Jurisdictional limits on property claims in divorce proceedings are paramount, and anti-suit injunctions must comply with local statutory provisions.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &

THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 11^TH DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 OP (FC) NO. 274 OF 2023 AGAINST THE ORDER/JUDGMENT IN OP(OTHERS) 373/2022 OF FAMILY COURT,KOLLAM PETITIONER/PETITIONER/PETITIONER:

ARCHANA PIUS AGED 49 YEARS, D/O PIUS JOSEPH PUTHENPURACKAL, MANGAD P.O, KANDACHIRA, MANGAD, 680584 (NOW RESIDING AT 20 HOMEVIEW ROAD, BRAMPTON, ONTARIO ,CANADA) REPRESENTED BY HER POWER OF ATTORNEY HOLDER MR. JOSE TOMY PIUS, AGED 60 YEARS, SON OF PIUS JOSEPH, RESIDENT OF PUTHENPURACKAL, MANGAD PO, KOLLAM, PIN – 691015 BY ADVS.

JOHNSON GOMEZ S.BIJU (KIZHAKKANELA)

SANJAY JOHNSON ARUN JOHNY DEEBU R.

ABIN JACOB MATHEW REVATHI.B RESPONDENT//RESPONDENT/RESPONDENT:

SHINE AGED 49 YEARS, S/O V. GOPALAN NAIR, NIRMALYAM , PUTHEN MADOM, THEVALLY CHERRY, KOLLAM WEST VILLAGE, THEVALLY P.O, KOLLAM, PIN – 691009 BY ADVS. R.ANIL R THOMAS SABU VADAKEKUT(KL/001082/2017)

MAHESH BHANU S.(K/1620/2018)

RESSIL LONAN(K/1251/2020)

K.S.KIRAN KRISHNAN(K/3514/2022)

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Amit Rawal, J.

1. The question of law raised in the present OP(FC) is whether anti-suit injunction by one of the spouse can be maintainable against another spouse who had instituted a suit in Canada on various claims.

2. To answer the aforementioned question, the facts in brief are as under:

Marriage between the parties was solemnized on 11.12.1999.

Two children are born out of the wedlock, elder one is aged 19 years and the younger 16 years. Both husband and wife migrated to Canada and doing their jobs meant for and through hard work acquired properties in Canada. Unfortunately, bitterness in the relationship resulted into a discord necessitating the wife to institute a divorce petition O.P.No.34/2021 which is pending adjudication and the husband had also appeared through counsel. Respondent is stated to have put in appearance, proceeded ex parte. An ex parte divorce decree is stated to have been passed though the order has not been issued. Husband invoked the jurisdiction of Ontario Court, Canada and raised the following multifarious claims:

11. Support for chil(ren)-table amount

12. Support for child(ren)-other than table amount

13. Decision-making responsibility for child(ren)

14. Parenting time with child(ren)

15. Restraining/non-harrassment order

16. Indexing spousal supported17.Declaration of percentage

18. Guardianship over child’s property

20. Equalization of net family properties.

3. It is a matter of record that in 2019 in respect of a joint property husband instituted suit for partition at Kollam an ex parte preliminary decree has been passed and application for setting aside ex parte decree is stated to be pending adjudication. Out of various reliefs in the petition in Canada one relief pertains to property. Apprehending that the property may not include the property in India, the jurisdiction of Family Court, Kollam, was invoked as per Section 7 (1)(d) of the Family Courts Act . Along with that an application under Order 39 Rule (1)(2) has been filed which has been dismissed. It is in that circumstances, the present petition has been filed.

4. Learned counsel appearing on behalf of the petitioner wife made reference to the explanation (d) to Section 7 (1) of the Act as well as 41 of the Specific Relief Act and the judgment of Division Bench of this Court inGeorge Koshy v.Sarah Koshy [2021 (3) KHC 268] . The aforementioned judgment has been passed keeping in view the judgment rendered by the Supreme Court inDinesh Singh Thakur v.Sonal Thakur [2018 KHC 6299] . The doctrine of lex situs has to be applied in the context of the applicability of law in terms of the contract or otherwise. There was no contract between husband and wife with regard to the properties in India. Once the husband had already invoked the jurisdiction in respect of joint property claiming partition,