfere not only with the husband’s petition but the jurisdiction of that Court.
The husband’s application is not seen to be only to spite the wife as is contended. The husband is entitled to sue for divorce upon what transpired between the parties leading the wife to leave the country of her nationality as well as domicile.
Even if he was not constrained to apply in Dubai, having applied in the Courts in Mumbai, it would have been a Herculean task for him to obtain her presence for conduc- ting the proceedings. He must, therefore, submit himself to the place where the wife resides and carries on her business which he has done and which act cannot be faulted. The application of the wife for anti suit injunction deserves to be dismissed.
Rule. Made returnable forthwith.
1. The petitioner husband has challenged the order dated 28th February, 2013 of the Principal Judge, Family Court, Mumbai allowing an application of the respondent wife for injunction restraining her husband from pursuing case No. 65 of 2012 filed by him in Dubai Court for divorce and custody of child and other incidental reliefs and from filing any further proceedings in that Court. It is, therefore, an application popularly called an application for anti-suit injunction.
2. The parties have been married since long. They have a child, 7 years old.
3. The wife has claimed cruelty and harassment at the hands of her husband due to which she claims to have been constrained to have taken the child to Dubai for bringing him up in a congenial atmosphere. This has been since July, 2010. The husband has claimed that this was a malafide action to deprive him of the custody and access to his son and constrained him to file a Habeaus corpus Petition, the orders in which came to be breached. After the parties litigated in this Court and the Supreme Court, since the child was by then in Dubai, the husband claims that he was constrained to go to Dubai to take access to his child. Access has been provided on certain dates as per certain past orders. The child has continued to live in Dubai.
4. The husband has also obtained a residence visa in Dubai. He is shown to be a perfume salesman there. The husband, however, has a number of family businesses in Mumbai. The wife has shown that he essentially lives in Mumbai and visits Dubai at times.
5. Both the parties are Indian Nationals.
6. Both the parties have filed various proceedings in Dubai as well as in Mumbai and thereafter appeals therefrom. The main litigation between the parties are in respect of judicial separation claimed by the wife in Mumbai and divorce claimed by the husband in Dubai. They both have consistently agitated in respect of their child also. The wife has custody and the husband has claimed access in India. The husband has thereafter claimed what is called the travel-ban order against the child. The husband claims that that was because the wife initially took the child away from Mumbai to Dubai and constrained the husband to sue up to the Supreme Court to obtain access to the child. When that was through, she sought to remove the child from Dubai. The travel-ban order has allowed the child to be in Dubai and the husband to claim access to the child in Dubai. The wife has moved various applications for lifting the travel-ban order, several of which have been refused. After at least 5 such attempts, an order was granted for allowing the child to come to India, but was sought to be taken instead to Thailand which act came to be averted just in time. The husband, therefore, claims to be justified in procuring the travel-ban order, which the wife claims to be impinching her freedom of travel and consequently her life and liberty.
7. The jurisdiction of the Mumbai Court in respect of the wife's petition for judicial separation has been confirmed; that petition would go on in Mumbai. The wife has challenged the jurisdiction of the Court in Dubai in respect of the husband's petition for divorce and has filed the anti-suit injunction application which has come to be granted under the impugned order.
8. The parameters of the grant of such injunction would have to be considered upon the law relating to injunctions under the CPC being Order 39 Rule 1 and Section 151 of the CPC as also Section 41(a) of the Specific Relief Act, 1963.
9. It is settled law that injunction is a discretionary remedy. It is granted for protection of the rights of parties in personam as also against their properties. Such injunction cannot be granted specifically under the circumstances set out in Section 41 of the Specific Relief Act, 1963, the first of which is to prevent parties from suing in other forums except when it would result in multiplicity of proceed
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
