1.wp.3773.2021- final.odt

DDR

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 3773 OF 2021

Milind Ashok Kalamkar

… Petitioner

Vs

Sheetal Milind Kalamkar Nee

Sheetal Premnath Kerkar

... Respondent

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Mr. Atul Damle Sr. Advocate i/b Prasad Gajbhiye for the Petitioner

Mr. Himanshu Nagarkar a/w Anagha Nimbkar for the Respondent.

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CORAM : M.S.KARNIK, J.

DATE : 23

^rd AUGUST, 2021

ORAL JUDGMENT :-

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 afected 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 昀椀nd an early resolution to the dispute.

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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 diferent

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

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on 2/9/2019. A marital asset division suit was 昀椀led 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 昀椀led 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 昀椀led

restraining the wife from 昀椀ling 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 justi昀椀ed 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.

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8.

Learned Senior Advocate Shri Damle, on behalf of the

husband urged that the Family Court committed an