Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: January 21, 2014
% Judgment Delivered on: March 12, 2014
+ RFA(OS) 12/2014
PONTY SINGH ..... Appellant
Represented by: Ms.Geeta Luthra, Sr.Advocate
instructed by Mr.Sanjeev Sahay and
Ms.Megha Katari, Advocates
versus
ANU SINGH BHATIA ..... Respondent
Represented by: Mr.A.S.Chandhiok, Sr.Advocate
instructed by Mr.P.Banerjee,
Ms.Princy and Ms.Harleen Singh,
Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J.
1. Vide impugned order dated January 06, 2014 the learned Single
Judge has dismissed CS (OS) 820/2012 opining it to be infructuous for the
reason in the suit filed by the appellant, in which his wife was a defendant,
prayer made was to restrain the wife from initiating any proceedings against
the appellant in Singapore. Before summons in the anti suit injunction filed
by the appellant was served upon the respondent she had already initiated
divorce proceedings in a Court at Singapore and had obtained a Mareva
injunction freezing bank accounts of the appellant. The learned Single Judge
noted that in spite of said fact being in the knowledge of the appellant he did
not bother to amend the plaint to pray that his wife be restrained from
RFA(OS) 12/2014 Page 1 of 15
continuing with the divorce proceedings she had initiated in Singapore. The
learned Single Judge has also noted the contentions of the respondent that
in the plaint instituted in India the relief prayed for was on the principle
invoking Forum non- convenience i.e. that Courts in India would be the
proper and convenient Forum to resolve the dispute between the parties and
Courts at Singapore would be a Forum of inconvenience, and that on said
ground appellant had moved the Court at Singapore and thus the Court in
India should not decide said issue. But we find no conclusive finding
returned by the learned Single Judge with reference to said argument. Of
course, the learned Single Judge has taken the view that whether or not the
Court at Singapore was the proper and convenient Forum had to be decided
by the Court at Singapore because appellant had submitted to the jurisdiction
of the Court at Singapore. The impugned judgment would reveal that
backdrop facts with contentions advanced have been noted till paragraph 15
of the impugned decision and the reason for dismissing the suit is in paras 16
to 18 of the impugned decision which read as under:-
“16. After giving my thoughtful consideration to the entire
submissions made from both the sides I have come to the
conclusion that not only the plaintiff is not entitled to any
interim relief but even his suit itself is liable to be dismissed
as being infructuous. As noticed already, when the suit was
filed the plaintiff had claimed only the relief that the
defendant should be restrained from initiating any legal
proceedings against him in Singapore or any other foreign
country for the dissolution of their marriage. However, after
the institution of the suit the plaintiff claimed to have come to
know that the defendant had already initiated proceedings
against him in a Singapore Court for the dissolution of their
marriage and also for maintenance and the Singapore Court
had also issued a Mareva injunction freezing all his bank
accounts. Though, in the plaint the plaintiff had pleaded that
in case any legal proceedings are instituted by the defendant
RFA(OS) 12/2014 Page 2 of 15
against him he would seek amendment in the plaint and claim
appropriate relief in respect of those proceedings but the
plaintiff did not seek any amendment of the plaint.
Undisputedly, after having come to know about the initiation
of divorce proceedings in Singapore by the defendant he had
approached that Court for vacation of the Mareva injunction
as also for stay of the divorce proceedings by taking shelter
under the principle of forum non-conveniens. That step taken
by the plaintiff shows that he was no more interested in
getting relief from this Court in respect of the proceedings
initiated by his wife in Singapore. It was rightly contended by
the learned Senior counsel for the defendant that after having
approached the Singapore Court before the filing of the
second stay application in the present suit he should now
await the decision of the Singapore Court on his prayer for
stay of those proceedings on the principle of forum non-
conveniens. The plaintiff in these circumstances had
disentitled himself to get any relief in the present suit in
respect of the proceedings initiated against him by his wife in
Singapore Court. This suit is certainly now an infructuous
suit and considering the fact that the plaintiff himself has
chosen not to seek even amendment in the plaint for claiming
the relief of injunction against the defendant restraining her
from continuing with the proceedings in the Singapore Court
the suit cannot be continued by this Court even in view of the
provisions of Order VII Rule 7 CPC relied upon by the
learned senior counsel for the plaintiff.
17. I am also of the view that learned senior counsel for the
defendant was right in placing reliance on a judgment of the
Hon’ble Supreme Court in “Shipping Corporation of India
Ltd. vs. Machado Brothers and Others” (2004) 11 SCC 168
wherein the Supreme Court held that Courts should not
continue to deal with infructuous litigation.
18. I, therefore dismiss the suit itself as having become
infructuous and the two stay application also stand dismissed
with the dismissal of the suit and the stay applications the
interim order passed in the matter stand vacated. However the
proceedings already initiated against the plaintiff for
contempt of court would continue and only in respect of those
RFA(OS) 12/2014 Page 3 of 15
th
proceedings the matter shall be placed before the Court on 16
January, 2014. ”
2. The relevant facts would be that appellant and respondent were
married at New Delhi as per Sikh rites and customs on December 20, 1999.
