Ponty Singh vs Anu Singh Bhatia
2013 Latest Caselaw 2967 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%     I.A.No.5783/2012 (u/o 39 R. 1 & CPC), I.A. No.6736/12 (u/o
      39 R. 1 & 2 CPC), I.A. No.14564/2012 (u/o 39 R. 2A CPC) &
      I.A. No.16732/12 (u/o 39 R. 2A CPC)

                                     IN

                            CS(OS) 820/2012


+                                     Date of Decision: 15th July, 2013

#      PONTY SINGH                                  .....Plaintiff
!                 Through: Ms. Geeta Luthra, Senior Advocate
                           with Mr. Sanjeev Sahay and Mr.
                           Harish Malik, Advocates.

                                  versus

$     ANU SINGH BHATIA                         .....Defendant
                Through: Mr. A.S.Chandhiok, Senior Advocate
                         with Mr. P. Banerjee and Ms. Princy
                         Ponnan, Advocates

     CORAM:
*    HON'BLE MR. JUSTICE P.K.BHASIN

                                  ORDER

P.K. BHASIN, J.

This litigation is between husband and wife whose marriage solemnised way back in the year 1999 and from which wedlock they have been blessed with two children is now

completely been shattered and. in fact, appears to have irretrievably broken down. Both are now fighting fierce battles in India as well as in Singapore for divorce and maintenance of children etc.

2. The plaintiff and the defendant got married in December, 1999 at New Delhi as per Sikh rites and then they moved to London where they acquired British citizenship in 2007. They shifted to Hong Kong in the year 2005 and from there to Singapore in the year 2008 when he was transferred there by his employer in Hong Kong. Though from the wedlock two children were born and both of them are below the age of seven years but it appears that foreign soils proved to be a severe blow to their married life. According to the plaintiff his wife became alcoholic and also a chain smoker while as per the defendant- wife her husband had become alcoholic as well as other women's man including that of their domestic help. She also is alleging that her husband had started treating her with cruelty.

3. The plaintiff-husband now claims to have returned back to his own country to once again settle down here. The defendant- wife is still lured by foreign lifestyle and so she continues living in Singapore along with their two daughters. All the four family members are also having OCI Cards (Overseas Citizen of India

Cards).

4. On 14th March, 2012 the plaintiff-husband filed a divorce petition in Delhi in Saket District Courts against the defendant- wife(being HMA No. 252/2012) on the ground that his wife has been treating him with lot of cruelty, mental as well as physical. However, before the defendant-wife could be served with the notice of that petition the plaintiff-husband also filed the present suit on 26th March, 2012 as he was anticipating initiation of some legal proceedings against him for dissolution of their marriage in Singapore by his wife. In this suit the plaintiff has sought an injunction restraining his wife from initiating any legal proceedings against him in any country and particularly in Singapore.

5. When the suit was taken up for ex parte hearing on 27th March, 2012 this Court while directing issuance of summons in the suit for 17th July, 2012 passed the following order on the plaintiff's application under Order XXXIX Rules 1 & 2 C.P.C. (being I.A.No.5783/2012):

"I have heard learned counsel for the plaintiff. Counsel for the plaintiff very fairly admits that the plaintiff has no knowledge that any proceedings so far have been initiated by the defendant in any foreign Court. This court, therefore, does not find that there is any urgency to grant ex parte stay in favour of the pl at

this stage. However, as and when any such case is filed by the defendant before any foreign Court or before Singapore Court then the plaintiff may approach this Court to seek appropriate relief or direction."

6. Before the defendant could be formally served with the summons of the present suit for 17th July, 2012 the plaintiff moved another application under Order XXXIX Rules 1 & 2 C.P.C.(being I.A.No.6736/2012) on 11th April, 2012 in which it was alleged that the defendant had filed a divorce petition(being Divorce Suit No.1364/2012/V) in a Singapore Court after the filing of the divorce case by the plaintiff in Delhi and the plaintiff had been served notice of that case on 31st March, 2012 via e- mail. The plaintiff prayed for an ad interim injunction restraining his wife from proceeding further with that divorce petition filed in Singapore and also for prohibiting her from 'forum shopping'. That application was taken up for hearing on 16th April, 2012 when counsel for the defendant also appeared and sought time for filing of reply which was granted. On 3rd May, 2012 the following order was passed:

"I.A. No.6736/2012 Counsel appearing for both the parties submit that they themselves shall make all efforts to explore the possibility of bringing an amicable settlement between the parties and, therefore, they pray for adjournment of this matter till 17th July, 2012. Counsel also submit that without prejudice to the rights and contentions of the

respective parties they will not move ahead in the pending proceedings at Delhi as well as at Singapore till the next date.

List this matter on 17th July, 2012."

