SHRI SUMIT SAPRA Vs SMT AKANSHA AHUJA SAPRA Judgment by Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 06.12.2023
Judgment delivered on: 03.01.2024
+ MAT.APP.(F.C.) 358/2023 & CM APPL. 62410/2023
SHRI SUMIT SAPRA ….. Appellant
Through: Mr. Arvind Kumar Sharma and Mr. Aniteja Sharma, Advocates.
versus
SMT. AKANSHA AHUJA SAPRA ….. Respondent
Through: Mr. Neeraj Gupta and Mr. Prateek Goswami, Advocates.
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
J U D G M E N T
ANOOP KUMAR MENDIRATTA, J.
1. The challenge in this appeal is to an order dated November 20, 2023 passed by learned Judge, Family Court, North District, Rohini, Delhi, whereby the application preferred on behalf of the appellant under Order XXXIX Rule 1 & 2 C.P.C. read with Section 151 C.P.C. was dismissed and ad-interim injunction granted vide order dated October 26, 2023 was vacated.
2. In brief, as per the case of the appellant, marriage between the appellant and the respondent was solemnized according to Hindu rites and ceremonies on October 17, 2018 in Delhi. The parties moved to USA after few days of marriage on December 16, 2018. A child was born out of the wedlock on September 27, 2021 and is currently living in USA in joint custody of the parties.
3. It is further the case of the appellant that on October 17, 2022, the parties reached Delhi from USA, but the respondent did not permit the family of the appellant to meet the new born child. Thereafter, they returned to USA in January 2023. Further, as on April 02, 2023, the parties were living in the same house but without co-habitation.
4. Thereafter, a petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 was preferred on behalf of appellant, seeking divorce on the grounds of cruelty, before the Family Court, Rohini on May 19, 2023, which is listed for hearing on February 13, 2024.
5. A petition was also preferred on behalf of the respondent wife in the State of Michigan before Judicial Circuit Probate Court, County of Oakland, Family Division, USA vide case No. 2023-522892-Dm titled as �Akansha Ahuja Sapra v. Sumit Sapra� and notice/summons of the said case were received by the appellant on September 26, 2023.
6. In the aforesaid background, appellant preferred an anti-suit injunction read with Section 7 and 8 of the Family Courts Act, 1984 being CS No.53/23 on October 16, 2023 before the Principal Judge, Family Court, North District, Rohini, Delhi for restraining the wife from proceeding with divorce petition filed by her before the Court in State of Michigan, USA. An ex parte ad-interim injunction was granted by learned Judge, Family Court vide order dated October 26, 2023 but the application under Order XXXIX Rule 1 & 2 C.P.C. was finally dismissed vide order dated November 20, 2023 and the interim stay was vacated.
7. The case of the appellant is that respondent has preferred the divorce proceedings before the State of Michigan, Judicial Circuit Probate Court, County of Oakland, Family Division, USA with a malafide and ulterior motive, despite the fact that the marriage between the parties was solemnized at Delhi and both the parties lastly resided as husband and wife in India. Further, the respondent has a permanent address in Delhi.
It is further contended by learned counsel for appellant that the parties are permanent citizens of India but have been residing in USA only because of their respective jobs. The residence of both the parties is stated to be only temporary since they did not apply for �Green Card�. It is emphasized that appellant had not submitted to the jurisdiction of the Court in USA at the time of filing of proceedings before the Family Court. It is further urged that respondent filed the divorce case in USA on the grounds which are not recognized under the Hindu Marriage Act, 1955 and as such, the decree of divorce, if passed by the Courts in USA in favour of the respondent, shall not be recognised under Section 13 of Code of Civil Procedure, 1908. Written submissions have also been filed on record.
Reliance is further placed upon Madhavendra L. Bhatnagar v. Bhavna Lall, (2021) 2 SCC 775, Y. Narsimha Rao and Ors. v. Y. Venkata, (1991) 3 SCC 451, Soundur Gopal v. Soundur Rajini, (2013) 7 SCC 426, Modi Entertainment v. WSG Cricket Pte. Ltd., (2003) 4 SCC 341, Essel Sports Pvt. Ltd. v. BCCI, (2011) 178 DLT 465 (DB) and Damini Manchanda v. Avinash Bhambhani, 2022 SCC OnLine DL 1957.
