BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/09/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(PD)No.525 of 2009 Bharathi ... Petitioner Vs Mahesh Kannan ... Respondent Prayer This Civil Revision Petition is filed against the order passed by the learned Subordinate Judge, Nagercoil dated 1.4.2009 in OS.Diary No.1597/2009 on the file of the Sub Court, Nagercoil. !For Petitioner ... Mr.N.Dilipkumar ^For Respondent ... Mr.A.V.Arun :ORDER
This Civil Revision Petition is filed by the plaintiff/wife against
the order dated 1.4.1009 passed by the learned Subordinate Judge, Nagercoil in
OS.Diary No.1597/2009, returning the plaint questioning the maintainability of
the suit.
2. The petitioner has filed the above said suit against the
respondent/defendant for the following reliefs:-
“a. Pass an order of permanent injunction restraining the defendant from
prosecuting Divorce Petition No.5261/2007 on the file of the Subordinate Court
of the Republic of Singapore.
b. Declaring that any of the orders passed by the the Subordinate Court of the
Republic of Singapore in Divorce Petition NO.5261/2007 hereafter could not be
recognised in India.
c. Pass an order of permanent injunction restraining the defendant from
initiating any legal proceedings as against this plaintiff before any courts of
the Republic of Singapore in future.
d. Grant a decree for recovery of Rs.2,25,000/- spent by the plaintiff to defend
her suit in Singapore from the defendant.
e. Award the cost of the suit.”
3. The petitioner is the wife of the respondent and their marriage
had been solemnized on 24.6.1999 at Sivagamiammal Marriage Hall, Vadeseri,
Nagercoil as per Hindu Law. The petitioner gave birth to a male child on
6.6.2004 at Gopala Pillai Hospital, Nagercoil and he is aged about four years.
The plaintiff and the minor child Mahesh Kannan Jaisivaa were living with the
defendant at Singapore till 24.8.2006. Since serious problems arose between
them, the petitioner returned to India with her child.
4. According to the petitioner, she was forcibly sent to India on
24.8.2006, which necessitated her to file an application before the Women
Commission of Tamil Nadu bearing No.2443/2007 dated 12.11.2007, for which the
respondent had sent a conciliation plan subject to eleven conditions dated
30.11.2007. In the mean while, the respondent had instituted the divorce suit
No.5261/2007 before the Subordinate Court of the Republic of Singapore against
the petitioner along with the matrimonial property plan. The petitioner had
filed her defence before the Subordinate Court of the Republic of Singapore and
she was unable to defend the case spending huge amount for travelling to
Singapore and therefore, she did not defend the said suit in Singapore.
Subsequently, the petitioner filed HMOP.No.15/2008 before the Sub Court,
Nagercoil for restitution of conjugal rights and the respondent had opposed the
said petition by filing a counter. Subsequently, he was set exparte and a decree
was passed under Section 9 of the Hindu Marriage Act for restitution of conjugal
rights.
5. The respondent is residing at Singapore and the petitioner had
sent a notice dated 18.12.2008 to the respondent through her counsel, requiring
the respondent to pay a sum of Rs.2,25,000/- representing the amount spent by
her to defend the suit at Singapore and informing about the decree passed by the
Sub Court, Nagercoil in HMOP.NO.15/2008 and that the respondent is not entitled
to continue the divorce proceedings in the Subordinate Court of the Republic of
Singapore. She has also stated in the said notice that any order passed thereon
will be in violation of principles of natural justice, but the said notice had
been returned. The petitioner had now come to know that the Subordinate Court of
the Republic of Singapore had passed an interim judgement dated 22.10.2008 in
the said divorce suit, which is likely to be made final in another three months
period.
6. It is the case of the petitioner that the respondent is bound by
the decree passed in HMOP.No.15/2008 dated 22.10.2008 and he is not entitled to
continue the divorce suit on the file of the Subordinate Court of the Republic
of Singapore. Therefore, the petitioner has filed the suit for the reliefs
stated supra.
7. The learned Subordinate Judge, Nagercoil has returned the suit,
questioning the maintainability of the suit and requiring the petitioner to
state the provision of law under which the Sub Court at Nagercoil could
entertain the suit and interfere with the divorce proceedings pending on the
file of the Subordinate Court of the Republic of Singapore. Aggrieved over the
same, this Civil Revision Petition has been filed by the plaintiff.