At that time appellant was residing in London. After marriage the
respondent also moved to the United Kingdom where the two resided as
husband and wife till the year 2005 when both, on obtaining permanent
residence in the United Kingdom, acquired British citizenship on or around
November 2005. Baby Zoya was born as a British citizen to them. In
August 2005 appellant got a job at Hongkong and after a few months the
respondent with the baby joined the appellant at Hongkong where the two
resided till when in or around April 2008 the appellant along with his wife
and child moved to Singapore; holding a permanent resident card. A
second child baby Anaya Singh was born as a British citizen in June 2008.
Since April 2008 the family lived in Singapore.
3. On February 04, 2012, by a return ticket booked by the appellant with
the date of return being March 16, 2012, the respondent and her children
came to New Delhi along with the appellant. Whereas the respondent and
the children returned to Singapore on March 16, 2012, the appellant
continued to reside at Delhi and on March 27, 2012; making a brief visit in
between to Singapore and he instituted the suit pleading that he and the
respondent were married as per the Sikh rites and customs at New Delhi on
December 20, 1999. He pleaded that two children named Zoya and Ananya
Singh were born. He pleaded that the parties had taken British citizenship
and had moved to Hongkong and then to Singapore. He pleaded that the
respondent had become alcoholic and was cruel towards him. He pleaded
that on March 14, 2012 he had sought divorce on grounds of cruelty from his
RFA(OS) 12/2014 Page 4 of 15
wife. He pleaded that Courts in India could grant him the decree because the
parties were married in Delhi; and we need to highlight that the appellant
did not plead in the suit that he had invoked jurisdiction of the Court at
Delhi to annulled their marriage on the basis of domicile. He pleaded that to
amicably resolve the disputes the parties came to India on February 04, 2012
but could not resolve their disputes and thus the appellant had to file the
petition seeking divorce. The appellant pleaded that he apprehended that the
respondent would initiate proceedings in Singapore. After pleading as
aforesaid till para 21 of the plaint, in paras 22 and 25 appellant pleaded as
under:-
“22. Plaintiff vacated his house in Singapore and came to
Delhi with the intention to stay in Delhi. The defendant was
aware of the said fact that the plaintiff has already vacated the
premises at Singapore and had leased it to a third party and is
in the process of shifting to Delhi. The plaintiff has now learnt
that despite the knowledge of the said facts and the pendency of
the Divorce Petition the defendant has deliberately left for
Singapore. The plaintiff apprehends that the defendant will
initiate proceedings for dissolution of marriage in Singapore.
The defendant has threatened to initiate proceedings in
Singapore on 25.03.2012. In view of these threats, plaintiff is
constrained to file the present suit inter-alia praying that
defendant be restrained from initiating any proceedings in
Singapore in relation to their marriage, maintenance, alimony
or any other country as the plaintiff and the defendant are
governed by the Hindu Marriage Act, 1955 in which there are
provisions for all matrimonial reliefs.
23. After the filing of the Divorce Petition on 14.3.2012, the
plaintiff called the defendant at Singapore from India and tried
to again resolve the disputes. Plaintiff requested the defendant
to come back to India with the children so that the disputes can
be amicably resolved. Plaintiff assured the defendant that he
will look after her and the children’s financial needs, even
though the defendant is already having sufficient financial
RFA(OS) 12/2014 Page 5 of 15
means. In fact plaintiff has always looked after the children’s
financial needs or requirements. Despite all these requests and
entreaties the defendant has threatened to initiate the
proceedings in Singapore and has refused to come to India.
Defendant does not have any permanent place to reside in
Singapore and has now shifted to a rented accommodation.
24. If any proceedings are initiated by the defendant in
Singapore or elsewhere the same will not be conclusive and
binding on Indian Courts and the Indian Legal System in view
of Section 13 of the CPC which is reproduced here;
“13. When foreign judgment not conclusive.
A foreign judgment shall be conclusive as to any
matter thereby directly adjudicated upon between
the same parties or between parties under whom
they or any of them claim litigating under the same
title except –
(a) where it has not been pronounced by a
Court of competent jurisdiction;’
(b) where it has not been given on the merits of
the case;
(c) where it appears on the face of the
proceedings to be founded on an incorrect view of
the international law or a refusal to recognize the
law of India in cases in which such law is
applicable;
(d) where the proceedings in which the
judgment was obtained are proposed to natural
justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a
breach of any law in force in India.”
RFA(OS) 12/2014 Page 6 of 15
The law with regard to Anti Suit Injunction has been well laid
down by the Hon’ble Supreme Court in AIR 2003 SC 1177
Modi Rubber Entertainment Network Vs. WSF Cricket Pvt.
Ltd., the relevant portion of para 24 is reproduced
hereinbelow:-
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 vexations 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
RFA(OS) 12/2014 Page 7 of 15
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 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
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,
RFA(OS) 12/2014 Page 8 of 15
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.