7. Then on 17th July, 2012 the following order was passed in the matter:

"I.A. No.6736/2012 (O. 39 R 1 & 2 CPC) Counsel for the parties state that despite efforts made by the parties they could not agree to settle their disputes.

List the matter on 26th September, 2012 for consideration of the stay application. In the meanwhile, the parties shall remain bound by their statement in terms of order dated 3rd May, 2012."

8. This order directing the parties to remain bound with their statements made before this Court on 3rd May, 2012 was challenged by the defendant in appeal before the Division Bench (being RFA (OS) 332/2012) which was disposed vide order dated 25th July, 2012 and the relevant part of that order passed after noticing the background of the case reads as under:

"FAO (OS) No.332/2012 & CM No.12580/2012 (Stay) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx "On 17.7.2012 the counsels for the parties informed the learned single Judge that no settlement had been possible. The learned single Judge listed the matter on 26.9.2012 for consideration of the stay application and directed that "in the meanwhile, the parties shall remain bound by their statement in terms of order

dated 3.5.2012". It is this order which is assailed in the present appeal.

We have set out the aforesaid facts to show that the learned single Judge had been accommodating to the parties and the matter had been adjourned to 17.7.2012 at the joint request of the parties to explore the possibility of a settlement. The matter would have to be attended to by the learned single Judge as per the exigency of the board and since the failure of settlement talks was recorded on that date, the learned single Judge fixed the date for hearing of the matter. The occasion to pass the order directing the parties to remain bound by their statements arose as the appellant was not willing to continue the statement qua the proceedings at Singapore as the counsel stated that he had no instructions.

We are informed that the counsel requested for a short date as the matter was being earlier taken up at short intervals but a longer date was given. The grievance made by learned senior counsel for the appellant is on the merits of the case, maintainability of the suit, etc., which are all matters, in our considered view, which require attention of the learned single Judge and for him to form an opinion which can then be subject to appeal. There is no such formation of the opinion as yet as the matter is pending consideration.

The urgency expressed by learned senior counsel for the appellant is that the proceedings at Singapore initiated by the appellant inter alia are for maintenance of the two (2) children born from the wedlock. The appellant and the children are still in Singapore while the respondent has shifted to India.

Learned senior counsel for the respondent states that the respondent will have no difficulty in taking care of the school fees and the medical expenses of the children but for that purpose the encompassing Mareva

injunction issued by the Singapore court would have to be modified.

We may note that since the Mareva injunction is issued by the Singapore court, such an order would have to be passed by the Singapore court and necessary prayer can be made by the parties before that Court and to that extent the order dated 17.7.2012 of the learned single Judge would not stand in the way of making this limited prayer without, in any manner, causing prejudice to the rights and contentions of the parties. We are not inclined to pass any other orders in the present appeal and the application as the learned single Judge has, as yet, not decided the interlocutory application.

The appeal and the application accordingly stand disposed of."

9. It may be noticed here that the defendant stands granted Mareva Injunction by the Singapore Court in the defendant's divorce petition vide order dated 30th March, 2012 freezing his worldwide assets.

10. On 9th August, 2012 the plaintiff filed I.A. No.14564/20012 under Order XXXIX Rule 2-A C.P.C. alleging disobedience of the order dated 17th July, 2012 passed in the present suit by the defendant after the disposal of her appeal by the Division Bench. It is alleged by the plaintiff that after passing of the order dated 17th July, 2012 in the present suit whereby she stood restrained from proceeding with her cases filed by her there and rejection of her appeal the defendant approached the Singapore Courts

dealing with her cases and requested the Courts to proceed further on merits. On 31st July, 2012 the defendant wife took the stand before the Divorce Court in Singapore during Pre Trial Conference (PTC) in the Chamber of the Judge that she was not prevented from moving forward in cases filed by her in Singapore and so she must proceed further. Similarly on 8th August, 2012 the defendant conveyed her decision to the Maintenance Court in Singapore that she intended to proceed with her maintenance case. These facts were pleaded by the plaintiff in I.A. No.14654/2012 and not denied by the defendant in her reply.

11. The defendant filed her reply to this contempt application and stated that she had not violated any order of this Court and as is also the usual stand taken by the litigants facing contempt charges she has also pleaded in her reply that she has the utmost regard and respect for this Court and "Without prejudice to the above, the defendant offers her unconditional apology for any unintended act on the part of the defendant." Regarding the plaintiff's allegation that she had violated this Court's order dated 17th July, 2012 by approaching the Courts in Singapore for issuance of summons to the plaintiff herein of her maintenance petition and restraining the plaintiff herein from proceeding

