Delhi District Court
Anuradha vs Divyanshu Gautam on 12 February, 2016
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IN THE COURT OF Ms. SUNENA SHARMA
Addl. Distt Judge - 03 (SE)
SAKET COURTS COMPLEX: NEW DELHI
CS No.564/2015
Unique Case ID No.02406C0407242015
Date of Institution : 18.12.2015
Arguments concluded : 28.01.2016
Date of decision : 12.02.2016
Anuradha versus Divyanshu Gautam
ORDER
1. Vide this order, I shall decide the point of maintainability, upon which arguments from the plaintiff's side were heard. Issue of maintainability was raised by the court prior to issuing notice in the matter.
2. In the present suit, which has been filed through an attorney, a wife is seeking an anti suit injunction against her husband for restraining him from proceeding with the legal proceedings of petition for divorce bearing file No. MLC/0326/2015 filed by her husband against plaintiff before a Federal Court in Melbourne, Australia.
3. As per the memo of parties both the plaintiff and defendant are presently residing in Melbourne, Australia where, the aforementioned divorce petition has been allegedly filed by CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 2 of 15 defendant against plaintiff. It is informed during the course of arguments that plaintiff since September-October, 2015 has been living in Australia at the address mentioned in the plaint. Hence, admittedly both the parties to the present suit are presently working and living in Melbourne, Australia.
4. As averred in the plaint, both the parties to this suit are Indian citizen and their marriage was solemnized in India and plaintiff by way of present suit interalia seeks the relief to prevent defendant from deploying legalistic techniques to bypass natural and ordinary court of appropriate jurisdiction in order to perpetuate incalculable harm and loss by securing an order that would virtually deny and deprive the plaintiff from asserting her legitimate rights in Indian Courts because the Australian Laws and process of adjudication in Australia Courts is not in conformity with Indian Laws.
5. Perusal of plaint shows that parties after their marriage on 24.08.2012 had stayed maximum time at Melbourne, Australia. After marriage, plaintiff went to Australia to join her husband there on 24.05.2013. Prior to that plaintiff had stayed for some time at her matrimonial home at Shalimar Bagh, Delhi. The couple came back to India on 26.07.2013 and again went back on 31.07.2013. In Feb, 2014, plaintiff got a job in Healthcare Community Child Care Centre. On 06.04.2014, plaintiff came to India during Easter CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 3 of 15 holidays and after staying here till 16.05.2014 she went back to Australia. Then again on 07.10.2014, defendant brought plaintiff to India and after leaving her at Airport he went away and later on plaintiff came to know that defendant had gone back to Australia on 24.10.2014.
6. During plaintiff's stay at her matrimonial home before she left for Australia on 24.08.2012 and also during the period when she stayed with defendant at Australia, plaintiff was allegedly subjected to constant ill treatment, atrocities and harassment by her husband and in laws. Details of said incidents are not mentioned herein since they are not necessary for disposal of present issue of maintainability.
7. I have heard the arguments from the counsel for the plaintiff on the point of maintainability of present suit filed for seeking anti suit injunction.
8. As per Section 41 (b) of Specific Relief Act, 1963, an injunction cannot be granted to restrain any person from instituting or prosecuting any proceedings in a court not subordinate to that from which the injunction is sought. In the instant case, the proceedings sought to be injuncted are pending in a foreign court.
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9. It is argued on behalf of plaintiff that in Australia 'no fault' divorce system is applicable and in case said legal proceedings are allowed to continue, the same would result in conflict of laws and would defeat the legitimate rights of the plaintiff to get the protection of Indian Laws especially when both the parties are governed by Indian Laws as their marriage was solemnized in India and they both are Indian citizens. It is further stated that the process of adjudication in Australian courts is not inconformity with Indian laws specially relating to marriage and divorce. Therefore, a restraint order against defendant from instituting or pursing any action in the court of foreign jurisdiction is necessary. It is further urged that doctrine of forum convenience requires the parties to agitate issues before the court of competent jurisdiction which is also convenient court to all disputing parties.
10. In this regard, counsel for plaintiff has argued that forum non conveniens is a well recognized principle under English law which has been frequently followed by the Indian courts specially when such injunction orders are necessary for furtherance of justice and to avoid multiplicity of proceedings. He further argued that the criteria which the court should consider in granting this form of injunction is whether justice can be done at substantially less in convenience and expense in such court than in foreign court.
CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 5 of 15 In support of his arguments, counsel for plaintiff placed reliance on the judgment of Hon'ble Supreme Court in Modi Entertainment Network & Ors. v. W.S.G. Cricket PTE Ltd. Appeal, (Civil) 422 of 2003 decided on 21.01.2003 and judgments of Hon'ble Delhi High Court in Anubha v. Vikas Aggarwal AIR 2003 Delhi 175; Padmini Hindpur v. Abhijit Bellur CS (OS) 2916/2014 decided on 24.02.2015.
11. In Modi Entertainment (supra), it was held by the Hon'ble Apex Court that doctrine of anti suit injunction which is based on the principle of forum non-conveniens, has to be applied with care and caution as it involves the issue of respect for corresponding international forums. It was further observed that courts in India like the courts in England are courts of both law and equity and thus the principles governing grant of injunction as equitable relief by the court would also govern grant of anti suit injunction, which is a species of injunction. However, the rule of comity of courts requires this power to be exercised sparingly because such an injunction though directed against a person in effect causes interference in exercise of jurisdiction by another court. However, the fundamental principle applicable to grant of such injunction would be to choose that forum in which the case could be tried more suitably for the interest of all the parties and for the ends of justice.
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12. The principles governing anti-suit injunction as set out in Para 23 of the Modi Entertainment Network (supra) are as under:
"From the above discussion the following principles emerge- (1) In exercising discretion to grant an anti-suit injunction the Court must be satisfied of the following aspects-
(a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the Court;
(b) if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and
(c) the principle of comity-respect for the Court in which the commencement or continuance of action/proceeding is sought to be restrained- must be borne in mind; (2) in a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non conveniens;
(3) Where jurisdiction of a Court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or non exclusive jurisdiction of the Court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the Court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case;
(4) a Court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have greed to submit to the exclusive jurisdiction of a Court including a foreign Court, a forum of their choice in regard to the commencement or continuance of proceedings in the Court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 7 of 15 impossible for the party seeking injunction to prosecute the case in the Court of choice because the essence of the jurisdiction of the Court does not exist or because or a vis major or force majeure and the like;
(5) where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to non-exclusive jurisdiction of the Court of their choice which cannot be treated just an alternative forum;
(6) a party to the contract containing jurisdiction clause cannot normally be prevented from approaching the Court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause approaches the Court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that Court cannot per se be treated as vexatious or oppressive nor can the Court be said to be forum non conveniens; and (7) the burden of establishing that the forum of the choice is a forum non conveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same."
13. The question of anti suit injunction and forum non conveniens also came up for consideration before Hon'ble Delhi High Court in Horlicks Ltd. & Anr. v. Heinz India (Pvt.) Ltd. 2009 SCC; wherein court discussed the entire history of said principle/doctrine which had its origin in common law and also discussed numerous foreign judgments on these issues. In Para 42 of said judgment, previous order of the Hon'ble High Court in Moser Baer India Ltd. v. Koninklijke Philips Electronics NV., CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 8 of 15 (151) 2008 DLT 180 wherein court explained the distinction between said two doctrine by giving example as under:
"42. The concepts of anti-suit injunction and forum non conveniens require some examination. An anti-suit injunction is granted by a Court preventing the parties before it from instituting or continuing with proceedings in another Court. On the other hand, the doctrine of forum non conveniens is invoked by a Court to not entertain a matter presented before it in view of the fact that there exists a more appropriate Court of competent jurisdiction which would be in a better position to decide the lis between the parties. So, in a sense the principle on which an anti-suit injunction is invoked is just the reverse of the principle on which the doctrine of forum non conveniens is employed. To make it absolutely clear, an example would be appropriate. Assuming that there are two Courts A and B at different places and both having jurisdiction in a particular matter, a party may approach Court A for an anti-suit injunction against the other party preventing them from instituting a suit or other proceedings in Court B. Of course, while considering the grant of an anti-suit injunction, Court A would take into account as to which of the two Courts is the more convenient forum. However, when a party approaches Court A and the defendants take up the plea that Court A is a forum non conveniens and that the matter ought to be more appropriately dealt with by Court B, then Court A, invoking the principles of forum non conveniens, may refuse to entertain the matter presented to it and direct the parties to approach Court B being the more convenient forum. Thus, it is seen that in an anti-suit injunction, one Court grants an injunction restraining the parties from approaching another Court. Whereas, in the case of the doctrine of forum non conveniens, the Court before whom the matter is presented, itself refused to entertain the same and directs the parties to approach the other Court being the more appropriate and convenient forum. It must also be kept in mind that the Court granting an anti-suit injunction must otherwise have jurisdiction over the matter. Similarly, the Court rejecting a matter on the principle of forum non conveniens, must otherwise also CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 9 of 15 have jurisdiction to entertain the same. This is so because if the Court in either case does not have jurisdiction then, it cannot deal with the matter and, consequently, it can neither grant an anti suit injunction nor pass an order refusing to hear the matter on the plea of forum non conveniens."
