DINESH SINGH THAKUR versus SONAL THAKUR on 17 April 2018

[2018] 3 S.C.R. 469

DINESH SINGH THAKUR

v.

SONAL THAKUR

(Civil Appeal No. 3878 of 2018)

APRIL 17, 2018

[R. K. AGRAWAL AND R. BANUMATHI, JJ.]

Specific Relief Act, 1963:

s.41 – Injunction – Refusal of – When – Petition u/ss. 13 and26 of Hindu Marriage Act – By husband – Pending adjudication,petition seeking divorce filed by wife in the Court in USA – Suitfiled by husband seeking permanent injuction (anti-suit injunction)to restrain the wife from pursuing the petition before the Court inUSA – Ex-parte ad interim injunction granted – Therfeafter, onapplication by wife, injunction vacated – The order was furtherconfirmed by High Court – On appeal, held: Both the parties arepermanent citizens of USA – Courts in India as well as in USA haveconcurrent jurisdiction – Though wife is amenable to jurisdictionof Family Court in India, there is nothing on record to hold thatother party could suffer grave injustice if injunction is not granted– Proceedings in the Foreign Court cannot be said to be oppressiveor vexatious – Injunction – Equity – Hindu Marriage Act, 1955 –ss. 13 and 26 – Jurisdiction.

Injunction:

Anti-suit injunction – Held: Such injunction is meant to restraina party to a suit/proceedings from instituting or prosecuting a casein another court outside its jurisdiction, including a Foreign Court– Principles governing grant of injunction are common to that ofgranting anti-suit injunction – Cases of injunction are basicallygoverned by doctrine of equity – Courts in India have the power toissue anti-suit injunction – However, before issuing such injunction,Courts should be very cautious and careful – It should be grantedsparingly.

Dismissing the appeal, the Court

HELD: 1. Anti-Suit Injunctions are meant to restrain a partyto a suit/proceeding from instituting or prosecuting a case in

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Aanother court, including a foreign court. An anti-suit injunction isa judicial order restraining one party from prosecuting a case inanother court outside its jurisdiction. The principles governinggrant of injunction are common to that of granting anti-suitinjunction. The cases of injunction are basically governed by thedoctrine of equity. [Para 9] [474-E]B

2. The courts in India have power to issue anti-suitinjunction to a party over whom it has personal jurisdiction, in anappropriate case. However, before passing the order of anti-suitinjunction, courts should be very cautious and careful, and it shouldbe granted sparingly and not as a matter of routine as such ordersCinvolve a court impinging on the jurisdiction of another court,which is not entertained very easily specially when it restrainsthe parties from instituting or continuing a case in a foreign court.[Para 10]474-F-G]

3. Though the respondent-wife is amenable to theDjurisdiction of Family Court in India, there is nothing on recordto hold that the other party will suffer grave injustice if theinjunction is not granted. There is no dispute to the fact that boththe parties are permanent citizens of USA. Undisputedly, theCourt in USA is also having the concurrent jurisdiction in theEgiven case. The appellant-husband himself has been residing inUSA after 2007 and the proceedings for grant of anti-suit injunctionwere initiated by him in India through another person byempowering him through a power of attorney to file and pursuethe disputed litigation on his behalf. Further, there is nothingbrought on record to show how he would suffer grave injustice ifFthe injunction restraining the respondent-wife from pursuing thedivorce petition in USA, is not granted. Still further, even if theinjunction is declined, it cannot be said that the ends of justicewill be defeated and injustice will be perpetuated. [Para 18] [477-G-H; 478-A-B]G

4. The mere fact that the respondent-wife has filed the caseon the ground which is not available to her under the Act, doesn’tmean that there are likelihood of her succeeding in getting adecree for divorce, specifically, in view of the fact that the appellanthas raised this contention before the Court in USA and both theHparties will produce evidence with regard to the question whether A

their marriage is governed by the Act or any other law. Foreigncourt cannot be presumed to be exercising its jurisdiction wronglyeven after the appellant being able to prove that the parties inthe present case, continued to be governed by the law governingHindus in India in the matter of dispute between them. Theproceedings in the Foreign Court cannot be said to be oppressiveor vexatious. [Paras 19, 20 and 21] [[478-D-F]

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Rakesh Kumar vs. Ms. Ashima Kumar AIR 2007 P&H63; Oil and Natural Gas Commission v. WesternCompany of North America (1987) 1 SCC 496 : [1987]1 SCR 1024; Modi Entertainment Network and Anotherv. WSG Cricket PTE Ltd. (2003) 4 SCC 341 : [2003] 1SCR 480; Vivek Rai Gupta v. Niyati Gupta [2008] 1SCR 1069; Harmeeta Singh v. Rajat Taneja 2003 (67)DRJ 58; Y. Narasimha Rao & Others v. Y. VenkataLakshmi and Another (1991) 3 SCC 451 : [1991] 2SCR 821 – referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3878of 2018.