with the present suit her defence is that she did that in view of the fact that the Division Bench of this Court in her appeal against the order dated 17th July, 2012 had modified that order while disposing of that appeal and the parties were permitted to move the Court in Singapore which had issued Mareva injunction for modification of that order since the plaintiff- husband himself had offered to pay for the maintenance of their children which he could not do because of the Mareva injunction. It has further been pleaded in the reply that immediately after the disposal of her appeal the plaintiff herein backed out of the assurance given by him to the Division Bench of this Court on 25th July, 2012 by informing the defendant through his counsel's letter dated 7th August, 2012 (Annexure-A to the reply) that he had not undertaken before the Division Bench of this Court to pay for the school fees etc. of the children and in that way the plaintiff himself had committed contempt of this Court and so she was compelled and justified in proceeding with her cases in Singapore. Even Mr. A.S. Chandhiok, learned senior counsel for the defendant had submitted during the course of hearing that since the Division Bench of this Court itself had permitted the parties to approach the Court in Singapore in which divorce case was pending and in which matter Mareva injunction had been passed there was no

violation of any order of this Court committed by the defendant wife by filing any application/affidavit. Another plea taken in defence by the defendant is that the plaintiff is also guilty of suppression of material fact from this Court while moving second ad interim injunction application. That application was moved on 11th April, 2012 by the plaintiff allegedly after coming to know about the filing of the divorce case in Singapore by the defendant. But in that application he did not disclose that after having been served with notice of divorce case on 31st March, 2012 via e-mail and before filing the second stay application in the present suit he had approached Singapore Court and had sought a stay of proceedings there and vacation of Mareva injunction. Thus, according to the defendant the plaintiff attempted to get an injunction from this Court by concealing the said material fact and had in that way played fraud on this Court which also amounts to committing contempt of Court.

12. While the said contempt application was still pending the plaintiff moved another contempt application (being I.A. No.16732/2012) and notice of hat application was also issued to the defendant and she has filed reply to that application also. It was alleged in this second contempt application by the plaintiff- husband that the defendant-wife was continuing to violate this

Court's order dated 17th July, 2012. It was alleged that on 3rd September, 2012 she had again applied in her divorce petition, vide Annexure P-1 to I.A. No.16732/2012, and her own supporting affidavit dated 3rd September, 2012, Annexure P-2 to I.A. No. 16732/2012, for inclusion of a penal notice in the earlier Court order dated 30th March, 2012 and also for restraining the plaintiff herein from proceeding ahead with the present 'anti suit injunction' suit as well his divorce case.

13. The defendant in her reply to this second contempt application while not disputing the facts pleaded by the plaintiff has taken the same stand which was taken in her reply to the first application that she had taken those steps before Singapore Courts because her husband himself had committed breach of assurance given by him to the Division Bench of this Court on 25th July, 2012 that he shall maintain and take care of their children by flatly denying his obligation to do that after the appeal was disposed of.

14. In the present case both sides are alleging commission of contempt of Court against each other. Normally when serious disputes start between husband and wife it is said that time is the best healer but in the present case despite the fact that both husband and wife got sufficient time, after hearing in these two

applications of the husband-petitioner for ad interim injunctions and two for punishing his defendant-wife for her having committed contempt of this Court had concluded and today's date when these applications are being disposed of, to solve their differences, if not for their own sake at least for the sake of their two children whom both of them must be loving immensely, but unfortunately both husband and wife appear to be quite adamant in not patching up their differences or to save the future of their children which till the time they become major will remain dark and bereft of love and affection of their father as well as mother as both of them will remain busy most of the time in attending Court hearings.

15. From the replies filed by the defendant-wife to the two contempt applications it becomes clear she admits that after the disposal of her appeal by the Division Bench of this Court she had approached Singapore courts for proceeding ahead with her two cases which she had filed there, as is being claimed by her husband. As noticed already, this Court had vide order dated 17th July, 2012 passed in this suit directed both the parties to remain bound by their statements made on 3rd May, 2012 that they shall not proceed further in their respective cases. That way both the parties, in fact, stood restrained from proceeding

ahead with their cases in India as well as in Singapore.

16. The shelter being taken by the defendant now under the order dated 25th July, 2012 of the Division Bench of this Court to seek exoneration from the crime of contempt of Court is in my view totally misconceived. The Division Bench had simply observed in its order dated 25th July, 2012, relevant portions of which have already been extracted in this order, that in case the plaintiff herein was really interested in settling the matter regarding the maintenance of their two daughters, as was being offered by him and which he was finding difficult to do because of the Singapore Court having freezed all his assets by passing Mareva injunction against him, the order of the Single Judge passed in the present suit on 17th July, 2012 would not come in their way in getting that order modified. The Division Bench, however, never set aside the order dated 17th July, 2012 and in fact it was left open for the Single Judge Bench only to decide whether that order was to be confirmed or re-called. And the defendant herein was denied any other relief. So, even if after the disposal of the defendant's appeal the plaintiff had denied any obligation to give any money to his wife for the maintenance of their children, as is the stand of the defendant though she also is claiming that the plaintiff had subsequently

started paying something for the children, she could not have taken a unilateral decision to proceed ahead with her cases in Singapore without the permission of this Court. It is also her stand that the order dated 17th July, 2012 passed in the suit stood merged with the Division Bench's final order. That is not so since the Division Bench itself had clarified in its final order that merits of the wife's challenge to the maintainability of the suit etc. are matters of consideration of the Single Judge. If at all she wanted to move the Singapore Courts in terms of the liberty given to the parties by the Division Bench of this Court she would have joined her husband also in those applications mentioning therein that they were only wanting a modification of the Mareva injunction by consent. That was not done because as per the defendant's own case her husband had already represented to her that he was not obliged to maintain their children.