14. In Horlicks (supra), it was argued before Hon'ble Division Bench that the principle of forum non conveniens being the other side of coin of doctrine of anti suit injunction and having been applied to domestic forums of Indian Courts, there would be no doubt that principle of forum non conveniens would equally apply. While rejecting the said arguments, the Hon'ble Division Bench held as that there is no dispute about the applicability of the doctrine of anti-suit injunction and the principle of forum non conveniens as applicable to foreign forums. As regard the applicability of said principles in domestic forum, Hon'ble Court laid down following law:
"Para 92. On the conspectus of the aforesaid, we hold as under;
(i) The doctrine of anti-suit injunction though may be applicable both in foreign forums and domestic forums in different countries has no place in India regarding another domestic forum in view of the specific bar created by Section 41 (b) of the said Act as interpreted in Cotton Corporation of India Limited v. United Industrial Bank Limited case (supra). It would apply only in case of a foreign forum or in a situation where an injunction is sought against a domestic court which is subordinate to the one where such an application is made.
(ii) The principle of forum non conveniens applies to foreign forums and Indian Courts can apply the said principle vis-a-vis foreign forums or while exercising discretionary jurisdiction under Article 226 of the CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 10 of 15 Constitution of India.
(iii) The principle of forum non conveniens does not apply to civil suits in India which are governed by the said Code, there being no provision under the Code for the same and recourse to Section 151, CPC is not permissible for application of the principle of forum non conveniens to domestic forums especially keeping in mind that it is the other side of the coin of the doctrine of anti-suit injunction.
An aggrieved party can, however, approach the Supreme Court under Section 25 of the said Code".
15. From the aforementioned judgments, the position of law that emerges out is that doctrine of anti suit injunction would apply only in case of a foreign forum or in a situation where an injunction is sought against a domestic court which is subordinate to one where such an application is made. Hence, there is no legal bar for a civil court to grant anti suit injunction to restrain legal proceedings pending before a foreign forum, but the courts are required to issue great care and caution while passing such injunction.
16. In the light of the principle governing anti suit injunction, laid down by Hon'ble Apex Court in Modi Entertainment (supra), court may grant anti suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non conveniens and in exercise of its discretion to grant anti suit injunction, court will examine as to which is the appropriate forum having regard to convenience of parties.
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17. In the instant case, parties are currently working and residing in Melbourne, Australia, where the divorce proceedings have been allegedly instituted by defendant. In said circumstances, I am surprised that how can the Indian courts be treated as an appropriate forum on the basis of principle of forum conveniens. The choice of appropriate forum is to be made on the basis of factors designed to ensure, if possible, that action is tried in the jurisdiction that has the closest connection with the action and the parties and not to secure a juridical advantage of one of the litigant at the expense of other in a jurisdiction that is otherwise inappropriate. While deciding which forum would be the appropriate forum to decide the action, it is necessary to see where the justice can be done at substantially less in convenience and expense and where the action had most real and substantial connection such as availability of witnesses and the law governing the relevant transaction and the places where the parties respectively reside or carry on business. And unless the balance is strongly in favour of party seeking injunction, the choice of forum of opponent party should rarely be disturbed.
