When between the same parties, litigating on the same subject matter, and based on the same cause of action, only one Court has jurisdiction, it is said to have exclusive jurisdiction. However, if more Courts than one have jurisdiction over the same matter, they are called Courts of concurrent jurisdiction.
In such circumstances, the criteria to determine which is the more appropriate jurisdiction for the adjudication of the matter, either party can elect to restrain the other party, not to proceed with the same litigation in the other non preferred jurisdiction.
In such process, Courts in different jurisdictions cannot restrain each other. However, the same parties appearing before both the Courts in different jurisdictions can seek an injunction to restrain the other party, from proceeding in the other non- preferential jurisdiction with the same matter.
Such suits seeking restraint of proceedings in one jurisdiction are called Anti-Suit Injunctions.(Chapter 23 of the book ‘The Global Indians and The Law’ written by Renowned authors, Shri Anil Malhotra and Ranjit Malhotra)
The authors further referred to anti-suit actions in matrimonial litigation as follows:
In this backdrop, this new dimension of matrimonial litigation is coming in practice in the arena in the shape of anti-suit injunctions. They are the remedy against filing of suits in 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-suit injunction petition 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 ground of such Suits in India. However, even the reverse application now finds popular practice, making anti-suit injunctions a two-way street.
The above definition was referred by the High Court of Kerala in a case titled GEORGE KOSHY vs SARAH KOSHY in which the court was hearing an appeal preferred against the order of dismissal passed the Family Court whereby Anti-Suit injunction filed by the appellant to restrain the respondent from proceeding with the divorce petition filed by her in Australia was dismissed for having no jurisdiction to entertain the matter. The said order is under challenge before the High Court.
The Court observed, anti-suit injunction is instituted to prevent the opposite party from instituting or continuing with the proceedings in another Court in domestic or foreign country.
In Modi Entertainment Network and Ors.v. W.S.G. Cricket PTE Ltd [AIR 2003 SC 1177], the Hon’ble Supreme Court examined the general principles related to anti-suit injunction by Courts. It is appropriate to refer the relevant portion of the said judgment which reads as follows:
The Courts in India like the Courts in England are Courts of both law and equity. The principles governing grant of injunction an equitable relief-by a Court will also govern grant of anti-suit injunction which is but a species of injunction.
When a Court restrains a party to a suit/proceeding before it from instituting or prosecuting a case in another Court including a foreign Court, it is called anti-suit injunction.
It is a common ground that the Court in India has power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. This is because Courts of equity exercise jurisdiction in personam.
However, having regard to the rule of comity, this power will be exercised sparingly because such an injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another Court.
The Apex Court in a recent Order in Madhavendra L.Bhatnagar v. Bhavna Lall [(2021) 2 SCC 775] held that anti-suit injunction can be issued if the other party had already resorted to proceedings before another court including outside India.
In Vivek Rai Gupta v. Niyati Gupta [(2018) 17 SCC 21], the Apex Court particularly referred to anti-suit injunction in matrimonial disputes.
The Court after referring to various judgments on the subject observed that
We do not have any difficulty in holding that anti-suit injunction is maintainable in view of the power to grant injunction in matrimonial disputes by the family court. This power is traceable to Explanation (d) to Section 7(1) of the Family Courts Act. However, the Family Court has to be very cautious in granting the relief. As held by the Apex Court in Dinesh Singh Thakur’s case (supra) parameters as laid down in Section 41 of the Specific Relief Act, 1963 are to be considered while adverting to the reliefs sought. Entertaining a suit and granting reliefs are different aspects of the proceedings. The Family Court in this matter appears to have mixed up the entire issue without adverting to its jurisdiction to entertain such petition.
The Court ultimately set aside the order of the Family Court and further direct the Family Court to number the case and hear the parties on reliefs sought in the matter.