Jasmeet Kaur vs Navtej Singh

Manmohan, J

I.A. 3132/2017

Present application has been filed under Order VII Rule 10 CPC for rejection of the plaint, dismissal and return of the suit. However, at the outset,

learned counsel for the defendant confined his prayer for return of the plaint under Order VII Rule 10 CPC.

Mr. Anil Malhotra, learned counsel for defendant stated that the anti-suit injunction sought by the plaintiff-wife pertained to a suit/proceeding in

relation to guardianship and custody/access of two minor children which fell within the ambit and scope of Section 7(1) Explanations (d) and (g) of the

Family Courts Act, 1984.

He submitted that Section 7(1) Explanation (d) of the Family Courts Act, 1984 enumerates that ""a suit or proceeding for an order or injunction in

circumstances arising out of a marital relationship"", and Section 7(1) Explanation (g) states that, ""a suit or proceeding in relation to the guardianship of

the person or the custody of, or access to, any minor,"" shall fall within the jurisdiction of the Family Court. He stated that Section 8 of the Family

Courts Act, 1984, stipulates that no District Court shall ""exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the

Explanation"" of Section 7(1) of the Act. Hence, according to him, any suit or proceeding for an order or injunction in circumstances arising out of a

marital relationship or guardianship/custody shall lie only before the Family Court.

Mr. Malhotra further submitted that in view of the Division Bench judgment of this Court in Amina Bharatram Vs. Sumant Bharatram and Ors.,

CS(OS) 411/2010 dated 19th July, 2016 and the practice directions dated 23rd December, 2016, issued by the Registrar of this Court, any petition for

matrimonial cause under the Hindu Marriage Act (now, Family Courts Act) has to be filed in the District Court of competent jurisdiction.

Mr. Malhotra pointed out that in Minakshi Sahlot Vs. Gourav Choudhary, CS(OS) No.340/2016 dated 27th October, 2016, a Coordinate Bench of

this Court following Amina Bharatram (Supra) has held that in cases seeking anti-suit injunction arising/emanating from a matrimonial relationship

would have to be transferred to the Family Court.

Mr. Malhotra emphasised that in the case of Minakshi Sahlot (Supra) a Coordinate Bench had distinguished and clarified the earlier judgment of a

Coordinate Bench of this Court in Suraj Seth Vs. Ruchika Abbi, 2014 SCC OnLine Del.6999.

Per contra, Ms. Malavika Rajkotia, learned counsel for plaintiff-wife submitted that in case of Suraj Seth (Supra) a Coordinate Bench of this Court

has held that an anti-suit injunction filed by the defendant-wife against her plaintiff-husband seeking orders to restrain him from prosecuting a case

instituted by her in New York, USA, cannot be said to be a proceeding in relation to the guardianship of any person or the custody of, or access to any

minor. The relevant portion of the judgment in Suraj Seth (Supra) relied upon by the learned counsel for plaintiff-wife is reproduced herienbelow:-

...Anti suit injunction is claimed to debar the Defendant from prosecuting the proceedings before the Court in USA and thus, the instant

suit cannot be said to be to obtain an order of injunction arising out of a marital relationship. Similarly, the instant suit cannot be said to be

a proceeding in relation to the guardianship of any person or the custody of, or access to any minor....

Irrespective of the fact that whether the Plaintiff has any cause on merits or not it cannot be said that the suit is barred in view of

provisions of Section 7 of the Act.

She admitted that a similar issue had been raised in the case of Minakshi Sahlot (Supra), in which the anti-suit injunction had been directed to be

transferred to the Family Court. She, however, pointed out that in the said case the Division Bench in an appeal being FAO(OS) 329/2016 had made

the following observations vide its order dated 16th November, 2016:-

Prima facie, we are in agreement with the submissions made by the learned counsel for the appellant that the impugned judgment is

contrary to the decision of another Single Bench in the case of Suraj Singh (supra). It is well settled that a bench of a court is bound by a

decision of a co-ordinate Bench and, if it feels that there is contrary view possible, the only course open to it is to refer the matter to a

larger Bench. Unfortunately, this was not done in the present case. Therefore, we are staying the operation of the impugned judgment....