25. A bare reading of the said judgment reflects that it is
applicable on all four corners to the facts and circumstances of
the present case. Hence the plaintiff is entitled for the relief of
anti-suit injunction as India is the forum of convenience and
appropriate legal and territorial jurisdiction.”
4. From a perusal of the plaint it is apparent that the fulcrum of the claim
was the pleadings in paragraph 24 i.e. that divorce if any obtained by the
respondent in Singapore will not be conclusive and binding on Indian
Courts. Secondly, the anti suit injunction claim would be maintainable on
the principles of Forum non-conveniens as declared by the Supreme Court in
Modi Rubber Entertainment Network case (supra).
5. After the suit had been filed by the appellant, unknown to her, since
she was yet to be served with summons in the suit, respondent sued for
divorce in Singapore and on March 30, 2012 obtained a Mareva injunction
in her favour pertaining to bank accounts of the appellant and on April 10,
2012 the appellant filed an application in the Court at Singapore pleading :-
“ That the divorce action and any other proceedings
commence by the plaintiff for ancillary relief under Divorce
Suit No.1364 of 2012/V, Summons No.5048 of 2012/Q and
MSS 1566 of 2012 be stayed on the ground of Forum non-
conveniens;”
6. It needs to be highlighted that appellant did not challenge the
jurisdiction of the Court at Singapore to entertain respondent’s petition
RFA(OS) 12/2014 Page 9 of 15
seeking decree for divorce on the ground that since parties were not
domiciled in Singapore the Court at Singapore had no territorial jurisdiction
to entertain the claim predicated on the personal matrimonial laws of the
parties.
7. Arguing the appeal, learned Senior Counsel for the appellant argued
that domicile is a mixed question of law and fact as observed by the
Supreme Court in the decision reported as 2013 (7) SCC 426 Sunder Gopal
vs.Sunder Rajni . It was argued that notwithstanding parties acquiring
citizenship in United Kingdom, their movement first to Hongkong and then
to Singapore was occasioned by the job requirement of the appellant.
Appellant’s intention not to lose domicile of origin i.e. India where he was
born is evidenced by the fact that in the last four years he visited India 32
times and had been residing in India since February 2012. His permanent
ancestral home was in India. It was urged that domicile by choice could be
acquired not alone by the fact of fixed habitation in another country but as a
matter of intention. With respect to the argument that the appellant had
submitted to the jurisdiction of the Court at Singapore, it was urged that
merely by filing a reply to question the jurisdiction of a Court, as held in the
decision reported as 1991 (3) SCC 451 Y.Narashima Rao vs.
Venkatalakshmi it cannot be said that he had consented to the jurisdiction of
the Court concerned.
8. The provisions of Order 12 Rule 7 of the Singapore Rules are as
under:-
“7. (1) A defendant who wishes to dispute the
jurisdiction of the Court in the proceedings by reason of any
such irregularity as is mentioned in Rule 6 or on any other
ground shall enter an appearance and within the time
limited for serving a defence apply to the Court for –
RFA(OS) 12/2014 Page 10 of 15
(a) an order setting aside the writ or service of the writ
on him;
(b) an order declaring that the writ has not been duly
served on him;
(c) the discharge of any order giving leave to serve the
writ on him out of the jurisdiction;
(d) the discharge of any order extending the validity of
the writ for the purpose of service;
(e) the protection or release of any property of the
defendant seized or threatened with seizure in the
proceeding;
(f) the discharge of any order made to prevent any
dealing with any property of the defendant;
(g) a declaration that in the circumstances of the case the
Court has no jurisdiction over the defendant in respect of
the subject matter of the claim or the relief or remedy sought
in the action; or
(h) such other relief as may be appropriate.
(2) A defendant who wishes to contend that the Court
should not assume jurisdiction over the action on the ground
that Singapore is not the proper forum for the dispute shall
enter an appearance and, within the time limited for serving
defence, apply to Court for an order staying the proceedings.
(3) An application under paragraph (1) or (2) must be
made by summons supported by an affidavit verifying the
facts on which the application is based and a copy of the
affidavit must be served with the summons.
(4) Upon the hearing of an application under paragraph
(1) or (2), the Court may take such order as it thinks fit and
may give such directions for its disposal as may be
appropriate, including directions for the trial thereof as a
RFA(OS) 12/2014 Page 11 of 15
preliminary issue.
(5) A defendant who makes an application under
paragraph (1) shall not be treated as having submitted to the
jurisdiction of the Court by reason of his having entered an
appearance and if the Court makes no order on the
application or dismisses it, paragraph (6) shall apply as if
the defendant had not made any such application.
(6) Except where the defendant makes an application in
accordance with paragraph (1), the appearance by a
defendant shall, unless the appearance is withdrawn by
leave of the Court under Order 21, Rule 1, be treated as a
submission by the defendant to the jurisdiction of the Court
in the proceedings.”
9. A perusal of sub-Rule (1) and sub-Rule (2) would reveal that if
jurisdiction of the Court has to be questioned, the application has to be filed
by invoking sub-Rule (1) and where the defendant wishes to contend that the
Court should not assume jurisdiction over the action on the ground that
Singapore is not the proper Forum for dispute, an application has to be
made to the Court for an orders staying the proceedings.
