Kerala High Court
George Koshy vs Sarah Koshy on 9 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
Mat.Appeal.No.497 OF 2020
Against order in Unnumbered OP of 2020 (CF 2580/2020) dated
11/8/2020 of Family Court, Pathanamthitta)
APPELLANT/S:
GEORGE KOSHY
AGED 50 YEARS
S/O.K.G.KOCHUKOSHY, KONNAYIL HOUSE, OPP VHSS,
KAIPATTOOR MURI, VALLICODE VILLAGE, KAIPATTOOR P.O.,
KONNI TALUK, PATHANAMTHITTA PIN-686 648.
BY ADVS.
SRI.V.PHILIP MATHEW
SRI.JEPH JOSEPH
SRI.JOHNSON K.KURIEN
RESPONDENT/S:
SARAH KOSHY
AGED 45 YEARS
KALLOORTHAZHCHAYIL, MARTHOMA COLLEGE ROAD,
KUTTAPPUZHA, R.S.P.O., PATHANAMTHITTA DISTRICT-689
103(ALSO HAVING PRESENT RENTAL ADDRESS AT 16 DURANT
PLACE CHERRYBROOK, 2126 NSW, AUSTRALIA)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
-:2:-
A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
MAT.APPEAL NO.497/2020 "C.R."
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
JUDGMENT
Dated this the 9th day of April 2021
The appeal arises from an unnumbered original petition
filed by the appellant herein. The original petition was
filed for an anti-suit injunction before the Family Court,
Pathanamthitta. The Family Court, without issuing notice, by
a detailed order dismissed the original petition holding that
it has no jurisdiction to entertain the original petition.
The said order is under challenge in this appeal.
2. The anti-suit injunction was filed to restrain the
respondent from proceeding with the divorce petition filed by
her in Australia.
3. As disclosed from the pleadings, the marriage
between the appellant and the respondent was solemnised at
St.Ignatious Orthodox Church Kaipattoor. Anti-suit injunction
is a species of injunction.
4. Anti-suit injunction is instituted to prevent the
opposite party from instituting or continuing with the
proceedings in another Court in domestic or foreign country.
5. In matrimonial matters, the parties may be entitled
to invoke different jurisdiction - jurisdiction based on
Mat.Appeal.No.497 OF 2020
domicile or jurisdiction based on celebration of marriage
etc.
6. In Modi Entertainment Network and Ors.v. W.S.G.
Cricket PTE Ltd [AIR 2003 SC 1177], the Hon'ble Supreme
Court examined the general principles related to anti-suit
injunction by Courts. It is appropriate to refer the
relevant portion of the said judgment which reads as
follows:
The Courts in India like the Courts in England are Courts of both law
and equity. 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 Court in India has 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 exercised sparingly because such an
injunction though directed against a person, in effect causes interference in
the exercise of jurisdiction by another Court.
7. The Apex Court in a recent Order in Madhavendra
L.Bhatnagar v. Bhavna Lall [(2021) 2 SCC 775] the Hon'ble
Supreme Court held that anti-suit injunction can be issued
if the other party had already resorted to proceedings
before another court including outside India.
Mat.Appeal.No.497 OF 2020
8. In Vivek Rai Gupta v. Niyati Gupta [(2018) 17 SCC
21], the Apex Court particularly referred to anti-suit
injunction in matrimonial disputes.
9. The Hon'ble Supreme Court in Dinesh Singh Thakur
v. Sonal Thakur [AIR 2018 SC 2094] also referred to
parameters in granting reliefs in anti-suit injunctions in
matrimonial disputes.
10. Renowned authors, Shri Anil Malhotra and Ranjit
Malhotra in their book 'The Global Indians and The Law'
published by OakBridge referred to anti- suit injunction in
Chapter 23 as follows:
When between the same parties, litigating on the same subject matter,
and based on the same cause of action, only one Court has jurisdiction, it is
said to have exclusive jurisdiction. However, if more Courts than one have
jurisdiction over the same matter, they are called Courts of concurrent
jurisdiction. In such circumstances, the criteria to determine which is the
more appropriate jurisdiction for the adjudication of the matter, either
party can elect to restrain the other party, not to proceed with the same
litigation in the other non preferred jurisdiction. In such process, Courts
in different jurisdictions cannot restrain each other. However, the same
parties appearing before both the Courts in different jurisdictions, can seek
an injunction to restrain the other party, from proceeding in the other non-
preferential jurisdiction with the same matter. Such suits seeking restraint
of proceedings in one jurisdiction are called Anti-Suit Injunctions.
The authors further referred to anti-suit actions in
matrimonial litigation as follows:
Mat.Appeal.No.497 OF 2020
In this backdrop, this new dimension of matrimonial litigation is coming in
practice in the arena in the shape of anti-suit injunctions. They are the
remedy against filing of suits in different jurisdictions, in respect of the
same cause of action. A petition preferred in India, for restraining an
opposing spouse from pursuing or continuing with a complaint for matrimonial
relief in a foreign Court, would be such an anti-suit injunction petition in
matrimonial matters. Lack of jurisdiction, both regarding the corpus of the
Hindu marriage, and the physical presence of an Indian spouse in the
territory abroad, is the main ground of such Suits in India. However, even
the reverse application now finds popular practice, making anti-suit
injunctions a two-way street.
11. We do not have any difficulty in holding that
anti-suit injunction is maintainable in view of the power
to grant injunction in matrimonial disputes by the family
court. This power is traceable to Explanation (d) to
Section 7(1) of the Family Courts Act. However, the Family
Court has to be very cautious in granting the relief. As
held by the Apex Court in Dinesh Singh Thakur's case
(supra) parameters as laid down in Section 41 of the
Specific Relief Act, 1963 are to be considered while
adverting to the reliefs sought. Entertaining a suit and
granting reliefs are different aspects of the proceedings.
The Family Court in this matter appears to have mixed up
the entire issue without adverting to its jurisdiction to
entertain such petition.
Mat.Appeal.No.497 OF 2020
12. We therefore, set aside the order of the Family
Court. We direct the Family Court to number the case and
hear the parties on reliefs sought in the matter. In view
of the urgency expressed by the appellant, we direct the
parties to appear before the Family Court on 15/4/2021 and
the Family Court shall hear and dispose of the interim
application without further delay. Since respondent is
abroad, we permitted her to appear before us through her
counsel without formal vakalath being filed. If the
respondent is not in a position to file vakalath, the
Family Court shall permit the respondent to appear through
the counsel on filing a memo. Registry is directed to
communicate this judgment to the Family Court,
Pathanamthitta, forthwith.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
ms