From the Judgment and Order dated 03.11.2016 of the High Courtof Punjab and Haryana at Chandigarh in C.R. No. 7190 of 2016.

Ms. Indu Malhotra, Sr. Adv., Vikram Mehta, Vikas Mehta, PrashantSingh, Ms. Rakhi Mohanty, Tanvir Nayar, Ms. Shweta Duggal, Advs.for the Appellant.

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V. Giri, Sr. Apoorv Kurup, Vivek Nasa, A. C. Boxipatro, Advs.for the Respondent.

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AThe Judgment of the Court was delivered by

R. K. AGRAWAL, J. 1. Leave granted.

2. The present appeal has been filed against the impugned judgmentand order dated 03.11.2016 passed by the High Court of Punjab &Haryana at Chandigarh in CR No. 7190 of 2016 whereby learned singleBJudge of the High Court dismissed the revision filed by the appellant-husband against the order dated 18.10.2016 passed by the District Judge,Family Court, Gurgaon in Civil Suit No. 15 of 2016 whereby ad-interiminjunction granted against the respondent-wife, vide order dated26.09.2016 has been vacated.CBrief facts:-

3. Having regard to the nature and circumstances of the case, wedo not intend to discuss all the facts in detail at this stage. Hence, thefacts are stated in a summarized way only to appreciate the issue involvedin this instant appeal.D

(a) The marriage between Dinesh Singh Thakur-the appellant-husband and Sonal Thakur - respondent-wife was solemnized on20.02.1995 as per Hindu rites and two children were born out of the saidwedlock. The appellant-husband was working in United States of America(USA) at the time of marriage and he took the respondent-wife to USAEon Dependent Visa. Both the parties got the citizenship of USA in May,2003. They obtained “PIO” status (Person of India Origin) in June 2003and “OCI” status (Overseas Citizens of India) in July 2006.

(b) The appellant-husband filed a petition being H.M.A. No. 601of 2016 under Sections 13 and 26 of the Hindu Marriage Act, 1955 (inFshort ‘the Act’) against the respondent-wife at the Family Court, Gurgaonwhich is pending adjudication before the Court. Subsequently, therespondent-wife filed a petition being Case No. 2016-008918-FD in theCircuit Court of the Sixth Judicial Circuit in and for Pinellas County,Florida, USA for divorce on the ground of irretrievable breakdown ofmarriage and other reliefs. Thereafter, the appellant-husband filed CivilGSuit No. 15 of 2016 before the District Judge, Family Court, Gurgaon,under Section 7 of the Act for permanent injunction and declarationinter alia to restrain the respondent-wife from pursuing the petition fordivorce before the Court in USA.

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(c) Learned District Judge, vide order dated 26.09.2016, grantedex parte ad interim injunction to the appellant-husband. Being aggrieved,the respondent-wife filed an application for vacation and modification ofthe order dated 26.09.2016. Learned District Judge, vide order dated18.10.2016, vacated the injunction granted vide order dated 26.09.2016.

(d) Aggrieved by the order vacating injunction, the appellant-husband preferred CR No. 7190 of 2016 before the High Court. Learnedsingle Judge of the High Court, vide order dated 03.11.2016 dismissedthe petition filed by the appellant-husband.

(e) Aggrieved by the judgment and order dated 03.11.2016, theappellant-husband has filed this appeal by way of special leave beforethis Court.

4. Heard Ms. Indu Malhotra, learned senior counsel for theappellant-husband and Mr. V. Giri, learned senior counsel for therespondent-wife and perused the record.

Point(s) for consideration:-

5. The only point for consideration before this Court is whether inthe present facts and circumstances of the case, the appellant-husbandis entitled to the decree of anti-suit injunction against the respondent-wife?

Rival submissions:-

6. Learned senior counsel for the appellant-husband contendedthat as the appellant herein had already filed a petition seeking dissolutionof marriage of the parties in which the respondent-wife was served on04.08.2016 and she had caused appearance on 16.09.2016, theproceedings initiated by the respondent-wife seeking a decree of divorcein a Foreign Court on the ground of irretrievable breakdown of marriagewhich is not a ground for divorce under the Act are liable to be stayed.Further, the respondent-wife, along with her minor children is residing inIndia since 2003 and filing of petition for divorce in the Court at USA,after receipt of notice in the divorce petition filed by the appellant-husbandin India, is an abuse of process of law and amounts to multiplicity ofproceedings.