Ms. Rajkotia submitted that the practice direction issued by this Court dated 23rd December, 2016 under Section 7(1) of the Family Courts Act,

1984, did not cover anti-suit injunctions as they deal with more complex issues than family disputes. According to her, the idea of anti-suit injunction is

to streamline the process of litigation between the contesting parties and to oversee all the disputes amongst them.

She further submitted that as the Division Bench in the case of Minakshi Sahlot (Supra) had left open the question of law (i.e. whether the anti-suit

injunction filed in the matter arising out of a matrimonial relationship is barred under Section 7(1) of the Family Courts Act, 1984), the matter should be

referred to a Division Bench for an authoritative pronouncement.

In rejoinder, Mr. Malhotra stated that for the purposes of Section 7(1) Explanation (d) of the Family Courts Act, 1984, a suit or proceeding arising

out of a marital relationship and seeking an order/injunction/judgment/decree, ""in circumstances arising out of a marital relationship"", shall include an

anti-suit injunction, suit for declaration, permanent injunction and damages arising therefrom. He submitted that the Supreme Court in Modi

Entertainment Network & Anr., Vs. W.S.G. Cricket Pte. Ltd., AIR 2003 SC 1177 has held as under:-

.....The principles governing grant of injunction-an equitable relief-by a court will also govern grant of anti-suit injunction which is but a

species of injunction. When a court restrains a party to a suit/proceeding before it from instituting or prosecuting a case in another court

including a foreign court, it is called anti-suit injunction. It is a common ground 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. This is because Courts of equity exercise jurisdiction in

personam. However, having regard to the rule of comity, this power will be exercise sparingly because such an injunction though directed

against a person, in effect causes interference in the exercise of jurisdiction by another court.

(emphasis supplied)

Consequently, according to him, an anti-suit injunction is only a species of an injunction suit and the principles governing grant of an injunction by a

Court also govern grant of anti-suit injunction. Therefore, the phrase, ""anti-suit injunction"" has to be read as a part and parcel of the word injunction as

it belongs to the same class and substantively seeks similar relief under a different nomenclature. He pointed out that the Bombay High Court in

Sandip Shankarlal Kedia Vs. Pooja Kedia, 2013(3) ABR 1380 has held as under:-

....Courts would act in exercising their inherent powers in the interest of justice to grant injunctions. An anti-suit injunction application

would fall only under the inherent power of the Court and is consequently covered by precedent law.

Hence, according to him, the words ‘anti-suit injunction’ cannot be divorced from the word ‘injunction’, for a different connotation or

legal meaning, as by terminology, though, they may sound different, but, both of them are part of the same species and group.

Having heard learned counsel for the parties, this Court is of the view that the issue that arises for consideration in the present application is as to

whether the anti-suit injunction is covered by Section 7(1) of the Family Courts Act, 1984.

Ordinarily speaking, a civil suit, be it an injunction suit or an anti-suit injunction, arising out of cause of action of a civil nature, would be governed

by Section 9 CPC. In accordance with the said section, all injunctions/anti-suit injunctions of a civil nature, have to be tried by a Civil Court ""excepting

suits of which their cognizance is either expressly or impliedly barred.

In Dhulabhai Vs. State of M.P. (1968) 3 SCR 662, it has been held that the jurisdiction of the Civil Courts is all embracing except to the extent it is

excluded by an express provision of law or by clear intendment arising from such law. The ouster of the jurisdiction of a Civil Court is not to be lightly

inferred and can only be established if there is an express provision of law or is clearly implied. The Supreme Court further held that ouster can be

implied only when the right is created by the Statute and machinery for its enforcement is provided therein.

