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Tuesday, April 17, 2018

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

REPORTABLE
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3878 2018
( Arising out of Special Leave Petition (Civil) No. 10078 of 2018)
@ CC No.22197/2016
Dinesh Singh Thakur ...…...Appellant(s)
Versus
Sonal Thakur ….…Respondent(s)
J U D G M E N T
R.K.Agrawal, J.
1) Leave granted.
2) The present appeal has been filed against the impugned
judgment and order dated 03.11.2016 passed by the High Court
of Punjab & Haryana at Chandigarh in CR No. 7190 of 2016
whereby learned single Judge 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-interim injunction
granted against the respondent-wife, vide order dated 26.09.2016
has been vacated.
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Brief facts:-
3) Having regard to the nature and circumstances of the case,
we do not intend to discuss all the facts in detail at this stage.
Hence, the facts are stated in a summarized way only to
appreciate the issue involved in this instant appeal.
(a) The marriage between Dinesh Singh Thakur-the
appellant-husband and Sonal Thakur - respondent-wife was
solemnized on 20.02.1995 as per Hindu rites and two children
were born out of the said wedlock. The appellant-husband was
working in United States of America (USA) at the time of marriage
and he took the respondent-wife to USA on Dependent Visa.
Both the parties got the citizenship of USA in May, 2003. They
obtained “PIO” status (Person of India Origin) in June 2003 and
“OCI” status (Overseas Citizens of India) in July 2006.
(b) The appellant-husband filed a petition being H.M.A. No. 601
of 2016 under Sections 13 and 26 of the Hindu Marriage Act,
1955 (in short ‘the Act’) against the respondent-wife at the Family
Court, Gurgaon which is pending adjudication before the Court.
Subsequently, the respondent-wife filed a petition being Case No.
2016-008918-FD in the Circuit Court of the Sixth Judicial
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Circuit in and for Pinellas County, Florida, USA for divorce on the
ground of irretrievable breakdown of marriage and other reliefs.
Thereafter, the appellant-husband filed Civil Suit No. 15 of 2016
before the District Judge, Family Court, Gurgaon, under Section
7 of the Act for permanent injunction and declaration inter alia to
restrain the respondent-wife from pursuing the petition for
divorce before the Court in USA.
(c) Learned District Judge, vide order dated 26.09.2016,
granted ex parte ad interim injunction to the appellant-husband.
Being aggrieved, the respondent-wife filed an application for
vacation and modification of the order dated 26.09.2016. Learned
District Judge, vide order dated 18.10.2016, 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. Learned single Judge of the High Court, vide order
dated 03.11.2016 dismissed the petition filed by the
appellant-husband.
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(e) Aggrieved by the judgment and order dated 03.11.2016, the
appellant-husband has filed this appeal by way of special leave
before this Court.
4) Heard Ms. Indu Malhotra, learned senior counsel for the
appellant-husband and Mr. V. Giri, learned senior counsel for the
respondent-wife and perused the record.
Point(s) for consideration:-
5) The only point for consideration before this Court is whether
in the present facts and circumstances of the case, the
appellant-husband is entitled to the decree of anti-suit injunction
against the respondent-wife?
Rival submissions:-
6) Learned senior counsel for the appellant-husband
contended that as the appellant herein had already filed a
petition seeking dissolution of marriage of the parties in which
the respondent-wife was served on 04.08.2016 and she had
caused appearance on 16.09.2016, the proceedings initiated by
the respondent-wife seeking a decree of divorce in a Foreign
Court on the ground of irretrievable breakdown of marriage
which is not a ground for divorce under the Act are liable to be
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stayed. Further, the respondent-wife, along with her minor
children is residing in India 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-husband in India, is an abuse of
process of law and amounts to multiplicity of proceedings.
7) Learned senior counsel further contended that the
respondent-wife is admittedly residing at Gurgaon, therefore, the
court at Gurgaon would be the forum convenient to both the
parties. She further contended that the trial Court has only
considered the provisions of Section 41(b) of the Specific Relief
Act, 1963 (in short ‘the SR Act’) and the decision in the case of
Rakesh Kumar vs. Ms. Ashima Kumar – AIR 2007 P&H 63 but
did not take into consideration the provisions of Section 41(a) of
the SR Act, relevant in the present context. Learned senior
counsel for the appellant-husband finally contended that the
High Court was not right in upholding the order of the court
below on vacating the ad-interim injunction and interference in
this regard is sought for by this Court.
