Delhi High Court restrain NRI from seeking divorce in USA- Anti suit Injunction granted.

 

 

Delhi High Court restrain NRI from seeking divorce in USA- Anti suit Injunction granted.

 

The Delhi high court has come to the rescue of a woman allegedly deserted by her husband who has filed for divorce in the US.

In a recent ex-parte order, Justice Mukta Gupta restrained the husband from proceeding with the divorce petition filed in a Texas court. She took into account that the couple had tied the knot in India and now the woman doesn’t possess a valid visa to travel to the US and contest the divorce plea.

“The balance of convenience lies in favour of the wife and if injunction isn’t granted, she will suffer irreparable loss,” Justice Gupta said

HC accepted the argument of the woman’s lawyer, Prabhjit Jauhar, that since they were married in India in accordance with Hindu Marriage Act, 1955, their marriage could only be dissolved under the provisions of the Act. He further said the US court has no jurisdiction to resolve the marriage.

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 IN THE HIGH COURT OF DELHI AT NEW DELHI

 CS(OS) 2386/2013

NIDHI PRAKASH ….. Plaintiff

Through: Mr. Prabjit Jauhar and Ms. Anupama Kaul, Advocates.

versus

RAJNEESH VARMA ….. Defendant

Through: None.

CORAM:

HON’BLE MS. JUSTICE MUKTA GUPTA

O R D E R

02.12.2013

I.A. No. 19497/2013 (Exemption)

Allowed, subject all just exceptions.

I.A. No. 19496/2013 (Exemption)

Allowed, subject to the Plaintiff filing the original documents
before admission/denial of the documents.

Application is disposed of.

CS(OS) 2386/2013

Plaint be registered as a suit.

Issue summons in the suit to the Defendant on the Plaintiff taking
steps through Registered AD, Courier and email, returnable on 10th
January, 2014.

CS(OS) 2386/2013 Page 1 of 4

I.A. No. 19494/2013 (u/Order XXXIX Rule 1 and 2 CPC) and I.A. No.
19495/2013 (u/Sections 20, 23 and 26 of Domestic Violence Act)

Issue notice to the Defendant on the Plaintiff taking steps through
Registered AD, Courier and email, returnable on 10th January, 2014.

The case of Plaintiff is that the parties got married on 25th June,
12 in India as per the Hindu Rites and Customs and left for USA on 4th
July, 2012. The parties were residing in a rental accommodation at 1114,
1200, South Dairy Ashford 77077, Houston, Texas. It is stated that the
Defendant had been treating the Plaintiff with cruelty. The Defendant
and his family members also raised demands from the Plaintiff?s parents
pursuant to which 5,000/- USD were transferred into the account of the
Defendant. The Defendant booked the tickets of the Plaintiff to India on
27th June, 2013 with return ticket for 22nd August, 2013 to Houston back.
It was represented to the Plaintiff by the Defendant and his family
members that after spending some time with her parents and parents of the
Defendant at Bangalore, the Plaintiff would come back to USA in August,
2013 and the Defendant would also visit India during the said period for
two weeks as the Defendant?s sister was also likely to deliver the second
child. It was never CS(OS) 2386/2013
Page of 4 disclosed to the Plaintiff that the Defendant had
applied for his green card and that the name of the Plaintiff had not
been included in the green card petition as spouse. The Plaintiff was on
H4 dependant visa when she went to USA after marriage and thus after
obtaining the green card by the Defendant, the work permit visa of the
Defendant would cease to operate and thus the visa of the Plaintiff
enabling her to stay in USA would also automatically cease to operate.
Since July, 2013, the Plaintiff is residing at New Delhi with her
parents. The Defendant wrote emails to the Plaintiff stating that her
coming to Texas would have no effect as he wanted to separate. The
Defendant has filed the divorce petition in the Harris County Court,
Texas on the ground that the marriage has become unsupportable on account
of discord or conflict of personality and has prayed that the divorce be
granted to the Defendant. The Plaintiff has not submitted to the
jurisdiction of the Harris County Court, Texas till date nor has filed
any written statement. Thus the Plaintiff seeks an ad-interim ex-parte
anti suit injunction against the Defendant.