8. On the other hand, learned counsel for respondent submits that both the parties moved to USA immediately after the marriage, wherein the appellant was residing since 2010. It is pointed out that child was born out of the wedlock in USA and is a USA citizen by birth. Reliance is also placed upon Paul Mahinder Gahun v. Silina Gahun, 2006 90 DRJ 77. It is vehemently contended that the Court in USA is of competent jurisdiction to comprehensively decide the rights of the parties including the custody/guardianship rights in respect of the minor child. The proceedings are stated to have been initiated by the appellant in India with the sole intention of defeating the rights of the respondent, despite the fact that the Court in USA is the forum conveniens for both the parties.
It is also pointed out by learned counsel for respondent that appellant had already applied for Green Card with the concerned authorities in USA in 2017 and the parties had also purchased a property in USA.
The jurisdiction of the Family Court in Delhi is also challenged since the parties have been residing in USA. Further, respondent is stated to have stayed only for few days at Krishna Nagar, Delhi and had thereafter shifted to USA. It is urged that the child cannot be deemed to be ordinary resident of Delhi and as such the custodial rights could only adjudicated upon by the Court in USA.
In support of the contentions, reliance is placed upon Dinesh Singh Thakur v. Sonal Thakur, Civil Appeal No. 3878/2018 and Naina Surat Rawat v. Mukul Goyal, CS (OS) 254/2021.
9. At this stage, it may be noticed that learned Judge, Family Court was of the opinion that the Court in USA is forum conveniens for both the parties and the proceedings instituted in USA cannot be considered as oppressive. Further, relying upon Dinesh Singh Thakur v. Sonal Thakur (supra), it was observed that the Court in USA does not lack competence/jurisdiction to entertain matrimonial disputes between the parties. It was further observed that �irretrievable breakdown of marriage� is a recognized ground of divorce in India though the jurisdiction vests only with the Hon�ble Supreme Court under Article 142 of the Constitution of India.
The contention raised by learned counsel for the appellant that judgment passed by the Court of USA will not be recognised under Section 13 of C.P.C. also did not find favour with learned Judge, Family Court since Section 552.26 of the Michigan Compiled Law provides that the defendant may either admit or deny the grant of divorce alleged by the other party and also provided opportunity to parties to lead evidence.
10. At the outset, relying upon Y. Narasimha Rao and Ors. v. Y. Venkata Lakshmi Rao and Anr., (1991) 3 SCC 451, it has been contended on behalf of appellant that since the parties are governed by HMA, 1955 but the divorce has also been sought on behalf of respondent in the Court at the State of Michigan on the grounds of irretrievable breakdown of marriage, which is not recognized under HMA, 1955, the judgment and decree may not satisfy the rigours of Section 13 of CPC, 1908.
11. In order to appreciate the contentions raised on behalf of the appellant, observations in para 20 in Y. Narasimha Rao and Ors. v. Y. Venkata Lakshmi Rao and Anr. (supra), may be beneficially reproduced:
�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.�
12. Admittedly, in the present case, the stage of recognition of judgment and decree passed by a foreign Court is yet to be reached, since the matter is pending adjudication before the Court in State of Michigan, USA. It may be preposterous to assume that the foreign Court may be wrongly exercising the jurisdiction and the judgment may not satisfy the rigours of Section 13 of the Code of Civil Procedure, 1908. Both the parties appear to be residing in USA of their own volition and the proceedings cannot be stayed merely on the ground that appellant had not submitted to jurisdiction of foreign Court despite the same being forum conveniens, as appellant had been residing there for a long period since 2010. The parties shall be having due opportunity to admit or deny the grant of divorce before the Court at the State of Michigan, USA in terms of the applicable law and procedure.
13. In this regard, reference may also be made to Dinesh Kumar Thakur v. Sonal Thakur (supra), wherein the point for consideration was whether in the facts and circumstances of the said case the appellant husband is entitled to the decree of anti-suit injunction against the wife. The marriage between appellant husband and respondent wife therein was solemnized as per Hindu rites and ceremonies on 20.02.1995. Both the parties thereafter had shifted to USA and had acquired the US citizenship along with PIO and OCI status in 2003/2006 respectively. The appellant husband preferred proceedings under 13/26 HMA, 1955 at Gurgaon while the wife had initiated proceedings in a Court in Florida, USA on the grounds of irretrievable breakdown of marriage and other reliefs. A contention was raised therein on behalf of the appellant husband that a decree of divorce sought on grounds of irretrievable breakdown of marriage is not a ground for divorce under the HMA. Also, it was pleaded that respondent wife along with minor children is residing in India since 2003.
