Delhi High Court

Vibha Suri & Ors. vs Vikram Suri & Ors. on 23 February, 2010

Author: Manmohan Singh

.*             HIGH COURT OF DELHI : NEW DELHI

+          IA No. 10514/2008 in CS (OS) No. 1192/2008

     Vibha Suri and Ors.                           ... Plaintiffs
                     Through: Ms. Malvika Rajkotia with
                              Mr. Ranjay N., Adv.

                                 Versus

     Vikram Suri and Ors.                         ...Defendants
                     Through: Mr. Rajiv Nayyar, Sr. Adv. with
                              Ms. Meenakshi Arora and
                              Mr. M. Narayan, Advs. for D-1
                              Mr. Baldev Malik, Adv. for D- 2
                              to 3

Judgment decided on : February 23, 2010

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may                      No
   be allowed to see the judgment?

2. To be referred to Reporter or not?                             Yes

3. Whether the judgment should be reported                        Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The present application under consideration has been filed by

defendant No. 1 under Order VII Rule 11 of the Code of Civil

Procedure, 1908 (―CPC‖ for short) read with Sections 9 and 151 of the

CPC, Section 4 of the Hindu Marriage Act, 1955 and Section 5 of the

Hindu Minority and Guardianship Act, 1956 for rejection of the plaint.

2. The present suit has been filed by the plaintiff No. 1 praying

for the following reliefs :

a) Grant an anti suit injunction restraining the

defendant No. 1 from filing, instituting and

continuing, inter alia, any custody proceedings

against the Plaintiff in Dubai and from

prosecuting any such proceedings already filed;

b) Declare that the marriage contracted under

Islamic Law by the Defendant No. 1 is void by

virtue of its bigamous nature;

c) Declare that the children would not be subject to

the Islamic Law being from Hindu Marriage

solemnized and registered under Hindu Marriage

Act, 1955;

          d)      Declare that the mother is the guardian of the

                  children     under   the     Hindu   Minority   and

                  Guardianship Act, 1956.

3. The brief facts leading up to the filing of the present suit are

that the plaintiff No. 1 and defendant No. 1 were married at Lucknow on

11th March, 1996 and the marriage was registered at New Delhi on 3rd

November, 1998. The parties moved to Riyad, Saudi Arabia in 1998 and

then to Dubai in 2000. Two children were born of the wedlock, being

the minor plaintiff Nos. 2 and 3 herein.

4. By a letter dated 12th December, 2007 from the Indian

Embassy at Cairo (defendant No. 3 herein) addressed to plaintiff No. 1

at 11, RBI Road, New Hyderabad, Lucknow, Uttar Pradesh the plaintiff

No. 1's parents got to know that the husband of their daughter plaintiff

No. 1 i.e. defendant No. 1 had converted to Islam and married a lady by

the name of Wassima Khan and the letter enquired if the marriage of

plaintiff No. 1 with defendant No. 1 had been dissolved. By letter dated

15th January, 2008 plaintiff No. 1 informed defendant No. 3 that the

earlier marriage was subsisting as it had not been dissolved and that

defendant No. 1's subsequent marriage was bigamous and void.

Defendant No. 1 moved out of the matrimonial home on 1st February,

2008. However, on 20th February, 2008 both the parties negotiated an

amicable resolution/ settlement of the dispute and reduced the same into

writing. The said agreement contained clauses as to the division of the

matrimonial assets as well as visitation rights etc. by virtue of which

defendant No. 1 was allowed to visit the minor children on weekends.

The said agreement also contained a clause to the effect that if either

party violated any term thereof, the other party would have sole custody

of the children.

5. It is the plaintiff No. 1's averment that defendant No. 1

started displaying anger towards her and started taunting her etc. even in

the presence of the minor children who witnessed this scene every

weekend. Plaintiff No. 1, for the sake of her children, continued to be

patient with defendant No. 1 despite his unruly and abusive behaviour.

6. On 11th June, 2008, plaintiff No. 1 received an e-mail from

defendant No. 1 informing her that he had obtained an order from a

Court in Dubai restraining her from moving the minor children out of

Dubai. Apprehending that defendant No. 1 may file proceedings for

custody of the children in Dubai - and considering the fact that under

the Shariat law children must necessarily reside with the father if he so

desires - the plaintiff No. 1 filed the present proceedings as the filing of

any proceeding before the Dubai Court would be improper since the

same was forum non-conveniens and also since the parties would not be

governed by their personal law in Dubai but by the Shariat law. Further,

defendant No. 1 through the order of the Dubai Court has curtailed the

civil and personal liberties of the two minor children by restraining their

travel outside Dubai. Thus the present suit was filed before this Court.

