C v D & Another

JurisdictionSingapore
JudgeWoo Bih Li JC
Judgment Date02 May 2002
Neutral Citation[2002] SGHC 98
Published date19 September 2003
CourtHigh Court (Singapore)
Plaintiff CounselImran Khwaja and Michelle Jeganathan (Tan Rajah & Cheah)
Defendant CounselJohn Thomas and Anita Thomas (Colin Ng & Partners)

Judgment

GROUNDS OF DECISION

Introduction

1. The Petitioner C and the Respondent D are Indian citizens. They were married in India on 27 August 1976 under the Hindu Marriage Act. After the marriage, C and D (‘the Parties’) resided in London where C qualified as a Chartered Secretary and D qualified as a Chartered Accountant.

2. They resided in India from 1984 to 1989 or 1991. In the meantime, two sons of the marriage were born (a) A on 8 April 1985 and (b) B on 9 February 1990.

3. Between 1989 or 1991 to 1995, the couple and the children moved to Hong Kong as D was working there as an employee of Standard Chartered Bank.

4. At the end of 1995 or early 1996, they moved from Hong Kong to Singapore where D was still working as an employee of Standard Chartered Bank.

5. In June 1999, C’s mother passed away in India and she went to India with the two children for the funeral.

6. According to C:

(a) After her mother’s funeral, she went to London and Paris with the two sons for a holiday as D had told her he was going to Australia with E to attend a course.

(b) In London, she learned that D and E were spending time together at Sea Gypsy Resort in Cysia.

(c) E was also staying at the matrimonial home in Singapore.

(d) D had sent an e-mail dated 31 July 1999 to end the marriage.

(e) She could not return to Singapore and stayed temporarily in India with her sister.

7. Except for two short trips back to Singapore in mid-October 1999 and July 2000, C and the two children have resided in India since July 1999. The children study at The British School in New Delhi, India.

8. Sometime between July/August and October 1999, C and D entered into negotiations to resolve the question of a divorce and other issues like division of property, custody of and access to the children and maintenance. C’s brother F participated in the negotiations. He is the managing director of a multinational company in India, Reckitt and Coleman Ltd, and is resident in India. The negotiations were carried out through e-mail, faxes and meeting(s) in New Delhi, India.

9. A settlement was achieved and on 14 or 15 October 1995, the Parties filed a joint Petition for Divorce by Mutual Consent under Section 13-B(1) of the Hindu Marriage Act, 1955 (Act No. 25 of 1955) as amended by the Marriage laws (Amendment) 1976. This is No. 1139/99 (‘the First Petition’). This was filed in the Court of the District Judge, Delhi, India. The terms of the settlement are set out in the First Petition which was signed by each of the Parties. It covers Permanent Alimony under which immovable and moveable property are dealt with, custody of the children which includes visiting rights for D and maintenance and support of the children.

10. Paragraphs 10, 11 and 12 of the First Petition state that the settlement contains the entire understanding of the Parties, there is no collusion between them and the consent of either party has not been obtained by any force, fraud, undue influence or coercion whatsoever. There were supporting affidavits signed by each of the Parties. There was also a Joint Statement signed by both the Parties confirming, inter alia, that their consent for divorce was without any force, fraud or undue influence.

11. The First Motion with regard to the Petition was heard on 16 October 1999 by the District Judge Shri M.C. Gary. The District Judge allowed the First Motion and stated that the Parties could apply for their Second Motion (Hearing) if they failed to patch up their differences in the meantime.

12. The First Petition was then amended to correct the unit number of the permanent residential address of C in New Delhi, India.

13. On 25 May 2000, C filed two applications. The first was to withdraw her consent to the First Petition and to seek the dismissal thereof on the basis that she was compelled to sign it under extreme duress, coercion and undue influence form D. The second application was for an injunction to restrain D from giving effect to the terms of the settlement pending the hearing of and decision on the first application.

14. On 25 July 2000, the District Judge decided that it was for C to decide whether to join in the Second Motion (Hearing) in respect of the First Petition and no order was necessary in respect of her application to withdraw her consent and to dismiss the First Petition.

15. D then filed another Petition No. 816/2000 on 26 or 27 July 2000. This was also under Section 13-B(2) of The Hindu Marriage Act 1955 (‘the Second Petition’). This was the same ground as the First Petition i.e that the Parties have been living separately for one year or more and the divorce is sought by consent. He also filed two applications. The first was for directions to compel C to sign and verify the Second Petition. The second application was for visiting rights in respect of the two children.