7. Learned senior counsel further contended that the respondent-wife is admittedly residing at Gurgaon, therefore, the court at Gurgaon A

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Awould be the forum convenient to both the parties. She further contendedthat the trial Court has only considered the provisions of Section 41(b) ofthe Specific Relief Act, 1963 (in short ‘the SR Act’) and the decision inthe case of Rakesh Kumar vs. Ms. Ashima Kumar – AIR 2007 P&H63 but did not take into consideration the provisions of Section 41(a) ofthe SR Act, relevant in the present context. Learned senior counsel forBthe appellant-husband finally contended that the High Court was notright in upholding the order of the court below on vacating the ad-interiminjunction and interference in this regard is sought for by this Court.

8. Learned senior counsel for the respondent-wife while refutingthe claims made by learned senior counsel for the appellant-husbandCsubmitted that the petition that has been filed before the Court at Floridais not only for dissolution of marriage of the parties but also for claimingvarious other reliefs such as equitable distribution of marital assets, childsupport, alimony, partition and other reliefs that are not available underthe Indian Law. Learned senior counsel further submitted that theDirreparable loss or injury shall be caused to the respondent-wife and tothe children in case the petition pending in the Court at Florida is stayed.Discussion

9. Anti-Suit Injunctions are meant to restrain a party to a suit/proceeding from instituting or prosecuting a case in another court,Eincluding a foreign court. Simply put, an anti-suit injunction is a judicialorder restraining one party from prosecuting a case in another courtoutside its jurisdiction. The principles governing grant of injunction arecommon to that of granting anti-suit injunction. The cases of injunctionare basically governed by the doctrine of equity.

F10. It is a well-settled law that the courts in India have power toissue anti-suit injunction to a party over whom it has personal jurisdiction,in an appropriate case. However, before passing the order of anti-suitinjunction, courts should be very cautious and careful, and it should begranted sparingly and not as a matter of routine as such orders involve acourt impinging on the jurisdiction of another court, which is not entertainedGvery easily specially when the it restrains the parties from instituting orcontinuing a case in a foreign court.

11. In this backdrop, it is worthwhile to quote Section 41 of the SRAct which provides for various instances and circumstances under whichinjunction cannot be granted.H

“41. Injunction when refused.—An injunction cannot begranted—

(a) to restrain any person from prosecuting a judicial proceedingpending at the institution of the suit in which the injunction is sought,unless such restraint is necessary to prevent a multiplicity ofproceedings; (b) to restrain any person from instituting or prosecuting anyproceeding in a court not subordinate to that from which theinjunction is sought;

(c) to restrain any person from applying to any legislative body; (d) to restrain any person from instituting or prosecuting anyproceeding in a criminal matter; (e) to prevent the breach of a contract the performance of whichwould not be specifically enforced; (f) to prevent, on the ground of nuisance, an act of which it is notreasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff hasacquiesced; (h) when equally efficacious relief can certainly be obtained byany other usual mode of proceeding except in case of breach oftrust;

(i) when the conduct of the plaintiff or his agents has been suchas to disentitle him to the assistance of the court; (j) when the plaintiff has no personal interest in the matter.”

12. The appellant – husband argued that Section 41(b) is notapplicable to the instant case rather it is applicable only to those caseswhere question is regarding the injunction for proceedings in the Indiancourt. In support of this argument, learned senior counsel placed relianceon Oil and Natural Gas Commission vs. Western Company of NorthAmerica (1987) 1 SCC 496, wherein this Court, while interpreting theprovision of Section 41(b) of the Specific Relief Act, 1963 has held asfollows:- “18….This provision, in our opinion, will be attracted only in afact-situation where an injunction is sought to restrain a party A

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Afrom instituting or prosecuting any action in a court in India whichis either of coordinate jurisdiction or is higher to the court fromwhich the injunction is sought in the hierarchy of Courts inIndia…..”

13. Learned senior counsel for the appellant-husband further placedBreliance on Modi Entertainment Network and Another vs. WSG CricketPTE Ltd. 2003 (4) SCC 341, wherein this Court while dealing with thematter laid down certain principles required to be taken into considerationby any court while granting an anti-suit injunction. These principles areas under:- C• The defendant, against whom injunction is sought, is amenableto the personal jurisdiction of the court.

• If the injunction is declined, the ends of justice will be defeatedand injustice will be perpetuated and;

• The principle of comity-respect for the court in which theDcommencement or continuation of action/proceeding is soughtto be restrained-must be borne in mind.