It was held by the Hon�ble Supreme Court that the contention that respondent wife has filed a petition for divorce in USA on the ground of irretrievable breakdown of marriage, which is not provided under the Hindu Marriage Act, 1955, does not mean that there is likelihood of her being succeeding in getting a decree of divorce. The parties will produce evidence with regard to the question whether their marriage is governed by the Act or any other law before the Circuit Court, Florida. Also, the foreign Court cannot be presumed to be exercising its jurisdiction wrongly even after the appellant being able to prove that the parties continue to be governed by the law governing Hindus in India.
14. Learned counsel for appellant has next contended that the forum of choice is a forum non conveniens for appellant. Further, the parties are governed by HMA, 1955 and being permanent residents/citizens of India are subject to jurisdiction of the Courts in India. It is also submitted that proceedings had been initiated firstly by the appellant at Delhi.
15. It may be noticed that in considerable number of matrimonial disputes relating to non-resident Indians or wherein the parties shift residence to foreign jurisdiction and are governed by HMA, 1955, there is a trend of invoking jurisdiction of foreign Courts by one of the parties, while the other party may prefer to invoke the jurisdiction of Indian Courts. It is well settled that the Courts in India have a power to issue anti-suit injunction to a party over whom the Court has personal jurisdiction in an appropriate case. However, this power is to be exercised sparingly having regard to the rule of comity, since the effect of anti-suit injunction though directed against a person, interferes with the exercise of jurisdiction of another Court. The cases of injunction are governed by the doctrine of equity and one of the tests adopted in such cases for issuance of anti-suit injunction is whether the foreign proceedings are �oppressive or vexatious� and if the grant of anti-suit injunction is necessary in the interest of justice.
16. The principles governing grant of an anti-suit injunction by a Court of natural jurisdiction against a party to a suit before it restraining him from instituting and/or prosecuting the suit between the same parties, if instituted in a foreign Court of choice of the parties have been settled in Modi Entertainment Network and Another v. W.S.G. Cricket Pte. Ltd. (supra). The relevant observations in para 24 may be aptly reproduced for reference:
�24.�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 agreed 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 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 of 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 the non-exclusive jurisdiction of the court of their choice which cannot be treated just as 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.
(7) The burden of establishing that the forum of 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.�
17. Reverting back to the facts of the present case, it may be noticed that appellant is a resident of USA much prior to the marriage and also the child from the wedlock was born in USA. It is undisputed that both the parties are presently residing in USA and, as such, apparently the forum conveniens for both the parties appears to be USA. The appellant in the proceedings initiated in the Court at the State of Michigan, USA shall have an opportunity to contest in case the irretrievable breakdown of marriage cannot be considered as ground of divorce under HMA, 1955 as already observed above. We are of the opinion that the rights and liabilities of the parties including custody of minor child can be effectively also determined in the proceedings initiated by respondent at the State of Michigan, USA. There does not appear to be any convincing reason to infer that appellant husband will suffer grave injustice if the anti-suit injunction restraining the respondent wife from pursuing the divorce proceedings initiated by her at the State of Michigan, USA is not granted.
18. We further notice that Soundur Gopal v. Soundur Rajini (supra), relied by the learned counsel for appellant is distinguishable. The marriage between the appellant husband and respondent wife therein took place at Bangalore in accordance with Hindu rites and ceremonies and parties were blessed with two children. The couple shifted to Stockholm, Sweden in December, 1993 and was granted Swedish citizenship in 1997. The couple lived in India between 1997 and 1999 and later on shifted to Australia as the appellant husband was offered a job in Sydney. The second child was born in 2001 in Sydney. As the appellant husband lost his job, they shifted back to Stockholm till October, 2002. Later on, respondent got another job at Sydney and was joined by the respondent and children. Thereafter, the wife and children came back to India whereas the appellant husband stayed back in Sydney. A petition was filed by the wife under Section 10 of HMA, 1955 and for custody of children in India.
The husband challenged the maintainability of the petition at Family Court, Mumbai claiming that originally they were citizens of India but had acquired Swedish citizenship and were subsequently domiciled in Australia. As such, it was contended that parties by accepting citizenship of Sweden are deemed to have given up their domicile of origin i.e. India and acquired domicile of choice by the combination of residence and intention of permanent or indefinite residence.
