Sonal Aashish Madhapariya vs Aashish Harjibhai Madhapariya
2021 Latest Caselaw 5189 Guj

         C/FA/184/2021                                     IA ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021
                  In R/FIRST APPEAL NO. 184 of 2021
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SONAL AASHISH MADHAPARIYA Versus AASHISH HARJIBHAI MADHAPARIYA ============================================= Appearance:

MR BJ TRIVEDI for the PETITIONER(s) No. MR JT TRIVEDI for the PETITIONER(s) No. MS JIGNASA B TRIVEDI for the PETITIONER(s) No. MR KIRTIDEV R DAVE for the RESPONDENT(s) No. ============================================= CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MR. JUSTICE ILESH J. VORA Date : 20/04/2021 IA ORDER (PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. The First Appeal is directed against the judgment and order dated 28.05.2019 passed by the Family Court, Bhuj­Kachchh passed below application at exhibit 11, in Family Suit No. 84 of 2018.

2. By an order dated 27.01.2018 passed by this Court (Coram : R.M.

Chhaya and R.P. Dholaria, J.J.), the First Appeal was admitted. By this Civil Application, the applicant has prayed for stay of proceedings of Case No.BV20D02693, pending in the Family Court at Willesden, United Kindgdom, filed by the present opponent. By ad interim order dated 27.01.2018, this Court passed the following order ­

"1. Heard Mr. B.J. Trivedi, learned advocate for the applicant and Mr. Kirtidev Dave, learned advocate for the opponent.

2. It is pointed out that Case no.BV20D02693, which is pending before the Family Court at Willesden, United

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Kingdom is kept tomorrow. Mr. Trivedi has relied upon the judgment of the Hon'ble Bombay High Court in the case of Arunima Naveen Takiar Vs. Naveen Takiar, reported in 2019 (3) Mh.L.J. 885. Mr. Trivedi has also relied upon the latest decision of the Hon'ble Apex Court in the case of Madhavendra L. Bhatnagar Vs. Bhavna Lall, dated January 19, 2021.

3. Notice returnable on 15.2.2021. Mr. Kirtidev Dave, learned advocate waives service of notice on behalf of the opponent.

4. It is pointed out that the proceedings before the Family Court at Willesden, United Kingdom are kept tomorrow and if no ad interim relief is granted, this appeal would become infructuous. Hence, by way of ad interim relief, the proceedings of Case no.BV20D02693, which is pending before the Family Court at Willesden, United Kingdom are stayed till the next date of hearing.

5. Reply, if any, be filed before the next date of hearing. A copy of the order is permitted to be served through Email."

3. At the outset, it may be noted that this Court (Coram : R.M.

Chhaya and R.P. Dholaria, J.J.) vide order dated 18.01.2021, was pleased to condone the delay in filing the appeal. As a matter of record, the order dated 18.01.2021 condoning the delay and order dated 27.01.2021 granting interim relief was challenged by the opponent before the Hon'ble Apex court by way of filing SLP No. 2515­2516 of 2021, wherein the Hon'ble Apex Court has passed the following order on 15.02.2021.

"We are not inclined to interfere with the impugned judgment(s) passed by the High Court. Special Leave Petitions are dismissed.

Pending applications, if any, also stand disposed of."

4. Heard Mr.Brijesh J. Trivedi, learned advocate for the applicant and Mr. Kirtidev Dave, learned advocate for the opponent.

C/FA/184/2021 IA ORDER

5. Mr.Trivedi, learned advocate has taken this Court through the factual matrix arising out of this application and has reiterated the grounds stated in the application. Mr. Trivedi, learned advocate appearing for the applicant further contended that even though this Hon'ble Court was pleased to grant ad interim relief and even though the respondent was well aware about the said order, the learned Solicitor has no regards about the same. Mr. Trivedi contended that the Affidavit­in­Reply filed in this Civil Application clearly indicates that the respondent has scant regard to the orders passed by this Court. Referring to the email correspondences on record dated 27.01.2021 and 09.02.2021, it was contended by Mr. Trivedi that stringent action needs to be taken against the respondent and his Solicitor. It was contended by Mr. Trivedi that the Solicitor of the respondent apparently does not have any regard for the orders passed by this Court. It was contended by Mr. Trivedi that the applicant has never approached any other court except the Courts in India for ventilating her grievance and it is the respondent who has gone to a forum outside India as the respondent feels that he could not get favourable orders. Referring to order passed by the Division Bench of this Court in First Appeal No. 3359 of 2019, it was contended by Mr. Trivedi that it is a matter of fact that the respondent suppressed the fact of filing a Family Suit in Family Court in UK. It was therefore alleged by Mr. Trivedi that the respondent has chosen the forum with a sole objective of succeeding at all costs. It was also contended by Mr. Trivedi that appropriate action for contempt of this Court's order be initiated against the respondent. Mr. Trivedi also contended that the Solicitor should have been informed. r. Trivedi also further contended that the applicant is ready and

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willing to resolve the issue as per the original conditions. Mr. Trivedi contended that the applicant has got a very good prima facie case and balance of convenience is also in favour of the applicant and if the proceedings pending before the Family Court at Willesden, United Kingdom are not stayed, the same is likely to cause irreparable loss to the applicant. Mt. Trivedi heavily relied upon the affidavit­in­rejoinder filed by the applicant in this proceeding and has contended that the application be allowed and ad interim relief granted by this Court be confirmed till the final disposal of this appeal.

