Mala Shukla v Jayant Amritanand Shukla (Danialle an Co-respondent)

• Jurisdiction: Singapore
• Judgment Date: 02 May 2002
• Date: 02 May 2002
• Docket Number: Divorce Petition No 2792 of 2000
• Court: High Court (Singapore)

Mala Shukla

Plaintiff

and

Jayant Amritanand Shukla (Danialle An, co-respondent)

Defendant

[2002] SGHC 96

Woo Bih Li JC

Divorce Petition No 2792 of 2000 (Registrar's Appeal No 720022 of 2002)

High Court

Conflict of Laws–Natural forum–Stay of proceedings on ground of forum non conveniens–Parties both Indian citizens–Filing of divorce petition in India by both parties–Divorce proceedings underway in India–Wife filing divorce petition in Singapore–Whether Singapore court can entertain petition–Whether India or Singapore more appropriate forum–Principles governing grant of stay–Whether petitioner losing personal and juridical advantages if stay given a sufficient reason for stay of petition in Singapore–Whether still having money in Singapore a factor–Whether multiplicity of actions a decisive factor for stay of petition

The petitioner (“Mala”) and the respondent (“Jayant”) arrived at a settlement, which contained terms relating to the division of property, custody and maintenance, with a view to filing a petition for divorce by consent in India. The parties then filed a joint petition, which incorporated the terms of the settlement, in India. Mala later sought to dismiss it on the basis that she had not consented voluntarily. A series of applications and petitions followed which eventually led to Jayant filing an appeal to the Supreme Court of India.

Mala then filed the present divorce petition, based on Jayant's adultery with the co-respondent. Jayant unsuccessfully sought to stay the action on the ground of forum non conveniens, ie that Singapore was not the appropriate forum to decide on the divorce and related ancillary matters. He appealed.

Held, allowing the appeal and ordering a stay:

(1) Although Mala was neither domiciled in Singapore nor habitually resident in Singapore for the three years immediately preceding the filing of the divorce petition, the Singapore court had jurisdiction under s 93 (1) (b)of the Women's Charter (Cap 353, 1997 Rev Ed) to entertain the petition as Jayant satisfied the requirement of habitual residency: at [25] and [26].

(2) A stay on the ground of forum non conveniens would ordinarily be refused unless an available and more appropriate forum existed. If so, the court would ordinarily grant a stay unless justice required that it should not be granted: at [28].

(3) As Jayant was given leave to appeal to the Supreme Court of India, the appropriate approach was to await its outcome. Mala had consented, whether voluntarily or otherwise, to the proceedings in India, and Jayant was exercising his right of appeal. The proceedings were also not in the initial stages. While there was no guarantee that the court would grant a divorce if his appeal succeeded, it was sufficient if the decision was likely to have an effect on a divorce petition filed in India. Even if his appeal failed, Jayant could file a fresh petition on grounds other than consent: at [41] and [42].

(4) India was an available and more appropriate forum. First, Mala could petition for a divorce by consent in India, and in any event, Jayant admitted to committing adultery. Second, as the settlement was made with a view towards the filing of a divorce petition in India, India was the most appropriate forum to determine whether the parties had acted on the settlement and whether Mala entered into it voluntarily. Third, they did not have any immovable property in Singapore, and that their moneys were controlled from Singapore was a tenuous connection. Fourth, the Indian courts should make the custody orders as their children resided in India and their parents were Indian citizens. Fifth, while the Indian court might wish to consider the family's previous living standard in Singapore in making maintenance orders, it might also want to consider the cost of living in India where Mala and the children had relocated: at [46], [47], [50], [52], [54], [55] and [56].

(5) Mala would not lose legitimate personal or juridical advantages if a stay was granted. First, that divorce proceedings were presumably slower in India or that Indian law did not recognise a wife's contribution as homemaker were insufficient reasons for refusing a stay. Second, if there were still moneys in Singapore, an Indian court order could be enforced directly in Singapore by either registering it, if it related to the payment of a sum of money and came from a superior court in India, or by the commencement of fresh proceedings in Singapore. These steps did not result in multiplicity of proceedings: at [59], [60] and [61].

[Observation: Lis alibi pendens referred to the situation where litigation involving the same parties and issues continued simultaneously in two countries. In such a situation, the choice was between either trials in Singapore and abroad (if a stay was refused), or trial abroad (if a stay was granted). The former situation was undesirable as it involved more expense and inconvenience to the parties and could also lead to two conflicting judgments: at [38].

A stay would be refused if there was no country which was a natural forum for the trial, even though this meant a multiplicity of proceedings. The weight to be attached to the factor of multiplicity of proceedings depended on the circumstances of the case. It was not a decisive factor in the sense of automatically making a foreign forum clearly more appropriate and shifting the burden of proof to the claimant to justify trial in Singapore: at [39].]

Low Wing Hong Alvin v Kelso Sharon Leigh [1999] 3 SLR (R) 993; [2001] 1 SLR 173 (refd)

PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Ltd [2001] 1 SLR (R) 104; [2001] 2 SLR 49 (folld)

Women's Charter (Cap 353, 1997 Rev Ed) ss 93 (1), 93 (2)

Marriage Act 1955 (India) s 13-B (2)

Imran Khwaja and Michelle Jeganathan (Tan Rajah & Cheah) for the petitioner

John Thomas and Anita Thomas (Col in Ng & Partners) for the respondent.

Judgment reserved.

Woo Bih Li JC

Introduction

1 The petitioner Mala Shukla (“Mala”) and the respondent Jayant Amritanand Shukla (“Jayant”) are Indian citizens. They were married in India on 27 August 1976 under the Hindu Marriage Act. After the marriage, Mala and Jayant (“the parties”) resided in London where Mala qualified as a chartered secretary and Jayant 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) Zorawar on 8 April 1985; and (b) Sikandar on 9 February 1990.

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

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

6 According to Mala:

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

(b) In London, she learned that Jayant and Danialle were spending time together at Sea Gypsy Resort in Malaysia.

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

(d) Jayant 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, Mala 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, Mala and Jayant 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. Mala's brother Pranab Barna (“Pranab”) 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...