The parties were married in India as per the Hindu Marriage Act,
1955. The Plaintiff in the absence of a valid visa is not in a position
to CS(OS) 2386/2013 Page 3 of
4 travel to USA. Further the Court at Texas is a forum non-convenience
to the Plaintiff. In view thereof, I am of the considered opinion that
the Plaintiff has made out a prima facie case in her favour for grant of
ad-interim ex-parte anti suit injunction. The balance of convenience
also lies in favour of the Plaintiff and in case no injunction is
granted, she will suffer irreparable loss. Consequently the Defendant,
his attorney, representatives etc. are restrained from further proceeding
with the petition filed before the Court of Harris County, Texas in Court
File No. 201363296 till the next date of hearing.

Compliance under Order XXXIX Rule 3 CPC be made within one week.

Order dasti.

MUKTA GUPTA, J.

Divorce on ground of desertion,mental cruelty and false criminal complaints by wife.

 

Divorce on desertion,mental cruelty and false criminal complaints by wife.

Conjugal Rights of Marriage:  

. The respondent also denied conjugal rights to the

appellant so as to coerce him to stay separate from his mother. On

the above referred allegations touching mental agony and torture

divorce petition was filed.

 

Criminal Complaints filed by wife.

. The appellant immediately sent a notice on 9.5.03 asking the

respondent to join the company and cohabit with the appellant but

instead of joining the company of the appellant the respondent

initiated criminal case under section 498A of IPC not only against

the appellant and his mother but three other near relations who

were staying separately including the uncle, aunt and husband of

the aunt. All the persons accused of having committed the offence

under section 498A of IPC were arrested by the police and they

were detained in custody.

 

Mental torture:

. According to the learned counsel for the appellant arrest

and detention of the family members and near relations of the

appellant in false case has caused him utmost mental torture.

 

Desertion :

 

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“There can not be absolutely two opinions regarding

legal proposition that if the wife filed false criminal cases

against the husband, her conduct does amount to causing

mental cruelty and torture to him, therefore, the husband

becomes entitled for a decree of divorce. The necessary

condition for constituting such legal cruelty is that the wife

has indulged into making false and reckless allegation by

filing false complaint to the police. A singular complaint filed

by wife under section 498A of IPC against the husband and

his family members can not indicate the tendency of wife to

indulge into making such false allegation.”

We fail to understand the logic behind the reasoning adopted by

the family court to hold that a singular complaint of this nature

under section 498A of IPC resulting in arrest and detention of the

family members and relatives thereby causing utmost

embarrassment, humiliation and suffering does not constitute

mental cruelty. It is illogical that more than one complaint are

necessary to be filed to constitute mental cruelty. In our view,

embarrassment, humiliation and suffering that is caused on account

of arrest and detention of appellant and his family members and

relatives in a false case does constitute mental cruelty to enable the

husband to seek decree of divorce on this sole ground. In our

considered opinion, the approach of the family court is wholly

perverse and the reasoning cannot be sustained in law. In regard to

other circumstances the family court has observed :

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

 

FAMILY COURT APPEAL NO. 66 OF 2006

 

Ajay Ashok Khedkar …. ….. ….. ….. Appellant.

V/s

Sou. Laleeta Ajay Khedkar….. …. ….. ….Respondent.

 

Mr.Hitesh Vyas, Adv. For the appellant.

Mr.Sachin S. Pande, Adv. For the respondent.

CORAM: A.P.DESHPANDE AND SMT. R.P. SONDURBALDOTA, JJ.

Date:12th April, 2010.

ORAL JUDGMENT: (Per Deshpande, J.)

 

This is family court appeal filed by the unsuccessful husband

whose petition for divorce has been dismissed by the Family Court.

The appellant and the respondent’s marriage was solemnized as per

Hindu rites and customs at Pune on 8.3.2001. The marriage was

an arranged marriage and after the marriage the respondent came

to reside with the appellant. The appellant’s mother resides along

with the appellant. The petition for divorce was filed on the

ground of mental cruelty under section 13(1)(ia) of the Hindu Marriage Act, 1955.