18. Mere loss of juridical advantage, will not amount to an injustice if the court is satisfied that substantial justice will be done in the appropriate forum. Dampierra vs. De Dampierre [(1987)] 2 WLR 1006 (H.L.) is an interesting illustration of aforementioned principle. In said case petitioner wife resisted stay CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 12 of 15 of her divorce proceedings in England on the ground that in France, where her husband had also commenced proceedings, she would be deprived of support if her conduct was found to be exclusive cause of the break up of marriage. Having found that husband had satisfied the first condition establishing France as the appropriate forum, the loss of juridical advantage was considered not sufficient to work an injustice in that substantial justice would still be done under the matrimonial regime obtaining in France.
19. It has been time and again held by Hon'ble Supreme Court that as in the cases of other jurisdictions, the power to issue such injunctive relief must be exercised with extreme caution because, although in theory the order operates in personan, an anti suit injunction effectively restricts the foreign court's ability to exercise its jurisdiction. In Horlicks Ltd. (supra), it was observed by the Hon'ble High Court that a party can have no reasonable expectation of advantages available in a jurisdiction with which the party and the subject matter of litigation has little or no concern.
20. In the case in hand, admittedly both parties are presently working and living in Melbourne, Australia; and after marriage, the couple had stayed together maximum time in Melbourne, Australia. Most of the allegations of cruelty and ill treatment committed against plaintiff are also pertaining to period CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 13 of 15 when parties had stayed in Melbourne, Australia. Even the notice of divorce proceedings initiated by defendant at Federal Court, Australia, was also served upon plaintiff at her address at 383, Middle Borough Road, Box Hill 3128 in Melbourne, Australia, which is also evident from the copy of divorce application filed by defendant before Federal Court, Australia. In said circumstances, the case of plaintiff is absolutely lacking for applicability of principle of forum conveniens.
21. In Gaffur v. State of Uttrakhand (2008) 10 SCC 97 the Hon'ble Supreme Court and the Division Bench of Hon'ble Delhi High Court in PPA Impex Pvt. Ltd. v. Mangal Sain Mittal 166 (2010) DLT 84, have held that if on a meaningful, not formal reading, the pleadings are found be manifestly vexatious and meritless, not disclosing a right to sue or defend and implausible, the court should exercise its powers and should not allow it to create an illusion and should not permit it to go to trial. The Hon'ble Apex court in T. Arivandandam v. T.V. Satyapal, (1997) 4 SCC 467 and in Liverpool & London S.P. & I Association Ltd. and in ITC Ltd. v. Debt Recovery Appellate Tribunal 1998 (2) SCC 70 has held that proceedings of which there is no possibility of success and/or which are deadwood and are doomed should be shot down at the earliest stage and ought not to be permitted to clock the resources of the court and at the cost of other deserving matters requiring the attention of the CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 14 of 15 courts and should not be allowed to be used as a device to harass.
22. Counsel for plaintiff has placed strong reliance on the judgment of Hon'ble Delhi High Court in Padmini Hinpur vs. Abhijit Bellur in CS No. 2916/14 decided on 24.02.2015, wherein an anti suit injunction was granted by Hon'ble Delhi High Court in favour of a wife for deferring the proceedings of a divorce case filed by her husband before the Maryland Court at USA.
23. I have carefully gone through the said judgment, and same in my view is clearly distinguishable on facts in as much as in said case wife was resident of India and she herself had approached the court for seeking anti suit injunction. Further in said case, the wife i.e. the plaintiff therein, had not resided even for a single day in Maryland, USA where the proceedings were initiated by husband for divorce and it is in said circumstances, the litigation before Maryland court, USA was held to be prejudicial and vexatious. Whereas, in the instant case, after marriage, for maximum time parties had lived in Melbourne, Australia and it is for this reason, present suit has been filed by plaintiff only through her mother cum attorney. And even presently, both parties are working and living in Melbourne, Australia where the divorce proceedings are stated to be pending.
24. The other two judgments in Anubha (supra) and Y. CS No.564/2015 Anuradha vs. Divyanshu Gautam Page 15 of 15 Narasimha Rao (supra) are also not applicable as the issue in both said judgments was relating to enforceability of decrees of foreign courts, which having regard to controversy before this court, is totally an unrelated issue.
25. Considering the aforementioned settled position of law relating to rules governing anti suit injunction, I am of the view that no cause of action is made out in present case. Hence, suit is dismissed. File be consigned to record room.
(Sunena Sharma) Addl. Distt Judge-03/South-East Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 12.02.2016.
CS No.564/2015 Anuradha vs. Divyanshu Gautam