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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