 

2. According to the petitioner on the wedding night itself the

respondent alleged that she was deceived in regard to income of

the appellant. The respondent allegedly stated that the salary of

the appellant as informed to her was much more than what he was

actually receiving. It is also alleged that with reference to the

number of spectacle the respondent taunted the appellant by saying

that she was made to perform marriage with a blind person.

Touching those issues the respondent allegedly started quarreling

with the petitioner and insulting the petitioner. It is the case of the

appellant that since beginning the behaviour of the respondent was

arrogant and rude and immediately after the marriage the

respondent was insisting that the petitioner should stay separately

from his mother in one of the two flats owned by the appellant’s

family situated at Raviwar Peth, Pune. According to the appellant

he tried to convince the respondent that his mother is old and there

is no one else to look after her and hence refused to stay separately.

It is also the case of the appellant that the respondent gave threats

that she would commit suicide if the appellant fails to reside

separately. The respondent also denied conjugal rights to the

appellant so as to coerce him to stay separate from his mother. On

the above referred allegations touching mental agony and torture

divorce petition was filed.

3. Sometime in December 2002 the respondent went to the

house of her parents for delivery. She delivered a girl child on

26.2.03. Despite passage of enough time the respondent did not

join the company of the appellant. According to the appellant

because of the insistence on the part of respondent to stay

separately the marital life was disturbed and peace and harmony

was lost.

On 3.5.03 the father of the respondent brought the

respondent to the house of the appellant but without meeting the

appellant or his mother respondent’s father went away. On 6.5.03

the respondent called her parents and brother at the house of the

appellant. The near relations of the respondent quarreled with the

petitioner and his mother and after creating a scene threatened the

appellant that they would implicate the appellant and members of

his family in false criminal cases. So threatening the appellant,

father and brother of the respondent took her away along with

them. While leaving the appellant’s residence they said that only if

he resides separately the respondent will be sent back. The

appellant immediately sent a notice on 9.5.03 asking the

respondent to join the company and cohabit with the appellant but

instead of joining the company of the appellant the respondent

initiated criminal case under section 498A of IPC not only against

the appellant and his mother but three other near relations who

were staying separately including the uncle, aunt and husband of

the aunt. All the persons accused of having committed the offence

under section 498A of IPC were arrested by the police and they

were detained in custody. This is the main circumstance which is

relied upon by the learned counsel for the appellant to contend that

lodging of false case which resulted in arrest and detention of

family members of the appellant is singularly sufficient enough to

hold that the respondent is guilty of causing mental cruelty and

agony to the appellant and thus pressed for grant of decree of

divorce. According to the learned counsel for the appellant arrest

and detention of the family members and near relations of the

appellant in false case has caused him utmost mental torture.

During pendnecy of divorce petition the said criminal case came to

be decided by a judgment dated 13.5.05 by Judicial Magistrate,

First Class, Pune acquitting the appellant and all his family

members from the charge under section 498A of IPC.

4. Perusal of the judgment clearly reveals that the prosecution

utterly failed to prove the case put forth by the complainant. The

Judicial Magistrate has recorded categoric finding that the

complainant’s own testimony falsifies the prosecution case that the

complainant was treated cruely and was harassed by the accused

persons with a view to coerce her and her parents to meet their

unlawful demand of Rs.50,000/.

The Magistrate has totally

disbelieved the version of the complainant/wife and has acquitted

the accused persons. On a careful reading of the judgment

rendered in the case of prosecution under section 498A of IPC one

thing is crystal clear and it can be safely assumed that the wife had

filed a false case not only against her husband and motherinlaw

but had unnecessarily roped in other near relations. It is obvious

that on account of arrest and detention of the husband and his

family members respondent has treated the appellant with utmost

mental cruelty and the appellant has suffered agony. It will not be

out of place to mention that the complaint filed by the wife was

calculatedly designed in as much as it was a sort of counter blast to

the divorce petition filed by the husband. The appellant had filed

divorce petition on 16.6.03 whereas the complaint was lodged by

the respondentwife

on 11.7.03.

