Anti-Suit Injunction (Remedy against Remedy) – A Matrimonial View Point.
(This article explores whether a matrimonial partner can institute and continue proceedings in a foreign court after surrendering to the jurisdiction of courts in India)
The crave for a decent living, is the genesis of any migration. A major destination for migration from India is Canada. Here is a story of a love marriage, migration, matrimonial discord, litigation and anti-suit injunction.
A back story
A migrated couple were class mates, during their college days. The husband turned an engineer, while the wife a qualified nurse. Migration was their dream, and Canada being their dreamland. Little did they know, the impact of their decision, in their lives.
Any country has their own good reason to permit migration. Filling the dearth in strategic work force, is predominant. Hence, a nurse is welcome, but an engineer is not. Quite naturally, the husband had to settle with menial jobs, while the wife could secure positions, promotion and a guarantee for pension. And, unfortunate for the couple, these were sufficient causes, for separation, later.
They took positions and wife was compelled to invest her earnings in India and the husband became its keeper. Name of the husband were included in some of the investments, even when there was nil contribution from him. Husband claimed co ownership those properties and sought partition before an Indian family court.
The family court order passed preliminary decree in favor of the husband, while the wife challenged the decree contending that the property, is hers. The couple were separated, the husband returned to India and the wife continued in Canada. She created assets in Canada, as well post separation, and claimed divorce in an Indian court.
Equalization of net family property in canada
While the couple, fight for property and divorce in India, the husband realizes about the law of equalization of family assets, is favorable for him. He claimed equalization of family assets in India and Canada in the Canadian court
The law in Canada, provided that ‘when a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them’[i]
The law clearly favors the husband in this case, as his contributions were much lesser when compared to his wife. How could the wife protect her absolute property in India and Canada.
Is the wife entitled for an anti-suit injunction against the High Court? Yes, says the Kerala High Court.
The Court is a George Koshy Vs. Sarah Koshy[ii], while holding that the Family Courts in India have power to grant anti suit injunctions observed as follows:
“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[iii] 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 Apex Court Modi Entertainment Network and Ors. Vs. W.S.G. Cricket PTE. Ltd[iv], has summarized the parameters under which the courts may consider the grant of antisuit injunctions. The relevant observations are extracted below:
“(1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects:-
(a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court;
(b) if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and
(c) the principle of comity — respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained — must be borne in mind;
(2) in a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (Forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexations or in a forum non-conveniens”
An anti-suit injunction as a remedy against remedy
An anti-suit injunction operates in personam[v] and not as an order in rem[vi]. Therefore, the injunction when granted, would operate as against the individual and not against the court. The order does not interfere with the jurisdiction of the foreign court; however, it incapacitates the party against whom the order is passed from initiating or continuing with the proceedings.
Hence, an antisuit injunction is truly a remedy against remedy.
[i] Section 5(1) of the Family Law Act 1990 https://www.ontario.ca/laws/statute/90f03#BK6
[ii] Judgement dated 9.04.2021 in MAT Appeal No. 497 of 2020 passed by the Kerala High Court.
[iii] Dinesh Singh Thakur vs. Sonal Thakur [AIR 2018 SC 2094]
[iv](21.01.2003 in Civil appeal No. 422 of 2003– SC): Manu/SC/0039/2003
[v] In personam refers to the courts’ power to adjudicate matters directed against a party.
[vi] In rem orders of courts are directed a thing and others may also have a general liability.