16. The Second Petition and the application to compel C to sign the Second Petition were dismissed by the District Judge on 29 July 2000 on the basis that it was not maintainable as it was not signed by C and there was no procedure to compel her to sign it. D then filed an appeal on 2 September 2000 to the High Court of Delhi.

17. On 4 September 2000, C filed the present divorce petition in Singapore. C’s petition in Singapore is based on the alleged adultery of D with the Co-Respondent E and on the alternative ground that the marriage has broken down irretrievably in that D has behaved in such a way that C cannot reasonably be expected to live with him.

18. On 28 September 2000, D filed Summons-in-Chambers 751910/2000 in Singapore to seek an order declaring that the Singapore court should not exercise jurisdiction over D and E on any issue under the divorce petition and that the proceedings be stayed or dismissed, alternatively, that Singapore is not an appropriate forum and that the proceedings under the divorce petition be dismissed or stayed on the ground of forum non conveniens.

19. On 29 September 2000, the papers for D’s appeal to the High Court of Delhi were served on C, after some earlier unsuccessful attempts at service.

20. Subsequently, C also applied in Singapore by way of Summons-in-Chambers 650813/2001 filed on 4 May 2001 for an order for interim maintenance for herself and the two children on the basis that the maintenance provided by D, presumably pursuant to the settlement, is inadequate. This application has not been heard presumably in the light of D’s application for a stay.

21. On 6 September 2001, the High Court of Delhi dismissed D’s appeal.

22. On 14 February 2002, District Judge Ms Yap Siew Yong dismissed D’s application with no order as to costs. On 19 February 2002, D filed an appeal against this decision to our High Court and the appeal has come before me. Pending the conclusion of arguments and my decision, I ordered an interim stay of the existing proceedings in Singapore by C.

23. In the meantime, D has applied for Special Leave to Petition to the Supreme Court of India in respect of the decision of the High Court of Delhi and on 22 March 2002, he was allowed such Special Leave. The Special Leave was granted by two judges of the Division Bench of the Supreme Court of India. At the hearing of the application for Special Leave, D’s Counsel also sought an interim order to restrain C from proceeding with her divorce petition in Singapore but this was not granted. According to his Indian Counsel, the Supreme Court however was of the view that his appeal should be disposed of urgently and directed the parties to apply to the Chief Justice of India for the appeal to be heard on an urgent basis.

24. I would add that prior to the settlement, D had sought to persuade C to come to Singapore to resolve the question of the divorce and issues arising therefrom. He had wanted the divorce proceedings to be in Singapore. While C did not expressly say that she wanted the divorce proceedings to be in India, the fact is she declined to return to Singapore to deal with such issues. Also, her e-mail dated 5 August 1999 did seem to suggest that she preferred such matters to be dealt with in India. The settlement was with a view to the Parties commencing divorce proceedings in India but thereafter C has taken the position that the settlement is not valid and Singapore is the more appropriate forum while D says India is the more appropriate forum to decide on the divorce and issues arising therefrom.


My decision

25. Section 93(1) and (2) of our Women’s Charter (Cap 353) states:

    Jurisdiction of court in matrimonial proceedings

    93(1) Subject to subsection (2), the court shall have jurisdiction to entertain proceedings for divorce, presumption of death and divorce, judicial separation or nullity of marriage only if either of the parties to the marriage is -

    (a) domiciled in Singapore at the commencement of the proceedings; or

    (b) habitually resident in Singapore for a period of 3 years immediately preceding the commencement of the proceedings.

    (2) In proceedings for nullity of marriage on the ground that the marriage is void or voidable, the court may, notwithstanding the requirements in subsection (1) are not fulfilled, grant the relief sought where both parties to the marriage reside in Singapore at the time of the commencement of the proceedings.’

26. C’s divorce petition in Singapore is based on the ground that both D and her have been habitually resident in Singapore for a period of three years immediately preceding the filing of her divorce petition here. It seems to me that she was not habitually resident in Singapore from July 1999. After she went to India for her mother’s funeral, she continued to reside there because of her marital woes. Be that as it may, it is not disputed that D was habitually resident in Singapore for a period of three years immediately preceding the filing of C’s divorce petition.

27. Although D’s first prayer in his application had sought a declaration, his application was...

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    ...relating to the termination of the marriage as the court: Low Wing Hong Alvin v Kelso Sharon Leigh [2001] 1 SLR 173 at [20]–[21]; C v D [2002] SGHC 98 at [57]55. A party cannot choose to litigate particular claims for relief in foreign matrimonial proceedings (e.g., division of assets) and ......
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