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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S.Karnik, J.
Milind Ashok Kajamkar - Appellant
Versus
Sheetal Milind Kalamkar Nee Sheetal Premnath Kerkar - Respondent
Writ Petition No. 3773 of 2021
Decided On : 23-08-2021
anti suit injunction - matrimonial dispute - Hindu Marriage Act, 1955 - Section 13(1), (i-a) - Sondur Gopal vs. Sondur Rajini (2013) 7 SCC 426, Y. Narasimha Rao vs. Y. Venkata Lakshmi (1991) 3 SCC 451, Modi Entertainment Network and ors. vs. W.S.G. Cricket PTE. Ltd. (2003) 4 SCC 341, Dinesh Singh Thakur vs. Sonal Thakur (2018) 17 SCC 12 - The court discussed the jurisdiction of the Family Court in Mumbai to grant an anti suit injunction, the intention of the parties to settle in Australia, and the principles governing the grant of anti-suit injunction. The court found that the husband's claim for an anti suit injunction was not justified based on the facts and circumstances of the case.
Fact of the Case:
The husband sought an anti suit injunction to restrain the wife from instituting proceedings for divorce and matrimonial disputes before the Foreign Court. The couple married in Mumbai, stayed abroad, and later moved to Australia. The wife initiated matrimonial proceedings in the Foreign Court, and the husband filed for divorce in the Family Court, Mumbai. The issue was whether the Family Court was justified in refusing the husband's application for an anti suit injunction.
Finding of the Court:
The court found that the husband's claim for an anti suit injunction was not justified based on the facts and circumstances of the case. The court considered the intention of the parties to settle in Australia, the jurisdiction of the Foreign Court, and the principles governing the grant of anti-suit injunction. It concluded that there was no reason to interfere with the order passed by the Family Court, Mumbai, and dismissed the Writ Petition.
Issues: The main issue was whether the Family Court was justified in refusing the husband's application for an anti suit injunction restraining the wife from instituting matrimonial proceedings in the Foreign Court.
Ratio Decidendi: The court held that the husband's claim for an anti suit injunction was not justified based on the intention of the parties to settle in Australia, the jurisdiction of the Foreign Court, and the principles governing the grant of anti-suit injunction. The court found that the balance of convenience was in favor of the wife, and there was no reason to interfere with the order passed by the Family Court, Mumbai.
Final Decision: The Writ Petition was dismissed, and no order as to costs was made.
JUDGMENT
M.S.KARNIK,J. - I start with a narration which may not be completely relevant in the context of deciding the present issue. I express this with a fond hope that the warring couple resolve their disputes amicably and at the earliest keeping in mind that apart from the hardships the parties are facing, it is their minor son 'Ridaan ' who is worst affected by this unfortunate estrangement. 'Ridaan ' is already a subject matter of a parenting agreement. Whether it be in the Foreign Court or the Indian Court, the parties must try to resolve the marital dispute amicably. I have no manner of doubt that the parties will put 'Ridaan 's interest above everything else and find an early resolution to the dispute.
FACTS OF THE CASE
2. The husband prays for an anti suit injunction restraining the respondent - wife from instituting proceedings for divorce and other matrimonial disputes before the Foreign Court.
3. These proceedings are an outcome of an unfortunate marital discord between the couple. The couple married in Mumbai on 30/11/2004 as per the Hindu Rites and Customs. For a major part, as the pleadings record, the couple stayed abroad in different countries for job related assignments. From the earnings, investments are made and properties are purchased in India. The couple was blessed with a son 'Ridaan ' in May, 2010.
4. The couple decided to shift to Australia in 2015. They are issued Permanent Residency visa ( 'PR ' for short). The wife has applied for Australian Citizenship.
5. The husband was upset with the lifestyle of his wife since 2017. Serious allegations are made in the Petition against her. The wife left the matrimonial home on 4/11/2018 with 'Ridaan '. All eforts of a possible reconciliation failed. The husband alleges the wife claimed 50% share in the property as a settlement. A marital asset division notice was sent by a lawyer in Australia on her behalf on 2/9/2019. A marital asset division suit was filed by her before the Federal Circuit Court on 8/11/2019. Thereafter, on 4/10/2019 and 23/1/2020, both parties had joint session with the Counsellors from Family Relationship Centre, being an Australian Government Recognised 'Family Dispute Resolution Practice ' and formulated a parenting plan for child access for betterment of 'Ridaan ' while he is in Australia.
6. The husband filed divorce proceedings under Section 13(1), (i-a) of Hindu Marriage Act, 1955 before the Family Court, Mumbai, on 20/12/2019. An application Exhibit 6 ' is filed restraining the wife from filing divorce proceedings on any grounds and/or from pursuing her marital asset settlement case in Australia.
7. The application made by him for an anti suit injunction, restraining the wife from instituting matrimonial proceedings in the Court at Australia (Referred to as 'a Foreign Court ') is rejected by the Family Court in Mumbai by the impugned order dated 6/4/2021. The issue for consideration in this Petition is whether the Family Court is justified in refusing the application of the husband to grant an anti suit injunction restraining the wife from instituting matrimonial suit or other related proceedings in a Foreign Court.
8. Learned Senior Advocate Shri Damle, on behalf of the husband urged that the Family Court committed an error in refusing the anti suit injunction on the following set of submissions :
"(A) As the parties are Indian citizens, being Domiciled in India, married in Mumbai as per Hindu Rites and Customs, only the Court in Mumbai will have jurisdiction to deal with all disputes relating to matrimonial proceedings. Reliance is placed on the decision of the Hon 'ble Supreme Court in the case of Sondur Gopal vs. Sondur Rajini ;(2013) 7 SCC 426 to contend that in the above facts it is only the Family Court in Mumbai which will have jurisdiction and therefore the anti suit injunction must follow.
(B) The parties have properties, bank accounts, LIC policies in India. There is no intent of abandoning the domicile of Indian origin. M
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