Partly allowed

Archana Pius v. Shine

Kerala HC3 Nov 2022OP (FC)/444/2022

Case brief

AI extract

What is this about?

This writ petition sought a direction to the Family Court to dispose of an interim injunction application and a temporary anti-suit injunction against foreign proceedings. The bench held that while maintaining the injunction claim, the High Court cannot intervene unless there is grave dereliction of duty. Instead, it directed the Family Court to decide the interim application within two weeks and

What did the court decide?

Directed the Family Court to dispose of the interim injunction application within two weeks; vacated the interim stay granted in this petition.

Archana Pius Vs Shine — Writ and Judicial Review | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 3^RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 OP (FC) NO.444 OF 2022

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FROM I.A.NO.2 OF 2022 IN O.P (OTHERS) NO.373 OF 2022 ON THE FILE OF THE FAMILY COURT,KOLLAM

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PETITIONER/PETITIONER:

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ARCHANA PIUS AGED 49 YEARS D/O.PIUS JOSEPH PUTHENPURACKAL, MANGAD P.O, KANDACHIRA, MANGAD - 680584 (NOW RESIDING AT 20 HOMEVIEW ROAD,BRAMPTON,ONTARIO,CANADA)

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BY ADVS. JOHNSON GOMEZ PARSHATHY S.R. S.BIJU (KIZHAKKANELA) SANJAY JOHNSON JOHN GOMEZ MOHAMED SHEHARAN SREEDEVI S.

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RESPONDENT/RESPONDENT

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SHINE AGED 49 YEARS S/O.V.GOPALAN NAIR, NIRMALYAM, PUTHEN MADOM, THEVALLY CHERRY, KOLLAM WEST VILLAGE, THEVALLY P.O - 691009 (NOW RESIDING AT 206 GRULKE STREET KITCHENER, ONTARIO, CANADA)

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BY ADVS. K.P.SURESH KUMAR R.ANIL R S.DILEEP(K/48/1987)

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(FC) No.444 of 2022

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J U D G M E N T

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Ajithkumar, J

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This Original petition under Article 227 of the

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Constitution of India is filed by the petitioner in O.P (Others) No.373 of 2022 on the file of the Family Court, Kollam. She seeks a direction to the Family Court, Kollam to consider Ext.P2, an application filed by her seeking a temporary prohibitory injunction. The petitioner also seeks to issue an order of injunction restraining the respondent from continuing with any proceedings before the Courts in Canada pertaining

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to the disputes in connection with marriage between the petitioner and the respondent.

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On 08.08.2022, notice was directed to be served on the respondents. An interim order of stay was granted for a period of one month. On 31.08.2022, the said order of stay was extended until further orders.

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Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

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Marriage of the petitioner and the respondent was solemnised on 11.02.1999. They have two children. The

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O.P(FC) No.444 of 2022

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petitioner has been working as a nurse in Canada. The respondent also is now in Canada. Following marital discord, there arose several litigations between them in India and Canada. Petitioner therefore filed O.P(Others) No.373 of 2022 before the Family Court, Kollam seeking an anti-suit injunction restraining the respondent from filing or continuing any proceedings against the petitioner in the Courts in Canada in relation to the marriage between them or their properties. A copy of the said original petition is Ext.P1. The petitioner also filed an interlocutory application, Ext.P2 in that O.P seeking a temporary anti-suit injunction in the same terms.

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Ext.P2 application was filed before the Family Court, Kollam on 29.07.2022. The grievance of the petitioner is that said petition is yet to be considered by the Family Court and in the meantime, the respondent has been pursuing the litigations he has initiated before the Superior Court of Justice, Ontario, Canada. The petitioner would contend that unless an injunction as prayed in Ext.P2 application is granted, the petitioner will be put to irreparable injury and loss. Therefore she seeks a direction for speedy disposal of

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O.P(FC) No.444 of 2022

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Ext.P2 application.

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The learned counsel appearing for the respondent

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would submit that this original petition as well as O.P(Others) No.343 of 2022 filed before the Family Court, Kollam are not maintainable. The learned counsel also would submit that an anti-suit injunction is governed by the same principle applicable to an injunction that could be ordered under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908 and the petitioner is disentitled to get an anti-suit injunction so as to restrain the respondent from initiating or prosecuting litigations.

