An interesting off shoot emerges in diplomat Devyani Khobragade’s case. On September 20, the Delhi High Court had issued an injunction restraining her former maid Sangeeta Richard and her husband Phillip Richard from “initiating any action or proceeding or filing any suit or claims” in any Court outside India. This class of litigation in the realm of conflicts of laws, by legal parlance is labelled as an “Anti- suit injunction” and gives rise to an order issued by a Competent Court in India that prevents an imposing party from commencing or continuing a proceeding in another jurisdiction or foreign forum. If the opposing party contravenes such an order, a Contempt of Court may be issued by the domestic Indian Court against the offending party located in the foreign jurisdiction. Not very often invoked, anti-suit injunctions, are preferred in personal actions of matrimonial causes besides commercial matters and may be used to prevent forum shopping or checking oppressive and vexatious litigation in overseas jurisdictions. Most often, its actual success is difficult. Regardless, it is a developing jurisprudence in a country with a 30 million diaspora in 180 countries over the globe contributing immensely to cross border litigations.
DIPLOMAT’S CASE
Undoubtedly, the matter related to employment issues between the parties and was an ex-parte interim injunction. However, upon the matter being heard again on December 13, it is reported that the Delhi High Court was informed that the notice sent by the Court had not been served on Sangeeta in USA. Accordingly, the Delhi High Court again ordered that the Court’s summons be served upon Sangeeta afresh. Meanwhile, Devyani Khobragade had already been arrested in USA on December 12, creating a diplomatic furore with cross allegations of human rights violations and domestic abuse charges. Momentarily, the matter rests there as of now.
Earlier, when the Delhi High Court was seized of the matter in September, it had observed that prima facie evidence indicated that the contract of employment signed in India was a standard agreement said to be prescribed by the Embassy of United States in India for regulating the relationship between diplomatic agents and their domestic assistants. It is reported that the Court had noted that the documents on record before it, did not disclose the terms inter see between the parties regarding wages and other benefits. However, since Sangeeta was not served with the process of the Court, her response was not on record and the matter remains in conclusive. Regardless, the Ministry of External Affairs which was duly represented in the Delhi High Court was aware of the said Court anti-suit injunction.
MATRIMONIAL DISPUTES
This class of litigation is now being also used in matrimonial matters as well. Hindu marriages said to be made in heaven and solemnized in India are now wantonly dissolved abroad. Sad but true. A prelude follows. Parties immigrate, fight abroad and litigate for the parallel adjudication of their matrimonial disputes in Courts simultaneously in India and abroad which activates a new interse martial discord. This clash of jurisdictional battles also germinates a conflict amongst authority of Courts. Foreign Courts often impose penal sanctions oblivious of prior directions of existing Indian Courts of superior hierarchy. Rules of Private International Law offer little resolution. Spouses, children and extended families bear the brunt of multi-faceted parallel directives of Courts of different overseas territories.
The Supreme Court in Neerja Saraph Vs. Jayant Saraph (1994) proposed feasibility of enacting a legislation to ensure that no marriage between a NRI and an Indian which has taken place in India may be annulled by a foreign Court. Earlier in Y. Narasimha Rao Vs. Y. Venkata Lakshmi (1991), the Apex Court spelt out guidelines for recognition of foreign Court matrimonial judgments to decide when Hindu marriages solemnized in India were said to be dissolved by unenforceable foreign decrees.
The Bombay High Court in Sondur Rajini Vs. Sondur Gopal (2006) affirmed by the Supreme Court in 2013, ruled that a foreign domicile of parties will not take away the jurisdiction of Indian Courts to decide the annulment of their ceremonial Hindu marriage solemnized when they were domiciled in India. In Navin Chander Vs. Leena (2006), the matrimonial dispute of a ceremonial marriage of Hindus celebrated in USA, was held by the Bombay High Court to be amenable for adjudication by the Family Court, Pune. The Delhi High Court in Veena Kalia Vs. Jatinder Kalia (1996), ruled that an ex-parte decree of divorce of a foreign Court being a nullity, would not bar a subsequent petition for divorce in India even though maintenance had been accepted under the foreign judgment. In Harmeeta Singh Vs. Rajat Taneja (2003), the Delhi High Court temporarily restraining the foreign Court divorce proceedings held that even if the Hindu marriage is dissolved in USA, it would still have to be confirmed by an Indian Court. In Moina Vs. Amardeep (1996), a foreign domicile was held by the Delhi High Court to be no deterrent to a divorce petition preferred in India to dissolve a Hindu marriage celebrated here. These authoritative and laudable verdicts clearly reflect that Indian Courts rightly have a prerogative to adjudicate matrimonial disputes falling in their domain. The majesty of the Indian Courts in implementing personal law must prevail.
ANTI-SUIT ACTIONS
In this backdrop, a new dimension of matrimonial litigation is coming in practice in the arena in the shape of anti-injunction Suits which is the remedy against filing of suits at 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-injunction Suit 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, are the grounds of such Suits in India. However, even the reverse application now finds popular practice making anti-suit injunctions a two way street.
FOREIGN REACTIONS
An extreme view finds enunciation in a Judgment rendered on 20 September, 2010 in an anti-injunction Suit. The Federal Magistrates Court of Australia at Canberra restrained the wife from taking any action, as also for causing, allowing or assisting any other person, to pursue a complaint in India against the husband under The Dowry Prohibition Act, 1961. Both parties were Australian citizens married according to Sikh rites in India. By Australian consent orders, settlement of maintenance, property and child custody were resolved. The Canberra Court found that on evidence presented, Ms. Singh had not established that a dowry was either requested or paid as alleged. Accordingly, the Court held “that the injunction acts in personam only in relation to Ms. Singh, and does not, either in terms or otherwise, purport to affect the administration of justice in India”. The Judgment was said to be based on considerations of equity and justice. This was the foreign Court perspective.
NEED OF THE HOUR
In the above backdrop, the thought proposed for conscious deliberation which reverberates in the minds of those who live on home soil is the dire need for evolving an Indian jurisprudence in domestic litigation to deal with anti-injunction suits in India. If US authorities oblivious of the Indian legal system arrests and imprisons an Indian diplomat violating human rights, remedies under Indian law must develop to safeguard rights of Indians. Further, If an American Court imposes a fine of one lac US Dollars a day for not complying a US Court Child custody order contrary to an Indian Court order or a divorce petition on grounds of irretrievable breakdown of marriage is proceeded with in USA despite a pending Indian divorce litigation, such oppressive litigation must be restrained by the dictates of equity, good conscience and comity of Courts. Such unconscionable acts are estoppel by conduct. If foreign Courts can evolve principles, similar thinking must develop at home too.
CONCLUSION
In the far reaching repercussions which tend to shake the foundations of strong traditional Hindu marriages, a foreign Court matrimonial order may at times invade the privacy of the home and leave the hapless Indian spouse to abject surrender without a remedy. Even in other personal matters as the Indian diplomat’s case, the jurisdiction vests with Indian Courts to adjudicate in the matter. Surely, Law must come to rescue. The yeoman verdicts of Indian Courts are a big crutch. However, the need for a preventive remedy is stronger than a powerful cure at the end. What can be prevented must be stopped. What should not be suffered should not be endured. Anti suit injunctions in such matters in fit cases must deter oppressive foreign Court orders without technicalities. The majesty of Indian law must prevail.
Comments