7. Defendant No. 1 has raised preliminary objections to the

present suit by filing a written statement wherein the following has been

submitted :-

a) No action lies before the Civil Court as the remedies

sought by the plaintiffs are available under the Hindu

Marriage Act, 1955 and the Hindu Minority and

Guardianship Act, 1956 and as such, the present suit is

barred by law.

b) This Court has no territorial jurisdiction to entertain the

present suit, on reasons elucidated in paragraph 7 of the

written statement.

c) As per the agreement between the parties dated 20th

February, 2008, a total of US$ 19,25,000/- were to be

transferred in favour of the plaintiff No. 1 by defendant

No. 1. Out of this amount, assets and property worth

approximately Rs.10,50,00,000/- have already been

transferred in favour of plaintiff No. 1 and only the

amount of US$ 30,000 is left to be transferred.

d) When most of the money had been transacted, plaintiff

No. 1 began denying the defendant No. 1's visitation

rights as regards the children and tried to frustrate all

channels of communication between them.

e) Apprehending that plaintiff No. 1 might one day take the

children and exit Dubai, defendant No. 1 filed an

application in the Dubai Court praying that plaintiff Nos.

1 and 2 may not be taken outside Dubai. The said prayer

was granted.

8. Having perused the submissions contained in the written

statement, this Court makes a note of the fact that when an application

under Order VII Rule 11 of the CPC is under consideration, as per well

settled law it is only the averments contained in the plaint that are to be

seen and considered. (Mayar (H.K.) Ltd. v. Owners & Parties, Vessel

M.V. Fortune Express,(2006) 3 SCC 100, Manmohan Singh Chawla

Vs. Rajesh Berry & Anr., 2009 (3) AD (Delhi) 259)

9. In the application for rejection of plaint being I.A. No.

10514/2008, defendant No. 1 has contended that the reliefs prayed for

by the plaintiff No. 1 cannot be granted by way of the present civil suit

as the remedies available, if any, are under the Hindu Marriage Act,

1955 and the Hindu Minority and Guardianship Act, 1956 and the

instant civil suit is barred by law as per the provisions of Section 4 of

the Hindu Marriage Act, 1955 and Section 5 of the Hindu Minority and

Guardianship Act, 1956.

Section 4 of the Hindu Marriage Act, 1955 provides as

under :-

―Section 4. Overriding effect of Act.--Save as otherwise expressly provided in this Act,--

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.‖

Section 5 of the Hindu Minority and Guardianship Act, 1956

provides as under :-

―Section 5. Overriding effect of Act --Save as otherwise expressly provided in this Act,--

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act ;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect insofar as it is inconsistent with any of the provisions contained in this Act.‖

10. It is contended that plaintiff No. 1's relief of declaring

the marriage void is covered under the provisions of Section 5, Section

12 and Section 13 of the Hindu Marriage Act, 1955 as the allegations

contained in the plaint constitute grounds of divorce and therefore,

remedy is available only under the afore said sections of the said Act.

Further, the reliefs pertaining to guardianship of the children can only

be sought under the Hindu Minority and Guardianship Act, 1956 (under

Section 6 specifically) as Section 5 thereof bars the civil courts from

entertaining any such suit. It is settled law that when special rights are

created by a statute which provides for an enforcement machinery for

the same, the Civil Court's jurisdiction over such matters is barred.

Therefore, if a party to a marriage has grievances s/he ought to seek

remedy under the Hindu Marriage Act, 1955 only. Section 9 of the

Code of Civil Procedure, 1908 also bars the Civil Courts from trying

any suit the cognizance of which is either expressly or impliedly barred.

11. It has also been argued that this Court does not have the

territorial jurisdiction to adjudicate upon the present suit as the cause of

action has been alleged to have arisen in Dubai after defendant No. 1

started allegedly repudiating the agreement dated 20th February, 2008

and admittedly, no cause of action has arisen within this Court's

jurisdiction and further, none of the parties are currently residing or

carrying on their business/ work for gain in Delhi.