10. Concededly, in the application filed by the appellant before the Court
at Singapore he has invoked sub-Rule (2) and not sub-Rule (1). As noted
hereinabove, appellant has prayed for the proceedings for divorce initiated
by the respondent to be stayed on the grounds of Forum non-convenience.
The appellant has not whispered a word that Courts at Singapore do not have
any jurisdiction.
11. A perusal of appellant’s claim in the suit before the learned Single
Judge would reveal that the fulcrum of the Anti Suit injunction prayed for is
that Courts at Singapore would not be the proper Forum of convenience. The
copious extracts of law declared by the Supreme Court in Modi Rubber
RFA(OS) 12/2014 Page 12 of 15
Entertainment Network case (supra) in the plaint which we have extracted
hereinabove are also indicative of the fact that injunction sought for by the
appellant before the learned Single Judge was premised on the plea that the
Forum at Singapore would be inconvenient for the parties. The appellant
did not plead that parties domicile was not in Singapore.
12. We do not wish to burden ourselves with the law on the subject of
domicile. It is true that domicile of origin, domicile by operation of law and
domicile by choice are distinct and that domicile of origin prevails until
not only another domicile is acquired but it must manifest intention of
abandoning the domicile of domicile; but there must be pleadings to said
effect. As was observed in the decision reported as (1868) LR 1 Sc. & Dly.
307 (at 322) Bell Vs. Kennedy , domicile is a mixed question of law and fact
and there is perhaps no chapter in the law that has from such extensive
discussion received less satisfactory settlement. There is no doubt
attributable to the nature of the subject, including as it does, inquiry into the
animus of persons who have either died without leaving any clear record of
their intentions, but allowing them to be collected by inference from acts
often equivocal; or who, being alive and interested, have a natural tendency
to their bygone feelings a tone and colour suggested by their present
inclination. We reiterate. Appellant’s case for Anti Suit injunction is
premised on the principle of Forum non-convenience. The appellant has
moved for stay of proceedings initiated by the respondent in Singapore not
by challenging the jurisdiction of the Court at Singapore under sub-Rule (1)
of Order 7 of the Singapore Court Rules but by pleading Forum non-
convenience and hence a stay of proceedings by invoking sub-Rule (2) of
Order 7 of the Singapore Court Rules.
13. The learned Single Judge has correctly opined that having submitted
RFA(OS) 12/2014 Page 13 of 15
to the jurisdiction of the Court at Singapore the appellant must await
decision of his application filed in the Court of Singapore.
14. Before bringing the curtains down we cannot but overlook the fact
that prima facie the appellant has tricked his wife and has made false
pleadings in the suit filed by him. His plea that the parties voluntarily
returned to India so that in India they could find a solution to their
matrimonial problems is false for the reason the parties came to India from
Singapore on a return ticket. Whereas the wife with her children spent some
time with her parents in India, the appellant use the time to fly back to
Singapore and surreptitiously surrender possession of the matrimonial home
in Singapore. Learned Counsel for the appellant could not explain as to why
the parties with their children came to India with a return ticket to
Singapore, if appellant’s plea was that the family returned to India
permanently with the hope that in India, probably with the intervention of
relatives and friends, they could amicably resolve their disputes in India.
The purchase of a return ticket cannot be overlooked. It assumes importance
to note that as the respondent and the children, using the return ticket flew
back to Singapore, the appellant played his cards by filing a petition for
divorce on March 16, 2012, though the date typed in the petition is February
13, 2012. The appellant who had got drafted the petition seeking divorce
on cruelty waited till his wife and children returned to Singapore. To the
horror of the respondent as she reached Singapore on March 16, 2012 and
proceeded to her matrimonial house she found that possession had been
surrendered and somebody else was living there. She relied that she was
tricked into coming to India and she took recourse to proceedings in the
Court at Singapore. The pleadings of the appellant in para 22 of the suit that
the house was vacated in Singapore because parties intended to stay in
RFA(OS) 12/2014 Page 14 of 15
Delhi, is ex facie false because the same fails to explain as to why parties
came to Delhi from Singapore on a return ticket.
15. Since the appellant has not questioned the jurisdiction of the Courts at
Singapore on any plea of domicile, we refrain from going in the issue. We
reiterate. Appellant has invoked the principle of Forum non-convenience.
He has submitted to the jurisdiction of the Court at Singapore and has
pleaded that divorce proceedings initiated by his wife should be stayed on
the principle of Forum non-convenience. As per Rules of the Court in
Singapore, having submitted to the jurisdiction of the Court at Singapore, the
appellant has no option but to litigate on the plea of Forum convenience at
Singapore.