In the aforesaid background, it was held by the Hon�ble Supreme Court in para 35 and 36 as under:-
�35.�The right to change the domicile of birth is available to any person not legally dependent and such a person can acquire domicile of choice. It is done by residing in the country of choice with intention of continuing to reside there indefinitely. Unless proved, there is presumption against the change of domicile. Therefore, the person who alleges it has to prove that. Intention is always lodged in the mind, which can be inferred from any act, event or circumstance in the life of such person. Residence, for a long period, is an evidence of such an intention so also the change of nationality.
36.�In the aforesaid background, when we consider the husband’s claim of being a domicile of Australia, we find no material to endorse this plea. The residential tenancy agreement is only for 18 months which cannot be termed for a long period. Admittedly, the husband or for that matter, the wife and the children have not acquired the Australian citizenship. In the absence thereof, it is difficult to accept that they intended to reside permanently in Australia. The claim that the husband desired to permanently reside in Australia, in the face of the material available, can only be termed as a dream. It does not establish his intention to reside there permanently. The husband has admitted that his visa was nothing but a �long-term permit� and �not a domicile document�. Not only this, there is no whisper at all as to how and in what manner the husband had abandoned the domicile of origin. In the face of it, we find it difficult to accept the case of the husband that he is domiciled in Australia and he shall continue to be the domicile of origin i.e. India. In view of our answer that the husband is a domicile of India, the question that the wife shall follow the domicile of the husband is rendered academic. For all these reasons, we are of the opinion that both the husband and the wife are domiciles of India and, hence, shall be covered by the provisions of the Hindu Marriage Act, 1955. As on fact, we have found that both the husband and the wife are domicile of India, and the Act will apply to them, other contentions raised on behalf of the parties are rendered academic and we refrain ourselves to answer those.�
The proposition of law as laid down by the Hon�ble Supreme Court in Soundur Gopal v. Soundur Rajini does not in any manner further the case for grant of anti-suit injunction in the present case, since the appellant husband has been also residing in USA since 2010 and the stay in India for short periods appears to be transitory.
19. The principle of law in relation to anti-suit injunctions as also referred in Essel Sports (P) Ltd. v. Board of Control for Cricket in India, (supra) relied upon by learned counsel for the appellant, is not disputed but the facts and circumstances of the present case are clearly distinguishable since both the parties are residing at USA and the Court at the State of Michigan is the forum conveniens for both the parties.
20. The case of the respondent in fact, is squarely covered by Dinesh Kumar Thakur v. Sonal Thakur (supra) relied on behalf of the respondent, which has already been referred to above. The same is also supported by Naina Surat Rawat v. Mukul Goyal (supra) relied on behalf of the respondent, wherein the learned Single Judge of this Court declined to grant anti-suit injunction to plaintiff against the divorce petition filed by the defendant husband against the plaintiff/applicant therein, at the Family Court, East London, on the ground that presence of the applicant at London was essentially willful of her own accord and since she was being provided accommodation and stay by �Refuge� at London under the aegis of Indian High Commission. As such, it could not be contended by the plaintiff that it would be inconvenient for her to attend the proceedings in the London Court.
21. Appellant has further placed reliance on order passed by the learned Single Judge in Damini Manchanda v. Avinash Bhambhani on July 08, 2022 (supra), wherein an application was preferred on behalf of the plaintiff therein for restraining the defendant from proceeding with the divorce petition filed by him before the Superior Court of Justice, Ontario, Toronto, Canada.
Parties therein got married on December 21, 2002 and two children were born out of the wedlock. Both the parties left for Canada along with their children on April 23, 2018 and started residing there. The case of the plaintiff therein was that she had filed the divorce petition on December 16, 2020 before the Family Court at Delhi when the defendant was living in India and since she had filed the divorce petition first, the proceedings initiated by the defendant before the Court in Canada need to be stayed. It was also contended that the defendant deliberately evaded service in the matter pending before the Family Court and had maliciously instituted the suit in Canada. It was also submitted that the plaintiff being an Indian Citizen cannot be compelled to defend herself before the Court in Canada.
The learned Single Judge granted an interim injunction against the defendant observing that balance of convenience was in favour of the plaintiff and further the multiplicity of divorce proceedings before the courts in India and Canada could result in conflicting decisions. Reliance was also placed upon Madhavendra L. Bhatnagar�v.�Bhavna Lall (supra) and Modi Entertainment Network v. WSG Cricket Pte. Ltd. (supra).