12. It has also been submitted that applying the principle of

comity of courts and conflict of laws, it is the Dubai Courts which have

jurisdiction over the present matter as the parties have resided in Dubai

for the last more than 12 years . As per the doctrine of forum non-

conveneins, the present suit cannot lie in this Court as the plaintiff No.1

as well as defendant No. 1 both reside in and work for gain in Dubai.

Further, the Indian embassies at Cairo and Dubai have been impleaded

only to create jurisdiction of this Court as considering that the present

matter is a matrimonial one, these parties are not necessary parties. In

lieu of this argument it has also been submitted that the present suit fails

to disclose any cause of action.

13. In their reply to the application for rejection of plaint the

plaintiffs have submitted that firstly, while considering an application

under Order VII Rule 11 CPC only the averments in the plaint are to be

seen.

14. As regards the argument that this Court does not have

territorial jurisdiction over the present matter, it has been submitted that

the marriage of defendant No. 1 and plaintiff No. 1was registered in

Delhi and the plaintiff No. 2 was born in Delhi. Further, the Indian

Embassies at Cairo and Dubai are under the Ministry of Foreign Affairs

which is accountable for and in-charge of protection of the plaintiffs'

rights. The Ministry is in Delhi and therefore the Delhi Courts have

jurisdiction.

15. As regards the contention that the suit is barred under the

Hindu Marriage Act, 1955 the plaintiffs have submitted that no relief

under the Hindu Marriage Act, 1955 has been claimed in fact, no

matrimonial relief has been claimed at all and though Section 13 of the

said Act does provide grounds for divorce, plaintiff No. 1 has not sought

the decree of divorce. It has been clarified that the declaratory relief

claimed by the plaintiff No.1 is not for declaring her marriage to

defendant No. 1 void but for declaring that the marriage under Islamic

law of defendant No. 1 to Ms. Wassima Khan is void.

16. The plaintiffs have submitted that they had no remedy except

to file a suit before this Court to ensure that the minor children's rights

are not impinged by forcing them to submit to a personal law that is not

their own only for the reason that their father converted to another

religion as he wanted the said personal laws to be applicable to him.

17. Further, the present suit has been filed on behalf of plaintiff

Nos. 2 and 3 who are Indian citizens born out of a Hindu marriage

registered in Delhi and whose travel has been curtailed by defendant No.

1's misuse of the state machinery of an alien law and the State of India

in its capacity as parens patria has to ensure that its citizens are not

victimized under such alien laws. In this regard learned counsel for the

plaintiffs has referred to Gaurav Nagpal Vs. Sumedha Nagpal, AIR

2009 SC 557 wherein the court has stated repeatedly to drive the point

home that in a case where the custody or upbringing of a minor child is

concerned, the issue demanding the court's paramount consideration

would be the welfare of the minor child concerned.

18. It is also stated that the argument of this Court being forum

non-conveniens can only be taken up by defendant No. 1 after he has

filed his written statement and established why the Dubai courts are a

more convenient forum for him despite the fact that the said defendant

has admittedly signed an agreement acknowledging that Indian Law

shall govern the parties. The case of Dhannalal Vs. Kalawatibai & Ors.,

AIR 2002 SC 2572 has been referred, paragraph 23 whereof holds that in

case of conflict of jurisdiction, the choice ought to remain with the

plaintiff to choose the most convenient forum as the plaintiff is the

dominus litis i.e. master of, or having dominion over, the suit.

19. During the course of hearing, counsel for the plaintiffs

argued that the fundamental right of plaintiff Nos.2 and 3 to reside and

travel wherever they desire can only be asserted in an Indian Court since

the law in Dubai is governed by the Shariat alone. The declaration

sought that plaintiff No. 1 is the natural guardian of the plaintiff Nos. 2

and 3 can only be made by a Civil Court as there is no separate

machinery under the Hindu Minority and Guardianship Act for such a

declaration.

20. A suit such as the present one can only be entertained by a

Civil Court and is not covered by any special law. Further, plaintiff No.

1 has not sought the decree of divorce and defendant No. 1 cannot, by

astute drafting pleadings and arguments compel the said relief to be

made out when the same has not even been sought. Defendant No. 1

plainly wants to take advantage of his bigamous wrong by divorcing

plaintiff No. 1 and the latter has no inclination of allowing the former to

reap benefits of his immoral conduct.

21. Another contention put forth by counsel for the plaintiffs is

that prayer (a) which is the relief of an anti-suit injunction cannot be

granted under either the Hindu Marriage Act, 1955 or the Hindu

Minority and Guardianship Act, 1956. Only a civil court can grant such

an injunction in the interest of justice and equity.