This Court in Rupali Lamba & Anr. Vs. Sukhwant Singh Lamba in IPA No. 28/2015 decided on 24th August, 2017 following Amina Bharatram

(Supra) has held that the jurisdiction to try and decide cases of causes listed under Sections 7 and 8 of the Family Courts Act, 1984 lies with the

Family Courts. The relevant portion of the judgment in Rupali Lamba (Supra) is reproduced hereinbelow:-

In the opinion of this Court, as the primary relief in the present petition is for maintenance under the Hindu Adoption and Maintenance

Act, 1956, the same is liable to be transferred to the Family Court in view of the Division Benchâ€s judgment of this Court in Amina

Bharatram (supra). The relevant portion of the said judgment is reproduced hereinbelow:-

“1. These proceedings emanate from an order of reference dated 09.06.2014 (“Reference Orderâ€) made by the Learned Single

Judge in CS(OS) No. 411/2010 (“Suitâ€​), formulating the following questions of law for adjudication by this Court:

“(i) Whether the High Court while exercising the Original Civil Jurisdiction is deemed to be a District Court within the meaning of Section

2(4) of CPC in the context of Section 7(1)(a) of the Family Courts Act, 1984?

(ii) Whether the original civil jurisdiction of the High Court excluded (sic) for any suit or petition by virtue of Sections 7 & 8 of the Family

Courts Act, 1984?â€​

xxxx xxxx xxxx xxxx

This Court agrees with the plaintiffâ€s submission that an earlier specific enactment would prevail over a subsequent legislation which

is general in nature - affirmed recently by the Supreme Court in Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1.

Both the Delhi High Court Act (Section 5) and the Family Courts Act (Section 20) contain non-obstante provisions. In Yakub Memonâ€s

case, the Court held that where two statutes provide non-obstante clauses, the principle that the later legislation would override the earlier

one is subject to the principle of “generaliaspecialibus non derogantâ€. A determination as to whether a statute is a general or a specific

one requires an examination of its subject matter and the purpose for which it was enacted. Plaintiff urges that the Delhi High Court Act,

1966 is a special enactment and therefore, it ought to prevail over the Family Courts Act, 1984. However, this Court is of the opinion that it

is the Family Courts Act, instead, which is specific in nature, as it seeks to constitute a special mechanism for adjudication of disputes of the

nature enumerated in Section 7 of the Act (details of the distinct nature of the procedure created under the Act have been discussed

above).On the other hand, the Delhi High Court merely provides for original civil jurisdiction of this Court based on a prescribed

pecuniary limit, which is applicable to all civil suits. The following observations of the Supreme Court in Abdul Jaleelâ€s case (supra)

support this Courtâ€​s conclusion that the Family Courts Act is specific in nature:

“The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure

speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement

of Object and Reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts the

matters relating to the property of the spouses or either of them…

XXX XXX XXX

The Family Court was set up for settlement of family disputes. The reason for enactment of the said Act was to set up a court which would

deal with disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings…â€​

xxxx xxxx xxxx xxxx

Learned counsel for the plaintiff had submitted that there is nothing to indicate that Family Courts in Delhi have been released from the

pecuniary jurisdiction limit. However, this Court is of the opinion that no such formal notification extending the Family Courts†pecuniary

jurisdiction is required. Once it has been held that “District Courtâ€​ includes the High Court exercising its original civil jurisdiction, and

in the absence of a bar limiting the pecuniary jurisdiction of Family Courts to any pecuniary limit, they would assume jurisdiction

exclusively regardless of pecuniary values.

xxxx xxxx xxxx xxxx

Therefore, the reference is answered as follows:

Point No.1: It is held that the Delhi High Court is a “district court†under Section 8 in respect of all matters enumerated in Explanation

to Section 7 (1) of the Act;

Point No.2: The Delhi High Court does not possess jurisdiction to entertain, try and decide cases and causes referred to in Sections 7 and 8

of the Family Courts Act.â€​

(emphasis supplied)

In pursuance to the said judgment, the Registry of this Court has issued a Practice Direction dated 23rd December, 2016. The said

Practice Direction is reproduced hereinbelow:-

“HIGH COURT OF DELHI AT NEW DELHI

No. 45/Rules/DHC Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Dated :

