Supreme Court - Daily Orders
Vivek Rai Gupta vs Niyati Gupta on 10 February, 2016
Bench: A.K. Sikri, Rohinton Fali Nariman
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 1123/2016
(Arising out of Special Leave Petition (C) No(s). 6993/2012)
VIVEK RAI GUPTA APPELLANT(S)
VERSUS
NIYATI GUPTA RESPONDENT(S)
WITH
CONTEMPT PETITION (C) No. 192/2012 in SLP(C) No. 6993/2012
O R D E R
Leave granted.
Having regard to the nature of the order we propose to pass, it is not necessary to take note of the facts in detail. Only material facts are stated, which are as under:
The appellant was the husband of the respondent. Both were living in Ohio, USA. Some disputes arose between them which led to the matrimonial discord. It resulted in filing of various proceedings by the respondent-wife against the appellant-husband herein. The respondent-wife has obtained decree of divorce from US Court. Even the appellant-husband filed divorce petition against the respondent-wife in India in which a decree of divorce has been granted. Thus, insofar as separation of the appellant-husband from the respondent-wife is concerned, that has attained finality.Signature Not Verified
The appellant-husband had contested the proceedings in US for Digitally signed by ASHWANI KUMAR Date: 2016.02.18 some time but thereafter he came back to India in the year 2004. 17:57:03 IST Reason:
Fearing that those proceedings shall continue ex-parte and may result in orders/decrees passed by the US Court adversely affecting 2 his interest, the appellant-husband filed a petition in the Family Court Bandra, Mumbai seeking Anti Suit Injunction. In the said suit, he also filed an application for grant of temporary injunction restraining the respondent-wife from pursuing the divorce petition in which the respondent-wife had also claimed maintenance. The Family Court Bandra, Mumbai vide its order dated 08.12.2011 dismissed the said application thereby rejecting the prayer for grant of injunction restraining the respondent-wife from pursuing the divorce petition. The appellant challenged that order by filing the Writ Petition in the High Court of Judicature at Bombay. The said Writ Petition has been dismissed vide impugned judgment dated 07.02.2012, thereby affirming the order of the Family Court Bandra, Mumbai. It is that judgment which is impugned in the present appeal, via special leave petition.
Notice was issued in the special leave petition filed by the appellant-husband and various orders were passed from time to time. It would be apposite to re-produce only two such orders, namely the orders dated 27.02.2012 and 01.04.2015. These orders are to the following effect:
“27.02.2012 Heard Ms.Indu Malhotra, learned senior counsel and perused the record including Additional Affidavit dated 25.02.2012 of the petitioner.
Subject to the petitioner depositing a sum of Rs.l crore in the Registry of this Court within a period of two months, which shall be invested in a fixed deposit in the UCO Bank Branch of the Supreme Court, issue notice to the respondent to show cause as to why leave may not be granted and she may not be restrained from continuing the proceedings pending in the Court of Common Pleas, Division of Domestic Relations, Cuyahoga Country, Ohio in Case No. DR-08-324383.3
Issue notice on the petitioner's prayer for interim relief.
In the meanwhile, the respondent is directed not to continue the proceedings instituted by her in Case No. DR- 08 - 324383, pending in the Court of Common Pleas, Division of Domestic Relations, Cuyahoga Country, Ohio.
01.04.2015 I.A. No. 5 in Contempt Petition No. 192/2012 application for exemption from personal appearance on behalf of the respondent is dismissed.
Contempt Petition (C) No. 192/2012:
Till the next date of hearing, we think it is unavoidable, expedient and necessary to restrain all Courts in India from passing any Orders which implement the orders/decrees passed in any foreign Court between the parties before us including any that are in the nature of execution of orders passed in the United States of America in litigation inter parties.
List all pending applications as well as this petition for further consideration on a non-miscellaneous day in the month of July, 2015.” Notwithstanding the aforesaid orders, the respondent-wife pursued the proceedings in US Court and Court of Common Pleas, Cuyahog County, Ohio, USA passed the judgment and decree dated 18.09.2012 in favour of the respondent-wife granting numerous reliefs to her including that of divorce. We may note that in spite of various orders passed by this Court directing the respondent-wife to appear in this Court, as she failed to appear, the aforesaid order dated 01.04.2015 was passed directing all the courts in this country not to execute the decrees passed by the foreign court.
The position which emerges from the aforesaid factual 4 background is that as of today the divorce petition in which the respondent-wife had also claimed other reliefs, is not pending as all the proceedings have already been culminated into judgment dated 18.09.2012 passed by the Court of Common Pleas, Cuyahog County, Ohio, USA as mentioned above. Therefore, there is no occasion to grant any anti suit injunction and, thus, the prayer made in this appeal is rendered infructuous.
However, at this stage, it needs to be noted that the appellant-husband has also filed Contempt Petition No. 192 of 2012 alleging violation of the order dated 27.02.2012 passed by this Court. As pointed out above, vide order dated 27.02.2012 this Court had restrained the respondent-wife from continuing with Case No. DR- 08 - 324383 pending in the Court of Common Pleas, Cuyahog County, Ohio, USA subject to the condition that the appellant-husband shall deposit a sum of Rs. 1 crore with the Registry of this Court. The appellant-husband had deposited the aforesaid amount.
