Smt. Divya Malpani (Nee Divya ... vs Shri Saurabh Malpani
2022 Latest Caselaw 16646 MP

                                                                 1


           IN THE HIGH COURT OF MADHYA PRADESH
                                                 AT I N D O R E
                                                         BEFORE
               HON'BLE SHRI JUSTICE SUBODH ABHYANKAR

                               ON THE 15th OF DECEMBER, 2022

                              REVIEW PETITION No. 1244 of 2022

BETWEEN:-
SMT. DIVYA MALPANI (NEE DIVYA MALU) W/O
SHRI SAURABH MALPANI, AGED ABOUT 35
YEARS, CHRISTA 01, APT. 1403 APOLLO DB
CITY, NIPANIA DISTICT INDORE (MADHYA
PRADESH)
                                                                                                       .....PETITIONER
(BY SHRI ARCHIT JAYAKAR, ADVOCATE WITH SHRI RAUNAK CHOUKSE,
ADVOCATE)

AND
SHRI SAURABH MALPANI S/O SHRI SHYAM
MALPANI, AGED ABOUT 37 YEARS, 701
NAVKARANPLOT       117    LOKHANDWALA
COMPLEX ANDHERI WEST MUMBAI AND ALSO
RESIDING AT 238 DORIS AVENUE, APT 1808 IN
NORTH YORK, ON CANADA (OTHER COUNTRY)
                                                                                                     .....RESPONDENT
(BY SHRI VIVEK DALAL, ADVOCATE WITH MS. FEROZA DARUWALA AND
MS. PALAK JOSHI, ADVOCATES )
..........................................................................................................................................
           This petition coming on for admission/orders this day, the court
passed the following:

                                                        ORDER

Heard finally with the consent of the parties.

2] This review petition has been filed under Order 47 Rule 1 of CPC for review of the order passed by this Court on 28.10.2022, in M.P.

No.3546 of 2022 whereby this Court had rejected the review petitioner's petition holding that the lis between the parties regarding the custody of their daughter Miraya has concluded and thus, the order passed by the trial Court rejecting the application filed by the petitioner for an Anti Suit Injunction has been affirmed.

3] Shri Archit Jayakar, learned counsel appearing for the review petitioner has vehemently argued before this Court and it is submitted that the aforesaid order under review was reserved by this Court on 29.07.2022, whereas it was delivered on 28.10.2022 and in the meantime, on 30.09.2022, the counsel for the respondent inquired from the Superior Court of Justice, Family Court, Toronto, Canada seeking clarification regarding its 13th July, 2022 order, whether it was temporary or final, and the Canadian Court has clarified the order in the following manner:-

"July 13, 2022 Order - Temporary or Final?

46. At the motion, the applicant advised that he filed an over- the-counter motion by way of 14B motion to amend my July 13, 2022 Order into two separate orders - a Temporary Order and a Final Order. That Order is marked as Temporary. The applicant argued that the fact that the Order is marked as Temporary is raising confusing and unnecessary arguments in the Indian court proceedings.

47. For clarity, I explain why the July 13, 2022 Order is marked as Temporary.

48. In most family proceedings, parties seek interim and temporary relief until a trial is held. This allows parties to obtain temporary orders that fix interim decision-making and parenting time (previously called "custody" and "access" orders) until there is a final determination on the merits following trial or summary judgment. For this reason, initial Orders of this Court are usually marked as Temporary, and decision following a trial are marked as Final.

49. In this case, there was a threshold issue of jurisdiction. Parties were provided with an opportunity to prepare their evidence, on notice to the opposing side, and to make oral submissions. Based on the evidence and submissions, I made a Final ruling that this Court has jurisdiction to make parenting orders in this case because of the child's place of habitual residence, and I made a Final Order

that the respondent shall return to the child to Toronto, Ontario. An order for jurisdiction pursuant to the Children's Law Reform Act is a Final Order: Winsa V. Henderson, 2016 ONSC 1736, para 37. My Order that the child be returned to Toronto, Ontario was a consequence of my finding that Ontario had jurisdiction, and it is, therefore, also a Final Order.

50.On the assumption that the child would be returned to Toronto, Ontario, I made Temporary Orders with respect to decision- making authority and parenting time. The purpose of those temporary Orders was to establish a temporary status quo until the issues could be fully determined at trial and to provide a level of stability for the parties and the child in the interim.

51. Should there remain ambiguity with respect to the final or temporary nature of the Order I made on July 13, 2022, I will entertain the applicant's 14B motion to amend my Order on July 13, 2022 to create two separate Orders - one Temporary and one Final. For the moment, it is adjourned. This issue can be addressed at the next case conference.