22. Counsel for the plaintiffs has also referred to M.V. Elisabeth

& Ors. Vs. Harwan Investment & Trading Co. Pvt. Ltd., 1993 Supp (2)

SCC 433 wherein paragraph 64 states as under :

―64. .... Where substantive law demands justice for the party aggrieved, and the statute has not provided the remedy, it is the duty of the court to devise procedure by drawing analogy from other systems of law and practice. ....‖

23. In Dwarka Prasad Agarwal (Dead) By LRs & Anr. Vs.

Ramesh Chandra Agarwal & Ors., AIR 2003 SC 2696 the Court held

that the bar of jurisdiction of a civil court should not be readily inferred

and courts should normally lean in favour of construction upholding

retention of its jurisdiction.

24. It is argued by the learned counsel for the plaintiffs that the

question as to which law would be applicable to the present suit and that

Shariat law alone is applicable in Dubai etc. are all matters of trial and

the plaintiffs should not be non-suited at present under the application

under Order VII Rule 11 CPC.

25. Along with the main suit, an application for interim

injunction being I.A. No.7388/2008 was listed before this Court on 27th

June, 2008. At that date, the Court held as under :

―.....

I am of the view that though such power of anti-suit injunction should be exercised with care and caution as it involves the principle of comity of Court the instant case prima facie presents a situation that if some interim protection is not granted, till at least the return of notice, the reliefs as prayed in the suit will become infructuous.

In the circumstances, I am inclined to injunct defendant No. 1 from filing any legal proceedings against the plaintiff in the Courts at Dubai till the next date of hearing. .......‖

The said order has been in operation since 27th June, 2008.

26. In view of the facts and circumstances in the present matter

and without going into the rival submissions of the parties, the first and

foremost point before this Court is to see whether this Court has

territorial jurisdiction to adjudicate upon the present case and whether

jurisdiction of this Court can be invoked by the plaintiffs on the basis of

the cause of action as alleged. Let the present matter be examined on

the objection of territorial jurisdiction raised by the defendants.

27. The paragraph constituting the cause of action in the plaint is

reproduced below :

―24. That the cause of action accrued in favour of the plaintiff No.1 and against the defendant No.1 on 14 th January, 2008 when the plaintiff's parents received at their home in Lucknow a letter dated 12th December, 2007 addressed to the plaintiff by the Indian Embassy at Cairo i.e. defendant No.3 herein informing her of defendant No.1's second marriage after converting himself to Islam. The cause of action further accrued in favour of the plaintiff No.1 and against the defendant No.1 when on confronting him, he himself admitted the fact of conversion to Islam and the marriage under Islamic Law with such woman. The cause of action also further accrued when in spite of the deadline for closure of financial matters as per agreement dated 20th February, 2008, the defendant No.1 did not meet with the same after extending it several times and showed the offensive and uncooperative attitude. The cause of action further arose when during visitation time, the defendant No.1 started displaying anger towards plaintiff No.1, abused and taunted the plaintiff No.1 on her inability to have sustained her marriage with him and comparing her in demeaning terms with the second woman. The cause of action further arose when the defendant No.1 starting repudiating the agreement by falsely alleging that plaintiff was violating the agreement by denying proper access to the children. The cause of action further arose when the plaintiff asked the Consulate of Dubai i.e. defendant No.2 herein to do so moreover have attested the marriage certificate of defendant No.1 with Ms. Khan and in all likelihood issued a visa to Ms. Khan as a spouse despite being aware of defendant No.1's first marriage and having the plaintiff No.1' name on the defendants' passport under the section of ‗name of spouse'. Thereafter the cause of action accrued on 11th June, 2008, when the plaintiff No.1 received an e-mail from the defendant No.1 informing her that he had obtained an order from the Court in Dubai restraining her from removing the children from Dubai thereby reneging the Agreement. The cause of action is still continuing.‖

28. While determining as to what would constitute the cause of

action, the Supreme Court in the case of Om Prakash Shrivastava Vs.

Union of India, 2006 (6) SCC 207 observed in paras 12 and 13 as

under :-

―12. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh : [1977]2SCR250 ).

13. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In. Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra and Ors. :

AIR2000SC2966 ).‖ It is apparent that while examining the cause of action, the

Court ought to look at the factual situation that gives rise to an

enforceable claim.

