MANMOHAN SINGH, J.

1. The present application under consideration has been filed by defendant No. 1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (?CPC for short) read with Sections 9 and 151 of the CPC, Section 4 of the Hindu Marriage Act, 1955 and Section 5 of the Hindu Minority and Guardianship Act, 1956 for rejection of the plaint.

2. The present suit has been filed by the plaintiff No. 1 praying for the following reliefs :

a) Grant an anti suit injunction restraining the defendant No. 1 from filing, instituting and continuing, inter alia, any custody proceedings against the Plaintiff in Dubai and from prosecuting any such proceedings already filed;

b) Declare that the marriage contracted under Islamic Law by the Defendant No. 1 is void by virtue of its bigamous nature;

c) Declare that the children would not be subject to the Islamic Law being from Hindu Marriage solemnized and registered under Hindu Marriage Act, 1955;

d) Declare that the mother is the guardian of the children under the Hindu Minority and Guardianship Act, 1956.

3. The brief facts leading up to the filing of the present suit are that the plaintiff No. 1 and defendant No. 1 were married at Lucknow on 11th March, 1996 and the marriage was registered at New Delhi on 3rd November, 1998. The parties moved to Riyad, Saudi Arabia in 1998 and then to Dubai in 2000. Two children were born of the wedlock, being the minor plaintiff Nos. 2 and 3 herein.

4. By a letter dated 12th December, 2007 from the Indian Embassy at Cairo (defendant No. 3 herein) addressed to plaintiff No. 1 at 11, RBI Road, New Hyderabad, Lucknow, Uttar Pradesh the plaintiff No. 1‘s parents got to know that the husband of their daughter plaintiff No. 1 i.e. defendant No. 1 had converted to Islam and married a lady by the name of Wassima Khan and the letter enquired if the marriage of plaintiff No. 1 with defendant No. 1 had been dissolved. By letter dated 15th January, 2008 plaintiff No. 1 informed defendant No. 3 that the earlier marriage was subsisting as it had not been dissolved and that defendant No. 1‘s subsequent marriage was bigamous and void. Defendant No. 1 moved out of the matrimonial home on 1st February, 2008. However, on 20th February, 2008 both the parties negotiated an amicable resolution/ settlement of the dispute and reduced the same into writing. The said agreement contained clauses as to the division of the matrimonial assets as well as visitation rights etc. by virtue of which defendant No. 1 was allowed to visit the minor children on weekends. The said agreement also contained a clause to the effect that if either party violated any term thereof, the other party would have sole custody of the children.

5. It is the plaintiff No. 1‘s averment that defendant No. 1 started displaying anger towards her and started taunting her etc. even in the presence of the minor children who witnessed this scene every weekend. Plaintiff No. 1, for the sake of her children, continued to be patient with defendant No. 1 despite his unruly and abusive behaviour.

6. On 11th June, 2008, plaintiff No. 1 received an e-mail from defendant No. 1 informing her that he had obtained an order from a Court in Dubai restraining her from moving the minor children out of Dubai. Apprehending that defendant No. 1 may file proceedings for custody of the children in Dubai – and considering the fact that under the Shariat law children must necessarily reside with the father if he so

desires – the plaintiff No. 1 filed the present proceedings as the filing of any proceeding before the Dubai Court would be improper since the same was forum non-conveniens and also since the parties would not be governed by their personal law in Dubai but by the Shariat law. Further, defendant No. 1 through the order of the Dubai Court has curtailed the civil and personal liberties of the two minor children by restraining their travel outside Dubai. Thus the present suit was filed before this Cou