It is pertinent to note that the suit which was initially filed before learned Single Judge of this Court appears to have been transferred to the Principal Judge, Family Courts, Saket, Delhi vide order dated December 05, 2022 and the applications preferred by the plaintiff under Order XXXIX Rule 1 & 2 CPC and under Order XXXIX Rule 2A CPC were finally dismissed by the Family Court.
The Appellant thereafter preferred an appeal against the order of the Family Court titled as �Damini Manchanda v. Avinash Bhambhani�, MAT.APP.(F.C.) 365/2023 which was decided by this Court on December 19, 2023. This Court distinguished the judgment in Madhavendra L Bhatnagar v. Bhavna Lall (supra) as relied by the appellant/plaintiff and the observations in paragraphs 28 to 30 may be beneficially reproduced:
�28. In so far as the judgment in the case of Madhavendra L Bhatnagar (supra) is concerned, the Supreme Court was dealing with an appeal against the judgment of the High Court of Madhya Pradesh affirming the order of the Trial Court rejecting an application for granting interim anti suit injunction order under Order XXXIX Rule 2 CPC. In the said case, the wife resorted to proceedings for divorce before the Superior Court of Arizona in USA. It was the case of the husband that the wife never resided in Arizona, USA. A child was born to the couple in California. The plea of lack of jurisdiction was raised before the Superior Court of Arizona. It appears that the Court in Arizona had made it clear that it would not take into account the laws applicable to Hindu marriages for dissolution of marriage. The appellant apprehending some drastic order is likely to be passed by the Court in Arizona at the instance of the wife, resorted to proceedings for divorce as well as the custody of the minor child in question before the Court at Bhopal in the state of Madhya Pradesh. During the pendency of the said suit for declaration and for direction to hand over the custody of the minor child, an application was moved by the appellant before the Trial Court which was rejected on the ground that the Court in Arizona was outside India and not subordinate to the Court in Bhopal.
29. When the matter was taken to High Court by the appellant it was of the view that Courts in India could adjudicate the controversy between the parties only after the Court in Arizona passes an order in MAT.APP.(F.C.) 365/2023 Page 18 the pending proceedings. The Supreme Court, in appeal, was of the view that same was not the purpose for which the ex parte ad-interim relief was sought by the appellant. It was held that the order needs to
be set aside and interim relief as prayed for in the application filed before the
Court at Bhopal needs to be granted, including restraining the respondent-wife from proceeding with the suit instituted by her in Superior Court of Arizona or from filing any other proceeding including interim applications in any proceedings thereof, till the Court in Bhopal passes an order.
30. Having noted the judgments on which much reliance has been placed by Ms. Singh, we are of the view that the Trial Court was justified in distinguishing the judgment in the case of Madhavendra L Bhatnagar (supra) in paragraph 14 of the impugned order inasmuch as the matter in that case was at the stage of ex parte interim injunction. But in the case in hand, the respondent had already put in his appearance through his counsel and contested the application under Order XXXIX Rule 1 and 2 CPC. The Trial Court has also observed that in Madhavendra L Bhatnagar (supra), the divorce petition was filed in a county where neither the husband nor the wife had resided. But in the case in hand, the appellant was not only residing in Canada, but the respondent had also filed a divorce petition there. Both the parties live in Canada. Even at present, the appellant permanently resides in Canada. At the time of filing the suit and also the divorce petition in India, the appellant was residing in Canada. We find that the basis for the Trial Court to dismiss the application seeking the anti-suit injunction is also primarily on the ground of forum conveniens.�
In view of above, the final order passed by this Court on December 19, 2023 in MAT.APP.(F.C.) 365/2023 does not, in any manner, further the case of the appellant in the present case.
22. We are of the considered view that in the facts and circumstances, the proceeding initiated by the respondent wife in USA is neither vexatious or oppressive, nor the appellant would suffer grave injustice, if the anti-suit injunction is not granted. For the foregoing reasons, we are not inclined to interfere with the impugned order. The appeal is accordingly dismissed. No order as to costs. Pending applications, if any, also stand disposed of.
(ANOOP KUMAR MENDIRATTA)
JUDGE
(V. KAMESWAR RAO)
JUDGE
JANUARY 03, 2024/R/sd
MAT.APP.(F.C.) 358/2023 Page 1 of 16