16. The appeal is dismissed for the reasons mentioned above.
17. Parties shall bear their own costs.
(PRADEEP NANDRAJOG)
JUDGE
(JAYANT NATH)
JUDGE
MARCH 12, 2014
Mamta/skb
RFA(OS) 12/2014 Page 15 of 15
Judgment Reserved on: January 21, 2014
% Judgment Delivered on: March 12, 2014
+ RFA(OS) 12/2014
PONTY SINGH ..... Appellant
Represented by: Ms.Geeta Luthra, Sr.Advocate
instructed by Mr.Sanjeev Sahay and
Ms.Megha Katari, Advocates
versus
ANU SINGH BHATIA ..... Respondent
Represented by: Mr.A.S.Chandhiok, Sr.Advocate
instructed by Mr.P.Banerjee,
Ms.Princy and Ms.Harleen Singh,
Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J.
1. Vide impugned order dated January 06, 2014 the learned Single
Judge has dismissed CS (OS) 820/2012 opining it to be infructuous for the
reason in the suit filed by the appellant, in which his wife was a defendant,
prayer made was to restrain the wife from initiating any proceedings against
the appellant in Singapore. Before summons in the anti suit injunction filed
by the appellant was served upon the respondent she had already initiated
divorce proceedings in a Court at Singapore and had obtained a Mareva
injunction freezing bank accounts of the appellant. The learned Single Judge
noted that in spite of said fact being in the knowledge of the appellant he did
not bother to amend the plaint to pray that his wife be restrained from
RFA(OS) 12/2014 Page 1 of 15
continuing with the divorce proceedings she had initiated in Singapore. The
learned Single Judge has also noted the contentions of the respondent that
in the plaint instituted in India the relief prayed for was on the principle
invoking Forum non- convenience i.e. that Courts in India would be the
proper and convenient Forum to resolve the dispute between the parties and
Courts at Singapore would be a Forum of inconvenience, and that on said
ground appellant had moved the Court at Singapore and thus the Court in
India should not decide said issue. But we find no conclusive finding
returned by the learned Single Judge with reference to said argument. Of
course, the learned Single Judge has taken the view that whether or not the
Court at Singapore was the proper and convenient Forum had to be decided
by the Court at Singapore because appellant had submitted to the jurisdiction
of the Court at Singapore. The impugned judgment would reveal that
backdrop facts with contentions advanced have been noted till paragraph 15
of the impugned decision and the reason for dismissing the suit is in paras 16
to 18 of the impugned decision which read as under:-
“16. After giving my thoughtful consideration to the entire
submissions made from both the sides I have come to the
conclusion that not only the plaintiff is not entitled to any
interim relief but even his suit itself is liable to be dismissed
as being infructuous. As noticed already, when the suit was
filed the plaintiff had claimed only the relief that the
defendant should be restrained from initiating any legal
proceedings against him in Singapore or any other foreign
country for the dissolution of their marriage. However, after
the institution of the suit the plaintiff claimed to have come to
know that the defendant had already initiated proceedings
against him in a Singapore Court for the dissolution of their
marriage and also for maintenance and the Singapore Court
had also issued a Mareva injunction freezing all his bank
accounts. Though, in the plaint the plaintiff had pleaded that
in case any legal proceedings are instituted by the defendant
RFA(OS) 12/2014 Page 2 of 15
against him he would seek amendment in the plaint and claim
appropriate relief in respect of those proceedings but the
plaintiff did not seek any amendment of the plaint.
Undisputedly, after having come to know about the initiation
of divorce proceedings in Singapore by the defendant he had
approached that Court for vacation of the Mareva injunction
as also for stay of the divorce proceedings by taking shelter
under the principle of forum non-conveniens. That step taken
by the plaintiff shows that he was no more interested in
getting relief from this Court in respect of the proceedings
initiated by his wife in Singapore. It was rightly contended by
the learned Senior counsel for the defendant that after having
approached the Singapore Court before the filing of the
second stay application in the present suit he should now
await the decision of the Singapore Court on his prayer for
stay of those proceedings on the principle of forum non-
conveniens. The plaintiff in these circumstances had
disentitled himself to get any relief in the present suit in
respect of the proceedings initiated against him by his wife in
Singapore Court. This suit is certainly now an infructuous
suit and considering the fact that the plaintiff himself has
chosen not to seek even amendment in the plaint for claiming
the relief of injunction against the defendant restraining her
from continuing with the proceedings in the Singapore Court
the suit cannot be continued by this Court even in view of the
provisions of Order VII Rule 7 CPC relied upon by the
learned senior counsel for the plaintiff.
17. I am also of the view that learned senior counsel for the
defendant was right in placing reliance on a judgment of the
Hon’ble Supreme Court in “Shipping Corporation of India
Ltd. vs. Machado Brothers and Others” (2004) 11 SCC 168
wherein the Supreme Court held that Courts should not
continue to deal with infructuous litigation.
18. I, therefore dismiss the suit itself as having become
infructuous and the two stay application also stand dismissed
with the dismissal of the suit and the stay applications the
interim order passed in the matter stand vacated. However the
proceedings already initiated against the plaintiff for
contempt of court would continue and only in respect of those
RFA(OS) 12/2014 Page 3 of 15
th
proceedings the matter shall be placed before the Court on 16
January, 2014. ”
2. The relevant facts would be that appellant and respondent were
married at New Delhi as per Sikh rites and customs on December 20, 1999.