53. She is directed to serve and file an Answer by November 8, 2022, along with all other documents required under the Family Law Rules. Should she fail to do so, this matter may proceed as an uncontested trial."

(emphasis supplied)

4] Thus, counsel for the petitioner has submitted that even the Canadian Court has held that certain part of the application is still pending, thus, it cannot be said that the dispute regarding the custody of the child between the parties has been settled. Counsel has also submitted that the respondent had applied for not only the custody of the child, but also for the divorce, which fact has not been disclosed to this Court and this Court has passed the order under the assumption that only the proceedings regarding the custody of the daughter of the parties are pending in the said Court at Ontario, Canada.

5] In support of his contention, Shri Archit Jayakar, counsel of the petitioner has also placed on record the application filed by the respondent in the Toronto Court at Canada to demonstrate that the petitioner has also sought the divorce from the said Court in addition to decision making responsibility for child, parenting time with child and

contact with child. It is submitted that as the application under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Hindu Marriage Act) is already pending in the Court at Indore, Canadian Court has no jurisdiction to try the divorce matter under the Canadian law as the parties have solemnized their marriage as per the Hindu rites and are governed by the Hindu Marriage Act only.

6] In support of his contention, Shri Jayakar, has also relied upon various decisions of Supreme Court and Bombay High Court,viz. in the cases of Y.Narasimha Rao and others Vs. Y. Venkata Lakshmi and another reported as (1991) 3 SCC 451; Rajendra Singh Vs. Lt. Governor, Andaman & Nicobar Islands and others reported as (2005) 13 SCC 289; Board of Control for Cricket, India and Ors. Vs. Netaji Cricket Club and Ors; reported as (2005) 4 SCC 741; S. Madhusudhan Reddy Vs. V. Narayana Reddy and others passed in Civil Appeals No.5503-04 of 2022 arising out of Petitions for Special Leave to Appeal (Civil) No.9602-03 of 2022; Green View Tea & Industries Vs. Collector, Golaghat, Assam and another; reported as (2004) 4 SCC 122; and Marine Geotechnics LLC, having its place of business at 16313, Smith Street, Houston, Texas 77040-2833, USA Vs. Coastal Marine Construction & Engineering Ltd., having its registered office at 402, Madhava, Bandra Kurla Complex, Bandra (E), Mumbai and others reported as 2014 SCC OnLine Bom 309. 7] Shri Vivek Dalal, counsel appearing for the respondents, on the other hand, has opposed the prayer and it is submitted that the petition is liable to be dismissed as no case for interference is made out, as this Court has passed the order after perusal of the record placed in M.P. No.3546 of 2022, and this Court has rightly held that the lis between the

parties so far as it relates to custody of the child is concerned, has also been concluded and no Anti Suit Injunction can be granted in respect of the said dispute which has attained the finality. Counsel has further submitted that vide order dated on 30.09.2022, the Canadian Court has only clarified its own order and which is in line with the reasoning assigned by this Court in the order under review dated 28.10.2022 passed in M.P. No.3546 of 2022. It is further submitted that so far as the petitioner's contention that the respondent has also applied for divorce in the Canadian Court, the same is not based on the documents filed on record by the parties as the respondent has placed on record the document clearly demonstrating that the petitioner has strikethrough the relief of divorce from the said proceedings and the respondent reiterates that no application for divorce is pending in the Court at Canada. 8] Heard counsel for the parties and perused the record. 9] From the record, it is found that this Court has already passed a detailed order holding that the dispute between the parties as concluded so far as it relates to custody of the child which had already been decided by the Canadian Court finally. Which fact has also been affirmed by the Canadian court ,in the clarification assigned by the Canadian Court in the order as reproduced herein above. 10] So far as the petitioner's contention that the respondent has also sought the divorce from the Canadian Court is concerned, it is found that in the application which is placed on record at page No.61 of this review petition, the respondent has strike-through his relief regarding divorce in the format of the application, in such circumstances, this Court does not find any reason to interfere with the earlier order passed by this Court and finds no error apparent on the face of the record to

interfere with the aforesaid order. In such circumstances, the decisions relied upon by the counsel for the review petitioner are distinguishable on facts and are of no avail to the petitioner.

11] So far as the legality of the proceedings pending in the Canadian Court is concerned, this Court has already reserved the right of the petitioner to raise such objection at the time of the execution of the order passed by the Canadian Court in India. In such circumstances, the review petition being devoid of merits, is hereby dismissed. 12] No costs.

(Subodh Abhyankar) Judge Pankaj

Digitally signed by PANKAJ PANDEY Date: 2022.12.21 18:11:00 +05'30'