8) Learned senior counsel for the respondent-wife while
refuting the claims made by learned senior counsel for the
appellant-husband submitted that the petition that has been
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filed before the Court at Florida is not only for dissolution of
marriage of the parties but also for claiming various other reliefs
such as equitable distribution of marital assets, child support,
alimony, partition and other reliefs that are not available under
the Indian Law. Learned senior counsel further submitted that
the irreparable loss or injury shall be caused to the
respondent-wife and to the 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, including a foreign court. Simply put, an anti-suit
injunction is a judicial order restraining one party from
prosecuting a case in another court outside its jurisdiction. The
principles governing grant of injunction are common to that of
granting anti-suit injunction. The cases of injunction are
basically governed by the doctrine of equity.
10) It is a well-settled law that the courts in India have power
to issue anti-suit injunction to a party over whom it has personal
jurisdiction, in an appropriate case. However, before passing the
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order of anti-suit injunction, courts should be very cautious and
careful, and it should be granted sparingly and not as a matter of
routine as such orders involve a court impinging on the
jurisdiction of another court, which is not entertained very easily
specially when the it restrains the parties from instituting or
continuing a case in a foreign court.
11) In this backdrop, it is worthwhile to quote Section 41 of the
SR Act which provides for various instances and circumstances
under which injunction cannot be granted.
“41. Injunction when refused.—An injunction cannot be
granted—
(a) to restrain any person from prosecuting a judicial proceeding
pending at the institution of the suit in which the injunction is
sought, unless such restraint is necessary to prevent a
multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any
proceeding in a court not subordinate to that from which the
injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any
proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which
would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is
not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has
acquiesced;
(h) when equally efficacious relief can certainly be obtained by
any other usual mode of proceeding except in case of breach of
trust;
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(i) when the conduct of the plaintiff or his agents has been such
as 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 not
applicable to the instant case rather it is applicable only to those
cases where question is regarding the injunction for proceedings
in the Indian court. In support of this argument, learned senior
counsel placed reliance on Oil and Natural Gas Commission
vs. Western Company of North America (1987) 1 SCC 496,
wherein this Court, while interpreting the provision of Section
41(b) of the Specific Relief Act, 1963 has held as follows:-
“18….This provision, in our opinion, will be attracted only in a
fact-situation where an injunction is sought to restrain a party from
instituting or prosecuting any action in a court in India which is
either of coordinate jurisdiction or is higher to the court from which
the injunction is sought in the hierarchy of Courts in India…..”
13) Learned senior counsel for the appellant-husband further
placed reliance on Modi Entertainment Network and Another
vs. WSG Cricket PTE Ltd. 2003 (4) SCC 341, wherein this Court
while dealing with the matter laid down certain principles
required to be taken into consideration by any court while
granting an anti-suit injunction. These principles are as under:-
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 The defendant, against whom injunction is sought, is
amenable to the personal jurisdiction of the court.
 If the injunction is declined, the ends of justice will be
defeated and injustice will be perpetuated and;
 The principle of comity-respect for the court in which the
commencement or continuation of action/proceeding is
sought to be restrained-must be borne in mind.
14) In Modi Entertainment Networks (supra), this Court has
reiterated this position by holding that the courts in India like
Court in England are courts of law and equity. The principles
governing the grant of anti-suit injunction being essentially an
equitable relief; the courts in India have the powers to issue
anti-suit injunction to a party over whom it has personal
jurisdiction in an appropriate case; this is because the courts of
equity exercise jurisdiction in personam; this power has to be
exercised sparingly where such an injunction is sought and if not
granted, it would amount to the defeat of ends of justice and
injustice would be perpetuated.
15) In Vivek Rai Gupta vs. Niyati Gupta, Civil Appeal No.