At that time appellant was residing in London. After marriage the
respondent also moved to the United Kingdom where the two resided as
husband and wife till the year 2005 when both, on obtaining permanent
residence in the United Kingdom, acquired British citizenship on or around
November 2005. Baby Zoya was born as a British citizen to them. In
August 2005 appellant got a job at Hongkong and after a few months the
respondent with the baby joined the appellant at Hongkong where the two
resided till when in or around April 2008 the appellant along with his wife
and child moved to Singapore; holding a permanent resident card. A
second child baby Anaya Singh was born as a British citizen in June 2008.
Since April 2008 the family lived in Singapore.
3. On February 04, 2012, by a return ticket booked by the appellant with
the date of return being March 16, 2012, the respondent and her children
came to New Delhi along with the appellant. Whereas the respondent and
the children returned to Singapore on March 16, 2012, the appellant
continued to reside at Delhi and on March 27, 2012; making a brief visit in
between to Singapore and he instituted the suit pleading that he and the
respondent were married as per the Sikh rites and customs at New Delhi on
December 20, 1999. He pleaded that two children named Zoya and Ananya
Singh were born. He pleaded that the parties had taken British citizenship
and had moved to Hongkong and then to Singapore. He pleaded that the
respondent had become alcoholic and was cruel towards him. He pleaded
that on March 14, 2012 he had sought divorce on grounds of cruelty from his
RFA(OS) 12/2014 Page 4 of 15
wife. He pleaded that Courts in India could grant him the decree because the
parties were married in Delhi; and we need to highlight that the appellant
did not plead in the suit that he had invoked jurisdiction of the Court at
Delhi to annulled their marriage on the basis of domicile. He pleaded that to
amicably resolve the disputes the parties came to India on February 04, 2012
but could not resolve their disputes and thus the appellant had to file the
petition seeking divorce. The appellant pleaded that he apprehended that the
respondent would initiate proceedings in Singapore. After pleading as
aforesaid till para 21 of the plaint, in paras 22 and 25 appellant pleaded as
under:-
“22. Plaintiff vacated his house in Singapore and came to
Delhi with the intention to stay in Delhi. The defendant was
aware of the said fact that the plaintiff has already vacated the
premises at Singapore and had leased it to a third party and is
in the process of shifting to Delhi. The plaintiff has now learnt
that despite the knowledge of the said facts and the pendency of
the Divorce Petition the defendant has deliberately left for
Singapore. The plaintiff apprehends that the defendant will
initiate proceedings for dissolution of marriage in Singapore.
The defendant has threatened to initiate proceedings in
Singapore on 25.03.2012. In view of these threats, plaintiff is
constrained to file the present suit inter-alia praying that
defendant be restrained from initiating any proceedings in
Singapore in relation to their marriage, maintenance, alimony
or any other country as the plaintiff and the defendant are
governed by the Hindu Marriage Act, 1955 in which there are
provisions for all matrimonial reliefs.
23. After the filing of the Divorce Petition on 14.3.2012, the
plaintiff called the defendant at Singapore from India and tried
to again resolve the disputes. Plaintiff requested the defendant
to come back to India with the children so that the disputes can
be amicably resolved. Plaintiff assured the defendant that he
will look after her and the children’s financial needs, even
though the defendant is already having sufficient financial
RFA(OS) 12/2014 Page 5 of 15
means. In fact plaintiff has always looked after the children’s
financial needs or requirements. Despite all these requests and
entreaties the defendant has threatened to initiate the
proceedings in Singapore and has refused to come to India.
Defendant does not have any permanent place to reside in
Singapore and has now shifted to a rented accommodation.
24. If any proceedings are initiated by the defendant in
Singapore or elsewhere the same will not be conclusive and
binding on Indian Courts and the Indian Legal System in view
of Section 13 of the CPC which is reproduced here;
“13. When foreign judgment not conclusive.
A foreign judgment shall be conclusive as to any
matter thereby directly adjudicated upon between
the same parties or between parties under whom
they or any of them claim litigating under the same
title except –
(a) where it has not been pronounced by a
Court of competent jurisdiction;’
(b) where it has not been given on the merits of
the case;
(c) where it appears on the face of the
proceedings to be founded on an incorrect view of
the international law or a refusal to recognize the
law of India in cases in which such law is
applicable;
(d) where the proceedings in which the
judgment was obtained are proposed to natural
justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a
breach of any law in force in India.”
RFA(OS) 12/2014 Page 6 of 15
The law with regard to Anti Suit Injunction has been well laid
down by the Hon’ble Supreme Court in AIR 2003 SC 1177
Modi Rubber Entertainment Network Vs. WSF Cricket Pvt.
Ltd., the relevant portion of para 24 is reproduced
hereinbelow:-
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 vexations 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
RFA(OS) 12/2014 Page 7 of 15
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 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
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,
RFA(OS) 12/2014 Page 8 of 15
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.