29. As far as the next submission which has been argued in

favour of this court having jurisdiction i.e. that defendant Nos. 2 and 3

are part of the Government of India with their respective offices at

Delhi, in Kusum Ingots and Alloys Ltd. Vs. Union of India & Anr.,

AIR 2004 SC 2321 the Supreme Court overruled the decision in U.P.

Rashtriya Chini Mill Adhikari Parishad, Lucknow v. State of U.P. &

Ors., MANU/SC/0422/1995 and held that framing of a statute, statutory

rule or issue of an executive order or instruction would not confer

jurisdiction upon a court only because of the situs of the office of the

maker thereof. The mere existence of seat of Parliament or Executive

does not confer cause of action qua jurisdiction. Thus, situs of the

office of embassies does not give jurisdiction to this Court unless there

is a substantial cause of action or part of cause of action actually arisen

within the territory of this Court.

30. Admittedly, the plaintiff No. 1 and defendant No. 1 were

married at Lucknow in 1996 and after registration of the marriage in

Delhi in 1998, moved to Riyad in the same year and then to Dubai in

2000, where they have been residing since then. A letter was received by

the parents of plaintiff No. 1 informing them of defendant No. 1's

conversion to Islam and subsequent marriage to a Pakistani national, but

this letter was received by them at their residence in Lucknow.

31. The agreement recorded on 20th February, 2008 was agreed

upon in Dubai, as was the division of matrimonial assets and child

visitation rights etc.

32. After careful analysis of jurisdiction para, it can be inferred

that the parties are not carrying on business, residing or personally

working for gain within the territory of this Court. Further the parties

have been residents of Dubai undisputedly since the year 1998 after the

solemnisation of marriage at Lucknow.

33. Para 26 of the plaint states the details as regards territorial

jurisdiction. The same is reproduced as under:

―26. That this Hon'ble Court has the territorial

jurisdiction to try and dispose the suit by virtue of the fact that the marriage is registered at Delhi and the parties last resided in Delhi before leaving the country and the defendants No.2 and 3 are part of the Government of India with offices at Delhi.‖

34. None of the parties are residing or carrying on business or

working for gain in the jurisdiction of this Court. That the marriage of

the parties was registered in Delhi in 1998 and the parties resided in

Delhi before leaving the country do not in the least provide this Court

with jurisdiction to try the present matter.

35. The fact of the matter is that the marriage was not solemnized

in Delhi, that the parties have been residing in Dubai since 2000 and

there is no connection between the present suit and this Court's

territorial jurisdiction at all since no cause of action, partially or even in

a miniscule manner, has arisen in Delhi.

36. In a recent judgment titled Sholay Media Entetainment &

Anr. Vs. Yogesh Patel Ors., being CS (OS) 1714/2001 and decided on

27th January, 2010 this Court held as under :

―11. Undoubtedly, the Court has to see only the averments in a plaint, to decide whether the suit discloses a triable cause of action, and whether this Court has jurisdiction. The Supreme Court in Liverpool & London SP & I Asson. Ltd. v. MV Sea Success, (2004) 9 SCC 512, held that for the purposes of rejecting a plaint under Order 7 Rule 11 the Court should not only look at the averments in the plaint but also must look into documents filed along with, in view of Order 7 Rule 14. In Sopan Sukhdeo v. Assistant Commr., (2004) 3 SCC 137, the Court held that for the purposes of deciding an application under Order 7 Rule 11, the averments made in the plaint are germane and that the pleas taken by the defendant in the written statement would be irrelevant. Further, the Court also emphasized that a meaningful and not formal reading of the plaint was to be adopted so as to nip in the bud any clever drafting of the plaint.‖

37. In the case of ONGC Vs. Utpal Kumar Basu, (1994) 4 SCC

711, the Supreme Court held as under :

―12. It must be remembered that the image and prestige of a court depends on how the members of that institution conduct themselves. If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation.‖

38. The remedies sought in the present suit have been sought by

way of a civil suit. In such case, as regards the question of jurisdiction,

only the provisions contained in the Code of Civil Procedure, 1908

would be applicable. Sections 19 and 20 of the CPC would lay down the

parameters for determining whether the present suit lies within this

court's jurisdiction or not. Section 19 and Section 20 provide as

under:-

19. Suits for compensation for wrongs to person or movables.--Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

20. Other suits to be instituted where defendants reside or cause of action arises.--Subject to the

limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or