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7. In Dinesh Singh Thakur v. Sonal Thakur [AIR

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2018 SC 2094] the Apex court held that the Courts in India have power to issue anti-suit injunction against a party over whom it has personal jurisdiction. It is however observed that the Courts shall be cautious and careful while considering such matters and an anti-suit injunction should be granted only sparingly. In Modi Entertainment Network & others v. W.S.G Cricket PTE.Ltd. [AIR 2003 SC 1177], the Apex Court laid down parameters to be considered while granting

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O.P(FC) No.444 of 2022

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an anti-suit injunction in paragraph No.28 of the judgment. Following the principles of law laid down by the Apex court, this court in George Koshy v. Sarah Koshy [ILR 2021 (3) Ker 122] , held that applications for anti-suit injunction are maintainable in view of the power to grant injunction of the Family Courts in matrimonial disputes and that the power is traceable to Explanation (d) to Section 7(1) of the Family Courts Act, 1984.

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The learned counsel appearing for the respondent does not refute the submissions of the learned counsel for the petitioner regarding powers of the Family Court to grant antisuit injunction. The learned counsel for the respondent however by placing reliance on the decision in Madhavendra L Bhatnagar v. Bhavna Lall [(2021) 2 SCC 775] contended that if the other party had already resorted to proceedings before another Court including outside India, an anti-suit injunction cannot be issued even if the fact situation so warrants.

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O.P (Others) No.373 of 2022 was filed by the petitioner for getting a decree of anti-suit injunction. I.A No.2

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O.P(FC) No.444 of 2022

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of 2022, Ext.P2 was filed by her seeking a temporary injection of the same kind. When that matter is pending before the Family Court, Kollam, she has approached this Court by filing this original petition, seeking not only a direction for speedy disposal of Ext.P2, but also a temporary anti-suit injunction restraining the respondent from filing or continuing any proceedings against the petitioner before any Court in Canada.

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The supervisory powers vested in this Court under Article 227 of the Constitution of India can be exercised only in exceptional situations. In Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385] , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the

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O.P(FC) No.444 of 2022

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well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

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In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence

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O.P(FC) No.444 of 2022

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under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

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Jurisdiction of the High Court under Article 227 was examined in detail by this Court in Subaida v. Deputy Tahsildar (RR), Thrissur District and others [2019 KLT

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SN 68] where it was held,

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“The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases, but should be directed for promotion of public confidence in the administration in the larger public interest, whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of

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O.P(FC) No.444 of 2022

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the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court.”

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When Ext.P2 application is pending before the Family Court, Kollam, this Court cannot consider the similar relief sought by the petitioner. Such an endevour will amount to making inroads into the powers of the Family Court. In such circumstances, we are of the view that the second relief prayed in the original petition is not liable to be entertained. However, in the light of the urgency pointed out by the petitioner, it is only appropriate to direct the Family Court to dispose of Ext.P2, I.A No.2 of 2022 in O.P (Others) No.373 of 2022 within a reasonable time.

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Accordingly we dispose of this original petition in the following terms:

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O.P(FC) No.444 of 2022

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i) Both parties shall appear before the Family Court, Kollam on 16.11.2022.

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ii) Family Court, Kollam is directed to dispose of I.A No.2 of 2022 in O.P(Others) No.373 of 2022 within a period of two weeks from 16.11.2022.

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iii) The Family Court shall decide I.A No. 2 of 22 in O.P (Others) No.373 of 2022 strictly in accordance with law and untrammelled by any of the observations in this judgment.

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iv) The order of interim stay granted in this original petition is vacated.

Sd/-

ANIL K.NARENDRAN

JUDGE

Sd/-

P.G. AJITHKUMAR JUDGE

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O.P(FC) No.444 of 2022

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APPENDIX OF OP (FC) 444/2022

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PETITIONER'S EXHIBITS

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Exhibit P1 A TRUE COPY OF THE ORIGINAL SUIT AND THE DOCUMENTS IN OP NO. 373 OF 2022 FILED BEFORE THE FAMILY COURT KOLLAM

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Exhibit P2 A TRUE COPY OF THE APPLICATION FOR TEMPORARY INJUNCTION IA NO. 2 OF 2022 IN OP (OTHERS) NO. 373 OF 2022 BEFORE THE FAMILY COURT, KOLLAM

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Exhibit P3 A TRUE COPY OF THE CASE STATUS OF OP (OTHERS) NO.373 OF 2022 PUBLISHED IN E-COURTS

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Exhibit P4 A TRUE COPY OF THE PETITION FILED BY THE RESPONDENT BEFORE THE SUPERIOR COURT OF JUSTICE, ONTARIO, CANADA, ON 04.07.2022 AS CASE FILE NUMBER FS -220067-00

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ANNEXURE P5 TRUE COPY OF THE OP NO. 34 OF 2021 FILED BY THE PETITIONER AGAINST THE RESPONDENT BEFORE THE FAMILY COURT ERNAKUALM

Archana Pius v. Shine

Case brief

What is this about?

What did the court decide?

Archana Pius v. Shine

Case brief

What is this about?

What did the court decide?

What the court decided

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