An interesting off shoot emerged in 2013 in diplomat Devyani Khobragade’s case . The Delhi High Court had issued an ex parte anti-suit injunction restraining her former maid Sangeeta Richard, and her husband Phillip Richard, from “initiating any action or proceeding or filing any suit or claims” against diplomat Devyani, before any Court/Tribunal/ Forum in any country outside India, in any litigation, arising out of or in connection with the employment of the said maid in USA. This class of litigation in the realm of Conflicts of Laws under Private International Law, by legal parlance, is labelled as an “Anti-suit injunction” and gives rise to an Order issued by a Competent Court in India, which prevents an offending party from commencing or continuing a proceeding in another jurisdiction or foreign forum. The Foreign Court cannot be and is not restrained in such process, as the Indian Courts cannot injunct a Foreign Court. However, if the opposing party contravenes such an Order, a Contempt of Court order 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, to avoid conflicting Judgments. Most often, its actual success is difficult. Regardless, it is a developing jurisprudence in a country with a 30 million diaspora in 200 countries over the globe, contributing immensely to cross border litigations.
Interestingly, Devyani Khobragade had already been arrested in USA in 2013, creating a diplomatic furore, with cross allegations of human rights violations and domestic abuse charges. However, in 2014, a US Court had itself dismissed visa fraud charges against Indian diplomat Devyani Khobragade, whose arrest and strip-search in New York, had sparked a bitter diplomatic row which was the very foundation of the relief sought in the anti-suit injunction. US Judge Shira Scheindlin dismissed the case in 2014, holding that diplomat Khobragade was granted full diplomatic immunity when she was named a Counselor to India’s mission to the UN. The matter was put to rest.
This class of litigation is now being also used in matrimonial matters as well. It is claimed that Hindu marriages said to be made in heaven, and solemnized in India ,are now wantonly dissolved abroad. Sad but true, this is a practical reality. 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 inter- se marital 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, (1994) proposed feasibility of enacting a legislation to ensure that no marriage between an NRI and an Indian, which had taken place in India, may be annulled by a foreign Court. Earlier in Y. Narasimha Rao (1991)the Apex Court spelt out guidelines for recognition of foreign Court matrimonial Judgments, to decide, if Hindu marriages solemnized in India were said to be dissolved by unenforceable foreign decrees. The Supreme Court in 2013, in SondurGopal, 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, which had been solemnized when they were domiciled in India. It was held that where both parties are Hindus by religion ,and have a permanent domicile in India, a matrimonial cause of action would be maintainable in India ,even if they reside outside India.
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, is the main the ground of such Suits in India. However, even the reverse application now finds popular practice making anti-suit injunctions a two way street. It may be added that in metropolitan cities such anti-injunction suits are now on the rise in respect of parallel matrimonial and child custody disputes in India where one spouse resides, and, in a foreign jurisdiction where the other spouse resides or is domicile.
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. Issues relating to applicability of Indian law, in cases such as cited above and the authority of Indian Courts to adjudicate such disputes executed in India between employees and diplomats or spouses, as also norms of judicial comity require serious deliberation to avoid conflict of jurisdictions. Personal disputes originating on Indian soil must be determined in India. 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. Anti-Suit Injunctions are perhaps the only answer, if there is an impending risk of conflicting Judgments and if the proceedings in the Court of foreign jurisdiction would perpetuate injustice or usurp the jurisdiction of a domestic Court. A blind eye cannot overlook vexatious or oppressive litigation. Thereafter, violation of an anti-suit injunction passed against an offending party should be seriously pursued in contempt jurisdiction. Surely, Indian 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.
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