17. The defence now being taken by the defendant based on the order of the Division Bench in fact shows that she had intentionally moved the Courts in Singapore for proceeding further because she had not got any relief in this suit as well as in her appeal before the Division Bench and the stay applications of the plaintiff were not yet heard and disposed of on merits and

she had represented to the Courts in Singapore that Indian judicial system was slow. That is the image of Indian judicial system projected in a foreign country by a person who was born and brought up in India. She had no business to criticise Indian judicial system before the Singapore Courts while making a prayer for proceeding ahead with her cases. The following stand taken by her in para no.100 of her affidavit filed in Singapore's subordinate Court and particularly the highlighted portions, while seeking stay of proceedings in the present suit also shows that she has no respect for Indian Courts in general and this Court in particular :

"100. I am respectfully of the view that the Defendant has filed the Divorce application in India for he knows that he could make use of his wealth, connections and relative slower Indian legal system, to oppress and deny material support and relief to the children and I. He is heedless that his case is unmeritorious and heedless of whether it amounts to an abuse of legal process. The Defendant has no respect for the law and plainly intends to use his immense wealth to benefit him."

18. Her making a prayer in her cases in Singapore for proceeding ahead despite the fact that this Court had restrained her from doing that shows that all she did there wilfully and intentionally after her failing to get any relief from the Division Bench.

19. I am, therefore, of the view that the defendant-wife is clearly guilty of contempt of this Court which she has not even offered for purge. Her apology tendered in her reply to the contempt application, therefore, cannot be accepted. However, before she is punished for contempt of Court, this Court shall give her an opportunity to make her submissions on the point of sentence and she shall appear in person in Court on the date of hearing on the point of sentence which is fixed for 26th July, 2013.

20. Now I proceed further to consider whether plaintiff- husband has also committed contempt of this Court, as is being claimed by his wife. It has been claimed by the defendant-wife that after this Court had declined to grant him ex parte relief of injunction restraining her from not initiating any legal proceedings in Singapore, he admittedly came to know on 31st March, 2012 that she had already moved Singapore Court for divorce. On 10th April, 2012 the plaintiff approached the Singapore court where she had filed divorce petition and had moved an application not only for vacating the Mareva injunction but also for not proceeding ahead with the divorce petition on the ground that Singapore Court was not the convenient forum for resolving the matrimonial disputes

between the parties and the Indian Court could do that. The defendant has alleged that after having moved Singapore court for the aforesaid reliefs in her divorce petition the plaintiff moved a second ad interim injunction application in the present suit (being I.A. No.6736/2012) on 11th April, 2012 but in that application he did not disclose the fact that he had already gone to Singapore for getting stay of proceedings initiated there by her. These facts have not been disputed by the plaintiff in the present suit. In my view, concealment by the plaintiff in his second injunction application of the fact that he had, before filing that application, gone to Singapore Court for seeking stay of proceedings there amounts to playing a fraud on Court and, in fact, a Division Bench of this Court in "Satish Khosla vs. M/s Eli Lilly Ranbaxy Ltd. & Anr." 71 (1998) DLT 1 (DB) had held that concealment of a material fact from Court by a litigant not only amounts to playing fraud upon the Court but it amounts to contempt of Court also. However, before any final view is formed, this being only a prima facie view, I deem it appropriate to give an opportunity to the plaintiff also to show cause as to why he be also not held guilty for having committed contempt of this Court for the aforesaid reasons.

21. Accordingly, the plaintiff is called upon to show cause as to

why he be also not proceeded against for having committed contempt of this Court. The plaintiff shall file his response to the show cause notice which shall also appear in person in Court on 26th July, 2013.

21. In view of the fact that this Court has held the defendant- wife guilty of contempt of Court and notice having been directed to be given to the plaintiff-husband also to show cause as to why he be also not proceeded against for having committed contempt of Court consideration of the rival stands of the parties on merits is kept in abeyance and accordingly no orders are being passed today on the two applications under Order 39 Rules 1 & 2 CPC filed by the plaintiff-husband and appropriate order shall be passed after contempt matter is over.

P.K. BHASIN, J

JULY 15, 2013