BOMBAY HIGH COURT REFUSES ANTI SUIT INJUNCTION IN DIVORCE PROCEEDINGS

In a significant judgement in the case of Milind Ashok Kalmakar v. Sheetal Milind Kalmakar [W.P. No. 3773 of 2021], Bombay High Court refused to grant anti suit injunction for restraining the wife from instituting matrimonial suit in a foreign court.

Background

Out of a discordant marital relationship, the husband filed divorce proceedings under the Hindu Marriage Act, 1955 before the Family Court of Mumbai. The husband and wife used to reside in Australia and were also granted Permanent Residence Visa there. Moreover, the wife had applied for Australian citizenship while the husband also expressed his desire to settle in Australia. A marital asset division suit was filed by the wife in the court of Australia for 50 percent share in the property.

In the same divorce petition, an application for anti-suit injunction was moved. The family court in Mumbai refused to grant an anti-suit injunction and the petitioner assailed the validity of that order in the present petition.

Analysis

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.

The Hon’ble Supreme Court in the case of Modi Entertainment Network v. W.S.G. Cricket PTE. Ltd [(2018) 17 SCC 12] has held that anti suit injunction is a specie of injunction which will be governed by the principles of equity. It was also held that the Indian Courts have the power to issue anti suit injunction against a party over whom it has personal jurisdiction however such power should be exercised sparingly because such injunction interferes in the exercise of jurisdiction by another court. Additionally, the party seeking injunction is expected to depict three factors i.e., (i) Prima Facie Case, (ii) Balance of Convenience and (iii) Irreparable Injury in its favour before the injunction can be granted.

The court after analysing the factual matrix concluded that the property of the husband was located in Australia, the parties have been residing in Australia and also intend to acquire citizenship therein apart from the fact that the present divorce petition had been filed by the husband on special power of Attorney as it was not possible for him to attend the proceedings since he resided out of India most of the times. These facts go on to show that the Balance of convenience lied in favour of the wife and there was nothing discernable from the facts to prove that the husband will suffer irreparable injury if the anti-suit injunction is refused. Thus, on these grounds the court refused to grant an anti-suit injunction.