The doctrine of forum conveniens may be applied to determine the appropriate forum for divorce proceedings, even when the parties are citizens of a different country.

MAT.APP.(F.C.) 365/2023

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

+

MAT.APP.(F.C.) 365/2023, CM APPLs. 64021/2023

& 64022/2023

DAMINI MANCHANDA

..... Appellant

Through:

Ms. Preeti Singh, Adv.

versus

AVINASH BHAMBHANI

..... Respondent

Through:

Mr. Anil Goel, Mr. Aditya Goel and

Ms. Chanchal Sharma, Advs.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

V. KAMESWAR RAO, J. (ORAL)

MAT.APP.(F.C.) 365/2023

1.

This appeal has been filed by the appellant / wife challenging

the order dated December 1, 2023, passed by the Family Court-01,

Saket, Delhi (‘Family Court’, hereinafter) whereby the Family Court

has dismissed the application filed by the appellant under Order

XXXIX Rule 1 & 2 CPC along with application under Order XXXIX

Rule 2A CPC and allowed the application under Order XXXIX Rule 4

filed by the respondent herein.

Digitally Signed

By:DHARMENDER SINGH

Signing Date:19.12.2023

16:39:28

Signature Not Verified

MAT.APP.(F.C.) 365/2023

2.

As noted from the record, the parties married each other on

December 21, 2002. Two children were born out of their wedlock. Both

the parties left for Canada along with their children on April 23, 2018

and started residing there. It is noted that both the parties along with

children came to India in March, 2020. In July, 2020 the plaintiff / wife

left for Canada.

3.

It is the case of the appellant that she had sent a legal notice on

January 12, 2021 to the respondent which was duly replied by the

respondent on February 10, 2021. Because of the matrimonial discord

between the parties, the appellant filed a divorce petition against the

respondent before the Family Court, Saket, Delhi on December 16,

2020 through an authorized representative.

4.

Though the respondent was residing in India at that time, he left

for Canada along with both the children in September, 2021. It is a

matter of record that he has filed a divorce case before the Superior

Court of Justice, Ontario Toronto, Canada (‘Court in Canada’,

hereinafter). It is in this background, the appellant herein had filed the

anti-injunction suit along with the application under Order XXXIX

Rule 1 & 2 CPC restraining the respondent from proceeding with the

divorce petition filed by him before the Court in Canada.

5.

On July 8, 2022, when the matter was listed before a Single

Judge of this Court, the respondent, despite notice, failed to appear.

The matter was proceeded ex parte and an order was passed restraining

the respondent from proceeding with the divorce petition filed by him

before the Court in Canada. Subsequently, the respondent filed two

Digitally Signed

By:DHARMENDER SINGH

Signing Date:19.12.2023

16:39:28

Signature Not Verified

MAT.APP.(F.C.) 365/2023

applications under Order XXXIX Rule 4 CPC and Order IX Rule 7

CPC, pursuant to which, the ex-parte order dated July 08, 2022 was

recalled by the this Court vide order dated August 29, 2022. However,

the interim relief granted vide order dated July 08, 2022 was directed to

continue till further orders.

6.

The suit which was initially filed before this Court was

transferred to the Principal Judge, Family Courts, Saket, Delhi vide

order dated December 05, 2022.

7.

The case of the appellant before the Family Court was that she

had filed the divorce petition on December 16, 2020 when the

respondent was living in India. He deliberately avoided service and did

not appear before the Family Court at Delhi. Despite the restraint order,

the respondent was appearing before the Court in Canada, which

amount to violation of the interim injunction dated July 8, 2022.

According to her, as she had filed the divorce petition first, the

proceedings initiated by the respondent before the Court in Canada need

to be stayed. An allegation was raised that despite restraint order, the

respondent was proceeding with the petition before the Court in

Canada, which was