1123 of 2006, decided on February 10, 2016, this Court has held
as under:-
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“If the execution proceedings are filed by the respondent-wife
for executing the aforesaid decree dated 18.09.2012 passed
by the Court of Common Pleas, Cuyahoga Country, Ohio,
USA against any other movable/immovable property in India
it would be open to the appellant-husband to resist the said
execution petition on any grounds available to him in law
taking the position that such a decree is not executable.”
16) Further, in Harmeeta Singh vs. Rajat Taneja 2003 (67)
DRJ 58, the Delhi High Court considering the fact that the
parties have lived together for a very short time in the United
States of America had granted anti suit injunction.
17) Y. Narasimha Rao & Others vs. Y. Venkata Lakshmi
and Another (1991) 3 SCC 451, this Court has held as under:-
“20. From the aforesaid discussion the following rule can be
deduced for recognising a foreign matrimonial judgment in
this country. The jurisdiction assumed by the foreign court
as well as the grounds on which the relief is granted must be
in accordance with the matrimonial law under which the
parties are married. The exceptions to this rule may be as
follows: (i) where the matrimonial action is filed in the forum
where the respondent is domiciled or habitually and
permanently resides and the relief is granted on a ground
available in the matrimonial law under which the parties are
married; (ii) where the respondent voluntarily and effectively
submits to the jurisdiction of the forum as discussed above
and contests the claim which is based on a ground available
under the matrimonial law under which the parties are
married; (iii) where the respondent consents to the grant of
the relief although the jurisdiction of the forum is not in
accordance with the provisions of the matrimonial law of the
parties.”
18) Further, during the course of hearing, various documents
such as pan card, Aadhar card of the respondent-wife, lease
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deed which was executed by her in 2015 etc., which are also
placed on record, are sufficient to show that respondent-wife is
ordinarily living in India. Further, as it appears from the
proceedings recorded before the US court that the respondent
herself has admitted that the Family Court Gurgaon has
jurisdiction in the given case. The evidence placed on record is
sufficient enough to show that the respondent is amenable to
the personal jurisdiction of Gurugram Family Court. Though
the respondent-wife is amenable to the jurisdiction of Family
Court, Gurgaon, there is nothing on record to hold that the other
party will suffer grave injustice if the injunction is not granted.
There is no dispute to the fact that both the parties are
permanent citizens of U.S. Undisputedly, the Circuit Court,
Florida, USA is also having the concurrent jurisdiction in the
given case. The contention that the appellant-husband will
suffer grave injustice if the proceedings are allowed to be
continued in the Circuit Court, Florida USA doesn’t stand to the
ground as the appellant himself has been residing there after
2007 and the proceedings for grant of anti-suit injunction were
initiated by him in India through another person by empowering
him through a power of attorney to file and pursue the disputed
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litigation on his behalf. Further, there is nothing brought on
record to show how the appellant-husband would suffer grave
injustice if the injunction restraining the respondent-wife from
pursuing the divorce petition in Florida, is not granted. Still
further, even if the injunction is declined, it cannot be said that
the ends of justice will be defeated and injustice will be
perpetuated.
19) The contention that the respondent-wife has filed the
petition for divorce in the court at USA on the ground of
irretrievable breakdown of marriage which is not the ground
provided for divorce under the Act requires consideration. The
mere fact that the respondent-wife has filed the 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
getting a decree for divorce. Specifically, in view of the fact that
the appellant has raised this contention before the Circuit Court,
Florida and both the parties will produce evidence with regard to
the question whether their marriage is governed by the Act or
any other law.
20) Foreign court cannot be presumed to be exercising its
jurisdiction wrongly even after the appellant being able to prove
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that the parties in the present case are continued to be
governed by the law governing Hindus in India in the matter of
dispute between them.
21) In view of above discussion and after having regard to the
nature of case and other peculiar facts, we do not deem it
appropriate to interfere with the decision rendered by the High
Court. We are of the opinion that the proceedings in the Foreign
Court cannot be said to be oppressive or vexatious. The appeal
is accordingly dismissed with no order as to costs.
……………………………………J.
 (R.K. AGRAWAL)
…………………………………….J.
 (R. BANUMATHI)
NEW DELHI
APRIL 17, 2018
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