14. In Modi Entertainment Networks (supra), this Court hasreiterated this position by holding that the courts in India like Court inEngland are courts of law and equity. The principles governing the grantEof anti-suit injunction being essentially an equitable relief; the courts inIndia have the powers to issue anti-suit injunction to a party over whomit has personal jurisdiction in an appropriate case; this is because thecourts of equity exercise jurisdiction in personam; this power has to beexercised sparingly where such an injunction is sought and if not granted,Fit would amount to the defeat of ends of justice and injustice would beperpetuated.

15. In Vivek Rai Gupta vs. Niyati Gupta, Civil Appeal No. 1123of 2006, decided on February 10, 2016, this Court has held as under:- “If the execution proceedings are filed by the respondent-wifeGfor executing the aforesaid decree dated 18.09.2012 passed bythe Court of Common Pleas, Cuyahoga Country, Ohio, USAagainst any other movable/immovable property in India it wouldbe open to the appellant-husband to resist the said executionpetition on any grounds available to him in law taking the positionthat such a decree is not executable.”H

16. Further, in Harmeeta Singh vs. Rajat Taneja 2003 (67) DRJ58, the Delhi High Court considering the fact that the parties have livedtogether for a very short time in the United States of America had grantedanti suit injunction.

17. Y. Narasimha Rao & Others vs. Y. Venkata Lakshmi andAnother (1991) 3 SCC 451, this Court has held as under:- “20. From the aforesaid discussion the following rule can bededuced for recognising a foreign matrimonial judgment in thiscountry. The jurisdiction assumed by the foreign court as well asthe grounds on which the relief is granted must be in accordancewith the matrimonial law under which the parties are married.The exceptions to this rule may be as follows: (i) where thematrimonial action is filed in the forum where the respondent isdomiciled or habitually and permanently resides and the relief isgranted on a ground available in the matrimonial law under whichthe parties are married; (ii) where the respondent voluntarily andeffectively submits to the jurisdiction of the forum as discussedabove and contests the claim which is based on a ground availableunder the matrimonial law under which the parties are married;(iii) where the respondent consents to the grant of the reliefalthough the jurisdiction of the forum is not in accordance withthe provisions of the matrimonial law of the parties.”

18. Further, during the course of hearing, various documents suchas pan card, Aadhar card of the respondent-wife, lease deed which wasexecuted by her in 2015 etc., which are also placed on record, aresufficient to show that respondent-wife is ordinarily living in India. Further,as it appears from the proceedings recorded before the US court thatthe respondent herself has admitted that the Family Court Gurgaon hasjurisdiction in the given case. The evidence placed on record is sufficientenough to show that the respondent is amenable to the personal jurisdictionof Gurugram Family Court. Though the respondent-wife is amenable tothe jurisdiction of Family Court, Gurgaon, there is nothing on record tohold that the other party will suffer grave injustice if the injunction is notgranted. There is no dispute to the fact that both the parties are permanentcitizens of U.S. Undisputedly, the Circuit Court, Florida, USA is alsohaving the concurrent jurisdiction in the given case. The contention thatthe appellant-husband will suffer grave injustice if the proceedings are A

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Aallowed to be continued in the Circuit Court, Florida USA doesn’t standto the ground as the appellant himself has been residing there after 2007and the proceedings for grant of anti-suit injunction were initiated by himin India through another person by empowering him through a power ofattorney to file and pursue the disputed litigation on his behalf. Further,there is nothing brought on record to show how the appellant-husbandBwould suffer grave injustice if the injunction restraining the respondent-wife from pursuing the divorce petition in Florida, is not granted. Stillfurther, even if the injunction is declined, it cannot be said that the endsof justice will be defeated and injustice will be perpetuated.

19. The contention that the respondent-wife has filed the petitionCfor divorce in the court at USA on the ground of irretrievable breakdownof marriage which is not the ground provided for divorce under the Actrequires consideration. The mere fact that the respondent-wife has filedthe case on the ground which is not available to her under the Act,doesn’t means that there are likelihood of her being succeeding in gettingDa decree for divorce. Specifically, in view of the fact that the appellanthas raised this contention before the Circuit Court, Florida and both theparties will produce evidence with regard to the question whether theirmarriage is governed by the Act or any other law.

20. Foreign court cannot be presumed to be exercising itsEjurisdiction wrongly even after the appellant being able to prove that theparties in the present case are continued to be governed by the lawgoverning Hindus in India in the matter of dispute between them.

21. In view of above discussion and after having regard to thenature of case and other peculiar facts, we do not deem it appropriate toFinterfere with the decision rendered by the High Court. We are of theopinion that the proceedings in the Foreign Court cannot be said to beoppressive or vexatious. The appeal is accordingly dismissed with noorder as to costs.

GKalpana K. Tripathy

Appeal dismissed.

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