Friday, August 16, 2013

want to know of DUBAI divorce, maintenance, guardianship law, read this MUMBAI HC judgement !!! yes I said MUMBAI HC and NOT some other place

* Affluent husband and wife fight and go to court
* Wife takes kid to Dubai to make it tough for dad to get visits / custody
* The father follows and tries to get visitation in Dubai
* Wife tries to take kid to Thailand
* Father gets a travel ban
* Father files for divorce at dubai, wife does NOT even appear
* Wife runs to mumbai court trying to get an injuction
* Mumbai HC  refuses injunction !!
* a well reasoned order where the rights of parties in Dubai law and HMA are compared !!
Sandip Shankarlal Kedia ...Petitioner
Pooja Kedia ...Respondent
Mr. J.P. Cama, Sr. Advocate a/w. Ms. T.F. Irani
Mr. Agnel Carnerrio i/b. Mulla & Mulla for Petitioner
Mr. Ramesh T. Lalwani for Respondent
Date of Reserving the Judgment : 5th April, 2013
Date of Pronouncing the Judgment: 29th April, 2013
Rule. Made returnable forthwith.
1. The petitioner husband has challenged the order dated 28th February, 2013 of the Principal Judge, Family Court, Mumbai allowing an application of the respondent wife for injunction restraining her husband from pursuing case No. 65 of 2012 filed by him in Dubai Court for divorce and custody of child and other incidental reliefs and from filing any further proceedings in that Court. It is, therefore, an application popularly called an application for antisuit injunction.
2. The parties have been married since long. They have a child, 7 years old.
3. The wife has claimed cruelty and harassment at the hands of her husband due to which she claims to have been constrained to have taken the child to Dubai for bringing him up in a congenial atmosphere. This has been since July, 2010. The husband has claimed that this was a malafide action to deprive him of the custody and access to his son and constrained him to file a Habeaus corpus Petition, the orders in which came to be breached. After the parties litigated in this Court and the Supreme Court, since the child was by then in Dubai, the husband claims that he was constrained to go to Dubai to take access to his child. Access has been provided on certain dates as per certain past orders. The child has continued to live in Dubai.
4. The husband has also obtained a residence visa in Dubai. He is shown to be a perfume salesman there. The husband, however, has a number of family businesses in Mumbai. The wife has shown that he essentially lives in Mumbai and visits Dubai at times.
5. Both the parties are Indian Nationals.
6. Both the parties have filed various proceedings in Dubai as well as in Mumbai and thereafter appeals therefrom. The main litigation between the parties are in respect of judicial separation claimed by the wife in Mumbai and divorce claimed by the husband in Dubai. They both have consistently agitated in respect of their child also. The wife has custody and the husband has claimed access in India. The husband has thereafter claimed what is called the travelban order against the child. The husband claims that that was because the wife initially took the child away from Mumbai to Dubai and constrained the husband to sue up to the Supreme Court to obtain access to the child. When that was through, she sought to remove the child from Dubai. The travelban order has allowed the child to be in Dubai and the husband to claim access to the child in Dubai. The wife has moved various applications for lifting the travelban order, several of which have been refused. After at least 5 such attempts, an order was granted for allowing the child to come to India, but was sought to be taken instead to Thailand which act came to be averted just in time. The husband, therefore, claims to be justified in procuring the travelban order, which the wife claims to be impinching her freedom of travel and consequently her life and liberty.
7. The jurisdiction of the Mumbai Court in respect of the wife's petition for judicial separation has been confirmed; that petition would go on in Mumbai. The wife has challenged the jurisdiction of the Court in Dubai in respect of the husband's petition for divorce and has filed the antisuit injunction application which has come to be granted under the impugned order.
8. The parameters of the grant of such injunction would have to be considered upon the law relating to injunctions under the CPC being Order 39 Rule 1 and Section 151 of the CPC as also Section 41(a) of the Specific Relief Act, 1963.

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