Anti-Suit Injunction Maintainable Only Against Properties Held In India, Would Not Apply To Canadian Properties: Kerala High Court

The Kerala High Court recently held that an anti-suit injunction by a wife against her husband who had instituted a suit in a Canadian court, would only be maintainable with respect to properties held in India.

A Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha observed:

"Canadian court would not have jurisdiction with regard to the property/properties located in Kerala. Either of the parties have to seek relief by filing a suit in court having proper jurisdiction...we modify the order of the trial court and injunct respondent No.1 not to stake the claim in respect of properties in joint ownership or in individual names situated in India...with regard to the property in Canada, there shall be no such injunction."

The married couple in question had migrated to Canada and were working there, and also acquired properties in Canada. Following marital discord, the wife filed a divorce petition. It is noted that an ex parte divorce decree was stated to have been passed when the husband moved the same, although it was submitted that the order had not yet been issued. 

During this time, it was argued that the respondent-husband invoked the jurisdiction of Ontario Court, Canada, and raised multifarious claims, including equalization of net family properties.

The Court noted that in 2019, in respect of joint property, when the respondent-husband had instituted a suit for partition at Kollam an ex parte preliminary decree had been passed, and an application for setting aside the decree is stated to be pending adjudication.

It is argued that the jurisdiction of the Family Court, Kollam, was invoked as per the Family Courts Act on an apprehension that the property may not include the property in India and an application was accordingly filed under Order 39 Rule (1)(2) for temporary injunction which was dismissed. It is in such circumstances that the present plea has been moved by the petitioner-wife. 

The petitioner contended that once the husband had already invoked the jurisdiction in respect of joint property claiming partition, he could not be permitted to continue with the suit in Kerala for the same relief. It was submitted that the court below refused to grant an injunction on finding the suit to be maintainable. 

The petitioner placed reliance on the explanation (d) to Section 7(1) of the Family Courts Act (Jurisdiction of Family Courts over a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship), as well as Section 41 of the Specific Relief Act, 1963 (Injunction, when refused). 

The respondent however argued that the reliefs claimed in the Canadian Court were multifarious and not confined to the property as was tried to be projected. He however did not deny the ex parte preliminary decree in respect of the joint property by the Kerala Court, nor the divorce petition. He added that an anti-suit injunction as sought would not be maintainable in view of the provisions of Section 41 of the Specific Relief Act. 

The Court was of the view that the trial court, while rejecting the interim application, did not take note of the fact that Canadian courts would not have jurisdiction with respect to properties in Kerala. 

"Section 41 of the Specific Reliefs Act prohibits any person to claim the relief as sought for that would apply in respect of suits to be instituted in India but not in Canada. Therefore, the principles could not strictly be applicable for the relief as sought for," it observed. 

The Court further observed that the court below ought to have been wary in applying the principles culled out in the judgment of Dinesh Singh Thakur v. Sonal Thakur (2018), which did not pertain to reliefs in respect of properties. 

The Court thus modified the trial court order and injuncted the respondent-husband from staking claim on properties in joint ownership or in individual names situated in India. 

"It is made clear that as regards other reliefs or reliefs with regard to the property in Canada, there shall be no such injunction," it added, while disposing the plea. 

Counsel for the Petitioner: Advocates Johnson Gomez, S. Biju, Sanjay Johnson, Arun Johny, Deebu R., Abin Jacob Mathew, and Revathi B.

Counsel for the Respondent: Advocates R. Anil, Thomas Sabu Vadakekut, Mahesh Bhanu S., Ressil Lonan, and K.S. Kiran Krishnan

Citation: 2023 LiveLaw (Ker) 758

Case Title: Archana Pius v. Shine

Case Number: OP (FC) NO. 274 OF 2023

Click Here To Read/Download The Judgment