23.12.2016

PRACTICE DIRECTIONS

Honâ€ble the Chief Justice, on the recommendations of the Honâ€ble Judges of the Original Side, has been pleased to issue following

practice directions for information and compliance by all concerned :-

In view of the Judgment dated 19.07.2016 passed by the Honâ€ble Division Bench of this Court on reference in CS (OS) No. 411/2010 &

I.A. No. 12186/2010 titled “Amina Bharatram Vs. Sumant Bharatram and Othersâ€a, ll matters enumerated in Explanation to Sub-Section

(i) of Section 7 and Section 8 of the Family Courts Act, 1984 shall be exclusively triable by the Family Courts and the jurisdiction of the

High Court to the extent it exercises Ordinary Original Civil Jurisdiction in respect of such matters stands excluded by virtue of Section 8

(c)(ii) of the said Act. Such matters listed before this Court shall be transferred to the Family Courts by passing the necessary Orders in this

respect on their dates of listing.

The Registry, henceforth, is directed not to accept such matters as enumerated in Explanation to Sub Section (i) of Section 7 and Section

8 of the Family Courts Act, 1984.

These Practice Directions shall come into force with immediate effect.

By Order

Sd/-

(GIRISH KATHPALIA)

REGISTRAR GENERALâ€​

(emphasis supplied)

Keeping in view the aforesaid mandate of law as well as the Division Benchâ€s judgment in Amina Bharatram (supra) and the Practice

Direction No. 45/Rules/DHC dated 23rd December, 2016 issued by the Registrar General of this Court, present suit along with pending

applications is transferred to the Family Court. For the aforesaid purpose, parties are directed to appear before the Principal Judge (HQs),

Family Courts, Dwarka on 16th October, 2017, who in turn is directed to transfer the case to the appropriate Family Court.â€​

Consequently, though the adjudication of pure civil rights in an injunction/anti-suit injunction will be within the domain of civil Courts, yet petitions in

circumstances arising out of marital relationship or guardianship/custody for relief of injunction/anti-suit injunction shall lie before a Family Court in

accordance with Section 9 CPC read with Sections 7 and 8 of the Family Courts Act, 1984. Likewise, any anti-suit injunction in respect of any other

rights governed by special Statute and whose cognizance is specifically barred, shall not lie before this Court due to bar of jurisdiction contained in

Section 9 CPC.

In the present suit the following prayers have been sought:-

a) Pass a decree of Declaration in favour of the Plaintiff and against the Defendant declaring that custody appeal initiated by the

Defendant against the Plaintiff before the Superior Court at Stamford, Connecticut in USA titled as Navtej Singh v. Jasmeet Kaur and all

the judgments, order, decree, directions, etc. be declared as null, void and unenforceable.

b) Pass a decree of Declaration in favour of the Plaintiff and against the Defendant declaring that all the judgments, order, decree,

directions, etc. passed subsequent thereto by the Superior Court at Stamford, Connecticut or any other foreign court in the case titled as

Navtej Singh vs. Jasmeet Singh be declared as null and void.

c) Pass an order for injunction in favour of the Plaintiff and against the Defendant restraining the Defendant from continuing any legal

proceedings against the Plaintiff in the courts in United States of America in respect of custody of the two children.

d) Pass an order granting damages to the tune of Rs.200/-tentatively till the damages are decided by this Hon'ble Court without prejudice to

the rights and contentions of the Plaintiff; towards immense mental, psychological and emotional trauma caused by the Defendant to the

Plaintiff.

e) Pass an order of cost of litigation in favour of the Plaintiff.

Consequently, as the anti-suit injunction in the present case is, ""in circumstances arising out of a marital relationship"" and/or

guardianship/custody of any minor child, the jurisdiction of the civil Court is inherently and expressly barred by virtue of the provisions of Section 9

CPC read with Sections 7 and 8 of the Family Courts Act, 1984.