6. Per contra, Mr. Kirtidev R. Dave, learned advocate appearing for the respondent has opposed this application. Mr. Dave contended that the there are no reasons as to why the respondent or his solicitor should be punished by this Court under the Contempt of Court Act. Mr. Dave contended that the statements made by the applicant are misleading and contended that, on the contrary, it was for the advocate of the applicant to inform the respondent as well as his solicitor about the order passed by this Court. Mr. Dave, learned advocate appearing for the respondent contended that the applicant wants to resolve the issue at her terms for which the respondent is not agreeable. Mr. Dave contended that if at all the applicant wants divorce, whether the same is granted by the Court in UK or whether it is granted by the Court in India, the same would not make any difference. Mr. Dave contended that no case for interim relief is made out and the application being misconceived, deserves to be dismissed and the ad interim relief granted earlier deserves to be vacated forthwith.

7. No other or further submissions have been made by the learned

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advocate appearing for the parties. We have perused the record of the appeal as well.

8. It is a matter of fact that by granting ad interim relief, this Court had considered the three ingredients for grant of interim relief in favour of the applicant. The applicant has relied upon the judgement of the Apex Court in the case of Madhavendra L. Bhatnagar Vs. Bhavna Lal dated 19.01.2021, wherein the Hon'ble Apex Court has passed the following order ­

"Be that as it may, during the pendency of the stated suit for declaration and for direction to handover custody of the minor child, an application had been moved by the appellant before the Trial Court which came to be rejected on the ground, that the Superior Court of Arizona was outside India and not subordinate to that court. This view noted by the Trial Court is completely erroneous and ill­advised. For, the relief claimed by the appellant was for grant of interim anti­suit injunction against the respondent and not against the Superior Court of Arizona, as such. When the matter traveled to the High Court at the instance of the appellant, even the High Court proceeded on an incorrect basis, that the courts in India could adjudicate the controversy between the parties, only after the Superior Court of Arizona would pass an order in the pending proceedings. That was not the purpose for which the ex parte ad interim relief was sought by the appellant. In any case, no judgment of this Court has been brought to our notice, which says that if the other party had already resorted to proceedings before another court including outside India, an anti­suit injunction cannot be issued even if the fact situation so warrants.

In our opinion, both the Trial Court and the High Court mis­ applied the legal position and committed manifest error, in rejecting the ad­interim relief claimed by the appellant against the respondent during the pendency of the proceedings between the parties before the Court at Bhopal. Accordingly, we have no hesitation in setting aside the impugned decisions and to grant interim relief as prayed in the application filed before the Court at Bhopal as reproduced

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above, including to restrain the respondent from proceeding with the pending suit instituted by her in the Superior Court of Arizona or to file any other proceedings, including interim application(s) in any proceedings hereafter (except in the proceedings pending in court at Bhopal) until further orders to be passed by the Court at Bhopal. "

9. Similarly, the Hon'ble Bombay High Court in the case of Arunima Naveen Takiar Vs. Naveen Takiar, reported in 2019(3) Mh.L.J. 885, has in similar circumstances, stayed the proceedings pending before the Court at UK. In the case on hand also, the appeal is already admitted against the order passed by the Family Court, Bhuj­Kachchh challenging the order passed by the Family Court wherein on the ground of res judicata it is held that the suit is barred which is to be heard on merits. Pending the same, if the stay as prayed for for is not granted, the appeal would become infructuous. On overall consideration of the fact on record, it is a matter of fact that the marriage between the applicant and and the respondent took place at village Madhapar, District Bhuj as per the Hindu rites. In facts of this case, the applicant has got a very good prima facie case and balance of convenience is in favour of the applicant. Following the judgment of the Apex Court in the case of Madhavendra L. Bhatnagar (supra), ad interim relief granted earlier is continued till the final disposal of this appeal. The appeal is at large pending before this Court. Till then the proceedings pending before the Family Court at Willesden, United Kingdom deserves to be stayed as it would not only render the appeal infructuous but would result into irreparable loss to the applicant. Hence, by way of interim relief, the proceedings of Case no.BV20D02693, which is pending before the Family Court at Willesden, United Kingdom are stayed till final disposal of this appeal.

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10. As far as the contention raised by Mr. Trivedi, learned advocate for the applicant as regards contempt of Court and of taking action against the respondent and his solicitor, the same is not necessary to be dealt with while considering this application for stay and same are kept open.

11. Application stands allowed accordingly. However, there shall be no order as to costs. Direct service is permitted. Copy of the writ be provided to learned advocates of the parties, forthwith.

sd/­ (R.M.CHHAYA, J)

sd/­ (ILESH J. VORA,J) KAUSHIK J. RATHOD