It is the allegation of the appellant-husband that in spite of the aforesaid injunction order passed by this Court, the respondent-wife proceeded with the said proceedings in the US Court and ultimately got a decree of divorce, alimony and expenses and also order of monthly maintenance in the sum of USD 22,000/- vide decree dated 12.04.2012. On that basis, the case setup by the appellant-husband is that the action of the respondent-wife in continuing to proceed with the aforesaid case and obtaining a decree is contumacious and willful violation of the orders passed by this Court. It is also submitted that further contempt is 5 committed by not appearing in spite of directions given to this effect by various orders.
Mr. Minocha, learned counsel appearing for the respondent-wife, on the other hand, submits that the respondent-wife has not committed contempt of any orders passed by this Court. He points out that the order dated 27.02.2012 was passed by this Court restraining the respondent-wife from prosecuting the Case No. DR- 08 - 324383 pending in the Court of Common Pleas, Cuyahog County, Ohio, USA. He states that the decree is passed in divorce petition whi ch was Case No. DR-09-329401. He further submits that insofar as Case No. DR- 08 - 324383 is concerned, it was a petition for domestic violence filed by the respondent-wife against the appellant-husband which had been disposed of way back in the year 2009. On the aforesaid basis, it is contended that insofar as the divorce petition is concerned there was no injunction order passed by this Court and, therefore, the respondent-wife had every right to proceed with the said proceedings.
This argument is countered by Ms. Indu Malhotra, learned senior counsel appearing on behalf of the appellant-husband by submitting that the Case No. DR-09-329401 is in fact continuation of earlier Case DR- 08 – 324383. She has argued that as per Rule 39A and SRF Form B of the Rules of Superintendence for the Courts of Ohio, divorce cases, where the marriage is to be terminated without minor children, must be concluded within twelve months from the date of filing of the complaint for divorce. It is further pointed out that in case that does not happen, the petitioner can 6 file fresh petition and in the fresh petition the orders passed in the earlier petition can be relied and acted upon and, in fact, that amounts to continuation of the earlier proceedings. Prima facie, the contention of Ms. Indu Malhotra, learned senior counsel appears to be correct, even otherwise, we need not go into these details. Suffice it to state that the purpose of order dated 27.02.2012 was to direct the respondent-wife not to proceed with the divorce petition in which she had also claimed maintenance, alimony and expenses. As per order dated 27.02.2012, the respondent-wife was restrained from proceedings “pending” in the said Court of Ohio, USA. Not only this, as pointed out above, in spite of various orders passed by this Court in the aforesaid appeal as well as in the contempt petition directing the respondent-wife to appear in this Court, she failed to do so. It is clear from the above that the respondent-wife proceeded with the divorce petition and got decree dated 18.09.2012 in spite of injunction orders passed by this Court. Keeping in view the aforesaid, this Court had passed the order dated 01.04.2015 directing that no court in this country shall execute the aforesaid decree.
Be that as it may, we are informed that insofar as some of the properties of the appellant in USA are concerned, they have also been sold either in execution or in some insolvency proceedings. As far as execution of the decree in US Court is concerned, this Court has no role to play. The appellant-husband has one property in Jaipur namely 709, Fountain Square, Jaipur. Mr. Minocha, learned counsel appearing for the respondent-wife on instructions from the 7 instructing counsel submits that the respondent-wife shall not execute the decree qua the aforesaid property in Jaipur and the statement he makes to put quietus to the controversy.
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. At that stage, it shall also be permissible for the appellant-husband to take a plea that the decree in question was passed by US Court even after the injunction orders passed by this Court and, therefore, should not be executed. We make it clear that it will also be permissible for the respondent-wife to plead that the decree passed is not in violation of any orders and it would be for the Court where the execution petition is filed to decide such an issue in accordance with law.
Accordingly, the Civil Appeal as well as Contempt Petition are disposed of by making the aforesaid order dated 01.04.2015 absolute.
......................J. [A.K. SIKRI] ......................J. [ROHINTON FALI NARIMAN] NEW DELHI;
FEBRUARY 10, 2016
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ITEM NO.1 COURT NO.12 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 6993/2012 (Arising out of impugned final judgment and order dated 07/02/2012 in WP No. 743/2012 passed by the High Court Of Bombay) VIVEK RAI GUPTA Petitioner(s) VERSUS NIYATI GUPTA Respondent(s) WITH CONMT.PET.(C) No. 192/2012 In SLP(C) No. 6993/2012 (With Office Report) Date : 10/02/2016 These matters was called on for hearing today. CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN For Petitioner(s) Ms. Indu Malhotra, Sr. Adv.
Mr. Vikas Mehta,Adv.
Mr. Apoorva Bhumesh, Adv.
Mr. Tanveer Nayar, Adv.
Ms. Rakhi Mohanty, Adv.
Ms. Anushree Menon, Adv.
For Respondent(s) Mr. Arvind Minocha, Adv.
Mr. R.K. Aggarwal, Adv.
Ms. Veena Minocha, Adv.
UPON hearing the counsel the Court made the following O R D E R The Civil Appeal and Contempt Petition are disposed of in terms of the signed order.
Interlocutory Application(s) pending, if any, shall stand disposed of accordingly.
(Ashwani Thakur) (Tapan Kr. Chakraborty)
COURT MASTER COURT MASTER
(Signed order is placed on the file)