25. A bare reading of the said judgment reflects that it is
applicable on all four corners to the facts and circumstances of
the present case. Hence the plaintiff is entitled for the relief of
anti-suit injunction as India is the forum of convenience and
appropriate legal and territorial jurisdiction.”
4. From a perusal of the plaint it is apparent that the fulcrum of the claim
was the pleadings in paragraph 24 i.e. that divorce if any obtained by the
respondent in Singapore will not be conclusive and binding on Indian
Courts. Secondly, the anti suit injunction claim would be maintainable on
the principles of Forum non-conveniens as declared by the Supreme Court in
Modi Rubber Entertainment Network case (supra).
5. After the suit had been filed by the appellant, unknown to her, since
she was yet to be served with summons in the suit, respondent sued for
divorce in Singapore and on March 30, 2012 obtained a Mareva injunction
in her favour pertaining to bank accounts of the appellant and on April 10,
2012 the appellant filed an application in the Court at Singapore pleading :-
“ That the divorce action and any other proceedings
commence by the plaintiff for ancillary relief under Divorce
Suit No.1364 of 2012/V, Summons No.5048 of 2012/Q and
MSS 1566 of 2012 be stayed on the ground of Forum non-
conveniens;”
6. It needs to be highlighted that appellant did not challenge the
jurisdiction of the Court at Singapore to entertain respondent’s petition
RFA(OS) 12/2014 Page 9 of 15
seeking decree for divorce on the ground that since parties were not
domiciled in Singapore the Court at Singapore had no territorial jurisdiction
to entertain the claim predicated on the personal matrimonial laws of the
parties.
7. Arguing the appeal, learned Senior Counsel for the appellant argued
that domicile is a mixed question of law and fact as observed by the
Supreme Court in the decision reported as 2013 (7) SCC 426 Sunder Gopal
vs.Sunder Rajni . It was argued that notwithstanding parties acquiring
citizenship in United Kingdom, their movement first to Hongkong and then
to Singapore was occasioned by the job requirement of the appellant.
Appellant’s intention not to lose domicile of origin i.e. India where he was
born is evidenced by the fact that in the last four years he visited India 32
times and had been residing in India since February 2012. His permanent
ancestral home was in India. It was urged that domicile by choice could be
acquired not alone by the fact of fixed habitation in another country but as a
matter of intention. With respect to the argument that the appellant had
submitted to the jurisdiction of the Court at Singapore, it was urged that
merely by filing a reply to question the jurisdiction of a Court, as held in the
decision reported as 1991 (3) SCC 451 Y.Narashima Rao vs.
Venkatalakshmi it cannot be said that he had consented to the jurisdiction of
the Court concerned.
8. The provisions of Order 12 Rule 7 of the Singapore Rules are as
under:-
“7. (1) A defendant who wishes to dispute the
jurisdiction of the Court in the proceedings by reason of any
such irregularity as is mentioned in Rule 6 or on any other
ground shall enter an appearance and within the time
limited for serving a defence apply to the Court for –
RFA(OS) 12/2014 Page 10 of 15
(a) an order setting aside the writ or service of the writ
on him;
(b) an order declaring that the writ has not been duly
served on him;
(c) the discharge of any order giving leave to serve the
writ on him out of the jurisdiction;
(d) the discharge of any order extending the validity of
the writ for the purpose of service;
(e) the protection or release of any property of the
defendant seized or threatened with seizure in the
proceeding;
(f) the discharge of any order made to prevent any
dealing with any property of the defendant;
(g) a declaration that in the circumstances of the case the
Court has no jurisdiction over the defendant in respect of
the subject matter of the claim or the relief or remedy sought
in the action; or
(h) such other relief as may be appropriate.
(2) A defendant who wishes to contend that the Court
should not assume jurisdiction over the action on the ground
that Singapore is not the proper forum for the dispute shall
enter an appearance and, within the time limited for serving
defence, apply to Court for an order staying the proceedings.
(3) An application under paragraph (1) or (2) must be
made by summons supported by an affidavit verifying the
facts on which the application is based and a copy of the
affidavit must be served with the summons.
(4) Upon the hearing of an application under paragraph
(1) or (2), the Court may take such order as it thinks fit and
may give such directions for its disposal as may be
appropriate, including directions for the trial thereof as a
RFA(OS) 12/2014 Page 11 of 15
preliminary issue.
(5) A defendant who makes an application under
paragraph (1) shall not be treated as having submitted to the
jurisdiction of the Court by reason of his having entered an
appearance and if the Court makes no order on the
application or dismisses it, paragraph (6) shall apply as if
the defendant had not made any such application.
(6) Except where the defendant makes an application in
accordance with paragraph (1), the appearance by a
defendant shall, unless the appearance is withdrawn by
leave of the Court under Order 21, Rule 1, be treated as a
submission by the defendant to the jurisdiction of the Court
in the proceedings.”
9. A perusal of sub-Rule (1) and sub-Rule (2) would reveal that if
jurisdiction of the Court has to be questioned, the application has to be filed
by invoking sub-Rule (1) and where the defendant wishes to contend that the
Court should not assume jurisdiction over the action on the ground that
Singapore is not the proper Forum for dispute, an application has to be
made to the Court for an orders staying the proceedings.
