ORDER

Heard.

1. This petition has been filed under Article 227 of the Constitution of India by the petitioner/plaintiff/wife against the order dated 4.8.2022 passed in HMA Case No.1335 of 2022 by First Additional Principal Judge, Family Court, Indore whereby the application filed by the petitioner under Order 39 rule 1 & 3 read with section 151 of C.P.C. and section 7 of the Family Courts Act, 1984 has been dismissed.

2. Shorn of details, the brief facts of the case are that the petitioner-wife and the respondent-husband got married as per Hindu rites at Lonavala, Maharashtra on 18.1.2014. Out of this wedlock their daughter Miraya was born in Chicago U.S.A., and as such is a U.S. citizen and also holds permanent residency card of Canada and O.C.I. card of India as in the year 2018, the petitioner and her daughter Miraya and respondent became permanent residents of Canada. As as it transpired, a matrimonial discord took place between the parties from 25.10.2021 to January, 2022 and subsequently on 27.1.2022, the petitioner and her daughter Miraya left Canada for India, and since then they are living with petitioner’s parents in Indore. The parents of the petitioner and the respondent also tried patch up their differences in their presence at Indore, however, the parents of the respondent suggested that they should take divorce and as the things did not turn out as expected, on 6.4.2022, the respondent returned back to Toronto, Canada. On 18.4.2022, the petitioner enrolled her daughter Miraya in Delhi Public School, Indore on which date she also sent an email to the respondent husband asking for separation. On 27.4.2022 a response was made by the respondent and on 20.5.2022, the respondent commenced proceedings for divorce in Canada and also sought interim/permanent custody of Miraya, the notice of which was also served on the petitioner.

3. On 20.6.2022, the petitioner filed a divorce petition under section 13(ia) and section (iii) of the Hindu Marriage Act, 1955 and also filed custody application and maintenance application in the Family Court, Indore. On 21.6.2022 the petitioner was also served with a notice from Canadian Court informing that the hearing was fixed on 23.6.2022 at 10:00 AM relating to Miraya’s habitual residency in Canada. Soon thereafter, the respondent also filed a Writ Petition in the nature of habeas corpus i.e. W.P. No.14089 of 2022 before this Court alleging illegal detention of Miraya by her mother at Indore. On 28.6.2022 the petitioner also preferred an Anti-Suit Injunction application to restrain the respondent from continuing to prosecute the Canadian proceedings and to commence any fresh proceedings in Canadian Court against the petitioner or Miraya.

4. In the aforesaid proceedings in the Canadian Court, the mediation exercise was also carried out, but the same failed and on 13.7.2022, the Court of Ontario, the Canadian Court allowed the urgent motion and directed that Miraya be returned back to Canada within 30 days, whereas the Anti-Suit Injunction application filed by the petitioner before the Family Court at Indore was decided on 4.8.2022, after the respondent filed its reply to the application. Hence, this petition against the aforesaid order.

5. Shri A. S. Garg, learned senior counsel appearing for the petitioner assisted by Shri Upendra Kumar Choukse, Advocate has submitted that the learned Judge of the family Court has erred in dismissing the application despite holding that such an application is maintainable but holding that no further proceedings is pending at Court in Canada hence no injunction can be granted. Shri Garg has submitted that such finding is erroneous for the reason that in the Canadian Court also the order is of interim nature only directing Miraya to return back to Canada within 30 days. It is further submitted that the respondent husband has no respect for the Indian Court which is also reflected in his pleadings in the Canadian Court where disparaging remarks have been mad