Further, in Minakshi Sahlot (Supra) a Coordinate Bench of this Court vide order dated 27th October, 2016 has categorically held that an anti-suit

injunction is squarely covered by Explanation (d) to Section 7 of the Family Courts Act, 1984. The relevant portion of the aforesaid order is

reproduced hereinbelow:-

A bare perusal of the above-quoted provision would show that the decision would require the expression “injunction in

circumstances arising out of a marital relationshipâ€​ to be construed.

The learned Single Judge while taking a different opinion in the facts and circumstances of the case in Suraj Seth (supra,) though

noting abovequoted provision of Section 7 of the Family Courts Act, proceeded to examine the question observing that what is referred to in

explanation (d) is “an injunction with regard to a marital relationshipâ€​. In the considered view of this court, this not being the language

of the statute, the view taken in Suraj Seth (supra) cannot be followed. What is explained in clause (d) is that the suit of which the

jurisdiction would now fall before the Family Court must be one, may be for injunction, in circumstances arising out of a marital

relationship.

In the given facts and circumstances, there can be no dispute about the fact that the case for divorce filed by the defendant and the case

seeking antisuit injunction filed before this court arises in circumstances emanating from a marital relationship. It is noted that the question

was not pressed in this light before the division bench in FAO (OS) 511/2014 which was taken out against the order of the learned Single

Judge in Suraj Seth (supra). All that was pressed or considered by the division bench was the sustainability of the action or its

maintainability in light of the prayers made in that case and not the issue as to whether the case would fall within the jurisdiction of the civil

court or of the Family Court. The decision of the High Court of Gujarat in Darshanaben (supra) is also distinguishable for the simple

reason that, in contrast to the case at hand, it involved various reliefs including the prime ones for partition of the properties of joint Hindu

family of the original defendants and for rendition of accounts.

In the view of this court, the case is squarely covered by clause (d) of explanation appended below Section 7 of the Family Courts Act,

1984...

The Coordinate Bench of this Court in Minakshi Sahlot (Supra) did not follow Suraj Seth (Supra) since the latter did not rely upon the language of

the statute ""injunction in circumstances arising out of a marital relationship"" and instead relied upon the expression ""an injunction with regard to a

marital relationship"".

To be fair, the Coordinate Bench that had decided Suraj Seth (Supra) did not have the benefit of the authoritative Division Bench judgment in

Amina Bharatram (Supra) interpreting Sections 7 and 8 of the Family Courts Act, 1984.

The appeal against the said decision being FAO(OS) 329/2016, Minakshi Sahlot Vs. Gourav Choudhary was disposed of by this Court as having

been rendered infructuous, leaving the question of law open. However, the order of the learned Single Judge dated 27th October, 2016 was neither

stayed, set aside, modified, varied or changed.

In the opinion of this Court, there is only one conclusive Division Bench judgment on the point interpreting Explanation (d) to Section 7 of the

Family Courts Act, 1984, and there is no other conflicting judgment on the point. Accordingly, the High Court cannot exercise original jurisdiction in

anti-suit injunctions, when the suit or proceedings under Sections 7/8 of the Family Courts Act, 1984, for grant of an injunction lies before the Family

Court.

This Court is also of the view that the Family Court is a one stop forum for all family litigations. This interpretation would ensure speedy disposal

and prevent conflict of judgments. In the opinion of this Court, it would be incongruous if a suit for maintenance or custody of minor children is

transferred to the District Court, while an anti-suit injunction filed by the same spouse seeking stay of maintenance and/or custody proceedings filed by

the other spouse in a foreign jurisdiction is heard and decided by this Court.

In view of the foregoing discussion, this Court is of the view that in the present case the Family Court and not the High Court is the appropriate

forum to adjudicate the relief of anti-suit injunction in accordance with Sections 7 and 8 of the Family Courts Act, 1984.

Keeping in view the aforesaid, the present suit along with pending applications is transferred to the Family Court. For the aforesaid purpose,

parties are directed to appear before the Principal Judge (HQs), Family Courts, Dwarka, on 4th January, 2018 who, in turn is directed to transfer the

case to the appropriate Family Court.