10. Concededly, in the application filed by the appellant before the Court
at Singapore he has invoked sub-Rule (2) and not sub-Rule (1). As noted
hereinabove, appellant has prayed for the proceedings for divorce initiated
by the respondent to be stayed on the grounds of Forum non-convenience.
The appellant has not whispered a word that Courts at Singapore do not have
any jurisdiction.
11. A perusal of appellant’s claim in the suit before the learned Single
Judge would reveal that the fulcrum of the Anti Suit injunction prayed for is
that Courts at Singapore would not be the proper Forum of convenience. The
copious extracts of law declared by the Supreme Court in Modi Rubber
RFA(OS) 12/2014 Page 12 of 15
Entertainment Network case (supra) in the plaint which we have extracted
hereinabove are also indicative of the fact that injunction sought for by the
appellant before the learned Single Judge was premised on the plea that the
Forum at Singapore would be inconvenient for the parties. The appellant
did not plead that parties domicile was not in Singapore.
12. We do not wish to burden ourselves with the law on the subject of
domicile. It is true that domicile of origin, domicile by operation of law and
domicile by choice are distinct and that domicile of origin prevails until
not only another domicile is acquired but it must manifest intention of
abandoning the domicile of domicile; but there must be pleadings to said
effect. As was observed in the decision reported as (1868) LR 1 Sc. & Dly.
307 (at 322) Bell Vs. Kennedy , domicile is a mixed question of law and fact
and there is perhaps no chapter in the law that has from such extensive
discussion received less satisfactory settlement. There is no doubt
attributable to the nature of the subject, including as it does, inquiry into the
animus of persons who have either died without leaving any clear record of
their intentions, but allowing them to be collected by inference from acts
often equivocal; or who, being alive and interested, have a natural tendency
to their bygone feelings a tone and colour suggested by their present
inclination. We reiterate. Appellant’s case for Anti Suit injunction is
premised on the principle of Forum non-convenience. The appellant has
moved for stay of proceedings initiated by the respondent in Singapore not
by challenging the jurisdiction of the Court at Singapore under sub-Rule (1)
of Order 7 of the Singapore Court Rules but by pleading Forum non-
convenience and hence a stay of proceedings by invoking sub-Rule (2) of
Order 7 of the Singapore Court Rules.
13. The learned Single Judge has correctly opined that having submitted
RFA(OS) 12/2014 Page 13 of 15
to the jurisdiction of the Court at Singapore the appellant must await
decision of his application filed in the Court of Singapore.
14. Before bringing the curtains down we cannot but overlook the fact
that prima facie the appellant has tricked his wife and has made false
pleadings in the suit filed by him. His plea that the parties voluntarily
returned to India so that in India they could find a solution to their
matrimonial problems is false for the reason the parties came to India from
Singapore on a return ticket. Whereas the wife with her children spent some
time with her parents in India, the appellant use the time to fly back to
Singapore and surreptitiously surrender possession of the matrimonial home
in Singapore. Learned Counsel for the appellant could not explain as to why
the parties with their children came to India with a return ticket to
Singapore, if appellant’s plea was that the family returned to India
permanently with the hope that in India, probably with the intervention of
relatives and friends, they could amicably resolve their disputes in India.
The purchase of a return ticket cannot be overlooked. It assumes importance
to note that as the respondent and the children, using the return ticket flew
back to Singapore, the appellant played his cards by filing a petition for
divorce on March 16, 2012, though the date typed in the petition is February
13, 2012. The appellant who had got drafted the petition seeking divorce
on cruelty waited till his wife and children returned to Singapore. To the
horror of the respondent as she reached Singapore on March 16, 2012 and
proceeded to her matrimonial house she found that possession had been
surrendered and somebody else was living there. She relied that she was
tricked into coming to India and she took recourse to proceedings in the
Court at Singapore. The pleadings of the appellant in para 22 of the suit that
the house was vacated in Singapore because parties intended to stay in
RFA(OS) 12/2014 Page 14 of 15
Delhi, is ex facie false because the same fails to explain as to why parties
came to Delhi from Singapore on a return ticket.
15. Since the appellant has not questioned the jurisdiction of the Courts at
Singapore on any plea of domicile, we refrain from going in the issue. We
reiterate. Appellant has invoked the principle of Forum non-convenience.
He has submitted to the jurisdiction of the Court at Singapore and has
pleaded that divorce proceedings initiated by his wife should be stayed on
the principle of Forum non-convenience. As per Rules of the Court in
Singapore, having submitted to the jurisdiction of the Court at Singapore, the
appellant has no option but to litigate on the plea of Forum convenience at
Singapore.
16. The appeal is dismissed for the reasons mentioned above.
17. Parties shall bear their own costs.
(PRADEEP NANDRAJOG)
JUDGE
(JAYANT NATH)
JUDGE
MARCH 12, 2014
Mamta/skb
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