HHJ Moradifar. Application by the husband for an anti-suit injunction to prevent the wife from pursuing, participating or otherwise continuing any applications for periodical payments for the children of the family or any other applications relating to their marriage in the courts of India. The application was resisted by the wife, and their two children who were made parties to the proceedings. The children were represented by the Official Solicitor to protect the children’s rights to protection and independent advice, which were required given the parental conflict. The issues before the court were the court’s jurisdiction, the wife’s conduct in pursing litigation in India and the overall conduct of the parties and whether, in all the circumstances, the courts of England and Wales should exercise discretion to grant the anti-suit injunction.

Background

The parties were of Indian heritage and had been married for 14 years. The children lived in England where they attended privately funded schools. Following separation, the parties travelled to India with their children. Whilst there the extended family’s attempts to reconcile the parties failed, which fuelled litigation in the Indian courts and criminal investigations that involved the parties and members of the extended family; [7]. It was common ground that the husband maintained the mortgage on the former family home where the children and the wife continued to reside, but he had not paid any child maintenance. An interim order was made preventing the husband and wife from pursuing further litigation outside of England and Wales. The court had the benefit of a single joint expert report dealing with the applicable law in India and enforcement of orders made in this jurisdiction in India.

The judgment contains a brief summary of the relevant legal principles relating to anti-suit injunctions; [2]–[5]. The powers of the High Court to grant such an injunction are provided in s 37 of the Supreme Courts Act 1981 (SCA 1981). The SCA 1981 provides the court with a wide discretion to grant an interlocutory or final injunction where it is 'just and convenient to do so'. Granting an anti-suit injunction on the basis that England is the forum and conveniens is no longer appropriate, and the court must be satisfied that ‘the foreign proceedings are vexatious or oppressive’; [4]. Whilst the authorities that provide invaluable guidance on the powers of the court have developed mainly in the civil jurisdiction, they apply across other areas of the law including family law; [11]. The courts’ approach is dictated by which of the two broad categories the case falls into. The first is the ‘single forum cases’, which are typically identified by a contractual arrangement whereby parties have agreed to be bound by a particular jurisdiction or a course of conduct that presupposes exclusive jurisdiction. The second is the ‘alternative forum’ cases where there is no agreement on jurisdiction and the courts of different countries may exercise jurisdiction that is often founded upon the local laws to that court. In the latter case, applications to the courts in England should only be made where the courts in England and Wales are the natural forum.

Analysis and Determination

The court’s jurisdiction

This case fell squarely into the ‘alternative forum’ cases. The parties’ respective habitual residence at the time of the application and thereafter was an important point in this case. Although the parties and children travelled to India in August 2020 and remained until the summer of 2022, it was common ground that this was not intended to be a permanent relocation. The children continued to attend their schools remotely. Without hesitation, the judge found that at all material times the wife and the children were and continued to be habitually resident in England. The husband’s habitual residence had been the subject of a challenge. By a narrow margin the judge found that he continued to be habitually resident in the UK. Evidence of this habitual residence included his business being registered and run in the UK, his HMRC accounts illustrating that he was a taxpayer, tenancy agreement showing his UK home address and contact with his youngest son in the UK, which was formalised at the end of Children Act proceedings. There was no reliable evidence that could support a finding that his habitual residence had changed since returning to the UK in early 2023.

The implications of this finding was twofold. First, the courts of England and Wales had continuing jurisdiction at the time of the application for child maintenance to the Indian courts due to their residence and connections to England. Second, in line with the legislative framework, the child maintenance service had jurisdiction by reason of the parties’ habitual residence and derivation of income in England. The judge determined that the main proceedings between the parties were found to be clearly centred in England. Evidence pointing to England being the natural form included the former family home being in England, the children attending school in England with school fees being a major feature of the dispute, and the parties’ main source of income being derived from employment or business based in the UK. The parties clearly did have familial and business connections in India but that needed to be weighed in the balance.

The wife’s conduct in pursing litigation in India

The husband argued that the wife had been forum shopping and there could be no assurance that her future conduct in this litigation would not be impacted by her attempts at oppressing the husband in his legitimate attempts at resolving the dispute efficiently and expeditiously. The judge found that the wife’s application for child maintenance was understandable as it was issued at a time that she was trying to ensure that the children could continue schooling and the parents each had their obligations under Indian law. Notwithstanding this, it was found to be ill-advised as it had done nothing but to expand the gulf that separated the parties and obstruct an early resolution to the main dispute. The husband’s own conduct did not lend itself to legitimate pursuit of an equitable remedy and it was noted that his application for an anti-suit injunction was not issued promptly. Consequently, the judge did not find the wife’s conduct to be vexatious, oppressive or unconscionable.

The overall conduct of the parties and whether, in all the circumstances, the courts of England and Wales should exercise discretion to grant the anti-suit injunction

Determining this issue was no longer necessary in light of the above. Nonetheless, applying the broad remit of s 37 SCA 1981, the facts of the case did not support a conclusion that it would be ‘just and convenient’ to grant an injunction. Also, the parameters of the Matrimonial Causes Act 1973 and broad discretion afforded to the courts in England and Wales is such that any award made by the courts in India would be considered in reaching a final conclusion on the parties’ litigation. Therefore, there could be little justification for this court to interfere with the decisions of the Indian courts in any relevant litigation, including the dispute concerning the parcels of land in India jointly owned with individuals in India and the regulation and ownership of those pieces of land. The application was therefore dismissed.