5. Learned counsel for the appellant submits that the appellant

and his family members including ladies who did not stay along

with the appellant were arrested and detained causing utmost

humiliation and embarrassment and agony to the appellant. This

solitary incidence would itself constitute mental cruelty even if

other circumstances are not taken into account and thus the trial

court has erred in law in dismissing the divorce petition. Para 29 of

the judgment of family court deals with this aspect of the matter by

observing :

“There can not be absolutely two opinions regarding

legal proposition that if the wife filed false criminal cases

against the husband, her conduct does amount to causing

mental cruelty and torture to him, therefore, the husband

becomes entitled for a decree of divorce. The necessary

condition for constituting such legal cruelty is that the wife

has indulged into making false and reckless allegation by

filing false complaint to the police. A singular complaint filed

by wife under section 498A of IPC against the husband and

his family members can not indicate the tendency of wife to

indulge into making such false allegation.”

We fail to understand the logic behind the reasoning adopted by

the family court to hold that a singular complaint of this nature

under section 498A of IPC resulting in arrest and detention of the

family members and relatives thereby causing utmost

embarrassment, humiliation and suffering does not constitute

mental cruelty. It is illogical that more than one complaint are

necessary to be filed to constitute mental cruelty. In our view,

embarrassment, humiliation and suffering that is caused on account

of arrest and detention of appellant and his family members and

relatives in a false case does constitute mental cruelty to enable the

husband to seek decree of divorce on this sole ground. In our

considered opinion, the approach of the family court is wholly

perverse and the reasoning cannot be sustained in law. In regard to

other circumstances the family court has observed :

“At the most one can infer that this conduct of the

respondent may have caused some disharmony between the

couple but in no way it can be said that it was sufficient to

constitute a mental cruelty to petitioner or his mother.”

Without deliberating on all the circumstances in detail we are of

the clear view that cumulative effect of the behaviour and conduct

of the respondent is good enough to draw an inference that

respondent has caused utmost mental pain and suffering which

constitute mental cruelty to the appellant and hence the appellant

is entitled for decree of divorce on the ground of cruelty.

6. This brings us to the consideration of question of granting

maintenance to the girl child who is aged about 8 years. The

family court in exercise of powers under section 24 had granted

interim maintenance of Rs.700/p.

m. whereas this Court by an

interim order has raised it to Rs.1000/p.

m. The appellant so also

the respondent are both gainfully employed. They are earning in

the range of Rs.5000 to 7000 per month each. The child is in

custody of the respondentmother.

Learned counsel for the

appellant on instructions from his client who is present in the court

submitted that the appellant would pay a sum of Rs.1.5 lacs

towards permanent alimony for the maintenance of child. Having

found the said amount insufficient we persuaded the counsel for

the appellant to raise the amount so that monthly interest on the

said amount works out in the range of Rs.2000 per month. The

mother of the appellant has come forward to contribute further

sum of Rs.1.5 lacs towards maintenance of the child. In our view if

the appellant pays sum of Rs.3 lacs by way of permanent alimony

for the maintenance of child the said amount if kept in fixed

deposit can fetch interest of Rs.2000/per month and the same

could be utilized by the respondent for upbringing of the daughter.

In the result we pass the following order:

(i) The marriage of the appellant and respondent stands dissolved by a decree of divorce under section 13(1)(ia);

(ii) The appellant shall pay sum of Rs.3 lacs by way of permanent alimony for the maintenance of the girl child. The said amount of Rs.3 lacs shall be invested in fixed deposit in a nationalized bank and the respondent is permitted to withdraw the interest accrued thereon quarterly. The amount of Rs.3 lacs shall be invested in the fixed deposit within two months from today in the name of the minor child and the respondent would be shown as her guardian;

(iii) The said sum of Rs.3 lacs shall be kept invested in fixed deposit till the child attains majority.

(iv) Appeal is allowed with no order as to costs.

 

At this stage the learned counsel for the respondent seeks stay of this order. Having regard to the peculiar facts and circumstances we do not find any reason to stay the impugned order. Hence the prayer is rejected.