8. Mr.N.Dilipkumar, the learned counsel for the petitioner would
contend that the reasoning given by the court below for returning the plaint
is unsustainable, as no decree is sought for by the petitioner against the court
at Singapore and it is only as against the respondent. He would submit that the
petitioner though filed a written statement in the divorce suit initiated by the
respondent, but she has not submitted to the jurisdiction of the foreign court
and therefore, the decree if any passed is unenforceable against her.
9. The learned counsel for the petitioner would place reliance upon
the judgement of the Honourable Supreme Court rendered in the case of
Y.Narasimha Rao and others Vs. Y.Venkata Lakshmi and another [1991-3-SCC-451].
That is a case where the husband played fraud on the foreign court by
representing to it incorrect jurisdictional facts and on the factual situation
the Honourable Supreme Court has held that even presuming that the foreign court
by its own rules of jurisdiction had rightly entertained the dispute and granted
a valid decree of divorce according to its law, since the jurisdiction of the
forum as well as the ground on which the order was passed by the foreign court
is not in accordance with the Act under which the parties were married and the
wife had not submitted to the jurisdiction of the court or consented to its
passing of decree, it cannot be recognised by the courts in India and therefore
it is unenforceable.
10. In yet another decision of the Honourable Supreme Court
rendered in the case of Vikas Aggarwal Vs. Anubha [2002-4-SCC-468], the parties
were married in India and went to USA and in view of the serious problems arose
between them, the husband filed a petition for no default divorce in USA and
notice was served on the wife and she did not respond, but came back to India
and filed a suit before the Delhi High Court against the husband for separation
and maintenance and the Delhi High court issued an order restraining the husband
from proceeding further before the American Court for a period of 30 days and
thereafter, on being informed that the American Court had passed a decree of
divorce, the Delhi High Court issued an order under Order 10 of CPC directing
the husband to appear before the Delhi High court, which was challenged before
the Honourable Supreme Court. The Honourable Supreme Court held that the Order
10 of CPC is an enabling provision providing that the court at first hearing of
the suits shall ascertain from each party about their pleadings and it does not
in any manner place any bar on the powers of the court to seek any clarification
from any party in an appropriate case at any date earlier than to one fixed for
framing issues so as to advance interest of justice.
11. I am afraid that the aforesaid decisions cited by the learned
counsel for the petitioner cannot be applied to the facts of this case. From
the facts narrated by the petitioner, it is seen that the respondent has
instituted the divorce suit earlier to the filing of the petition by the
petitioner for restitution of conjugal rights. Though the decree is passed for
restitution of conjugal rights even before any decree could be passed in the
said divorce suit by the Subordinate Court of the Republic of Singapore, the
question for consideration is as to whether the Sub court at Nagercoil has
jurisdiction to entertain the suit seeking for the relief of permanent
injunction restraining the respondent from prosecuting the divorce suit
instituted earlier to that of the petition for restitution of conjugal rights in
India, for declaratory relief that any order passed by the Subordinate Court of
the Republic of Singapore in Divorce Suit NO.5261/2007 cannot be recognised
inIndia and also for permanent injunction restraining the defendant from
initiating any legal proceedings as against the petitioner before the
Subordinate Court of the Republic of Singapore in future.
12. It is settled law that there is a discretion with the court to
grant a declaratory relief or not under Section 42 of the Specific Relief Act.
In regard to the proceedings pending in the foreign court or decision given
thereon, a party is not entitled to a declaratory relief as a matter of right,
as it would infringe upon the undoubted right of the foreign courts to decide
the cases pending before them. It would be improper and derogatory to the
prestige of the foreign court if any Sub Court at India holds that the decision
of the foreign court is wrong for one reason or the other and cannot be
recognised in India. Even if such suit be entertained and a decision is given,
the foreign court would certainly ignore the decision in such a case.
13. In the case of Manohar Lal Chopra Vs. Rai Bahadar Rao Raja Seth
Hiralal [AIR-1962-SC-527], the Honourable Supreme Court has held that question
of issuing an order to a party restraining him from proceeding with any other
suit in a regularly constituted court of law deserves grate care and caution and
such an order is not to be made unless absolutely essential for the ends of
justice.
14. In the instant case, the last relief preferred by the
petitioner for the grant of decree for recovery of a sum of Rs.2,25,000/- spent
by her to defend the suit in Singapore can be sought for and in my considered
view, the suit in respect of other reliefs cannot be entertained.
15. In view of the aforesaid reasons, the return made by the court
below is sustainable and I do no find any illegality or infirmity in the said
order and this Civil Revision Petition is liable to be dismissed.
16. In the result, this Civil Revision Petition is dismissed. No
costs.
Srcm
To:
The Subordinate Judge, Nagercoil