TPH v TPI

• Jurisdiction: Singapore
• Judge: Kathryn Thong
• Judgment Date: 09 June 2016
• Neutral Citation: [2016] SGFC 72
• Court: Family Court (Singapore)
• Docket Number: D4169 of 2015
• Published date: 24 June 2016
• Year: 2016
• Hearing Date: 29 April 2016
• Plaintiff Counsel: K. Sathianathan and J.Jayanthi (Sathi Law Chambers)
• Defendant Counsel: Kelvin Lee and trainee (Winlex LLC)
• Subject Matter: Family law,Stay of proceedings,Forum non conveniens
• Citation: [2016] SGFC 72

District Judge Kathryn Thong:

In these grounds of decision, I set out my reasons for dismissing the Defendant Wife’s (“DW”) application for a stay of divorce proceedings in Singapore on the grounds of forum non conveniens.

In sum, the DW’s case was that the proceedings she had taken out in India for the “restitution of conjugal rights” (“the Restitution Proceedings”) would give rise to a lis alibis pendens and there was a risk of conflicting decisions between the Indian and Singapore courts. The Restitution Proceedings, coupled with the connecting factors to India, warranted a stay of the Singapore divorce proceedings taken out earlier by the Plaintiff Husband (“PH”).

My findings are that there is no lis alibis pendens, and that the connecting factors raised by the DW were insufficient in the overall analysis to discharge her burden under the locus classicus of Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”) of demonstrating that India is clearly and distinctly the more appropriate forum.

The salient facts

The couple has been married since August 2003 when they registered their marriage in the United Kingdom. Over a year later, in December 2004, the couple underwent traditional Hindu marriage rites in India. In January 2005, the couple registered their marriage in India. Between 2003 to 2007, the couple resided in the United Kingdom. From June 2007 to January 2011, the couple resided in India. They then moved to Singapore. There are no children to the marriage.

The couple had been residing in Singapore ever since and both became Permanent Residents (“PR”) in February 2014. It appears that the PH is in the marine industry. The DW was a homemaker at the time the divorce proceedings were filed by the PH.

In Singapore, the couple resided in a rented apartment. They have three properties in India. There is a fourth property in India which has since been sold and appears to be the subject of contention as will be seen later (hereafter referred to as the “Faridabad property”).

On 17 September 2015, the PH filed for divorce in Singapore on the grounds that the marriage has irretrievably broken down due to the DW’s behaviour such that he cannot reasonably be expected to live with her.

Three months later, in December 2015, the DW filed her petition for the Restitution Proceedings under section 9 of the Hindu Marriage Act.

The PH is challenging the Indian courts’ jurisdiction for the Restitution Proceedings. For completeness, I add that at the time of the hearing before me, there was no evidence that divorce proceedings had been commenced in India by either party or any suggestion thereof.

The parties’ differing positions

According to the PH, the marriage had broken down since August 2014 and the DW had been aware since then of his intent to file for divorce. Disputing this, the DW claims that the marriage was fine; she was thus shocked when she learnt of the PH’s intent to divorce in October 2015.

The PH averred that the couple is domiciled in Singapore. He pointed out that they are both Singapore PRs and that he is gainfully employed in Singapore. With all his ties and links in Singapore (save for his parents), the PH remarked that in time to come, he may become a Singapore citizen and permanently settle down here.

Expectedly, the DW contested this claim. She asserted that they came to Singapore only because of the PH’s work, and the intention was always to return to India after 18 months. In similar vein, she contended that the PR status was “mainly because” of the PH’s work in Singapore. She emphasised that both of them are born in India, citizens of India and have always considered India their domicile of choice.

In support of her position, the DW pointed to a purchase of a property in Bangalore, India, which she claimed they intended to live in upon their return to India. Her support network was also in India, and she claimed that she and the PH would visit India at least twice a year, and would enjoy two to three-week long vacations there. She herself would travel to India around four times a year.

On the issue of the Faridabad property, the DW alleged that the PH had forced her to sell the property on the pretext that he was in “desperate financial need”.

No lis alibi pendens on the facts of the case

Apart from the broad assertions in his written and oral submissions that there were “overlapping facts and issues” and a “possibility” of conflicting decisions between the Indian and Singapore courts, DW’s counsel proffered no basis as to why the Restitution Proceedings amounted to a lis alibi pendens.

In Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd [2013] 4 SLR 1097 (“Virsagi”), the Court of Appeal expounded on what would amount to a lis alibi pendens, and the situations in which it could arise. Germane for present purposes is [47] of the grounds of decision (“GD”) which discusses when a lis alibi pendens exists:

… in determining whether there is a lis alibi pendens, the first legal port of call ought to be the identity of the parties and the causes of action concerned. This will enable the court to identify whether there are same or similar issues arising from the same factual matrix which are before both the local and foreign court(s), and if so, the extent of these similarities. The nature of the reliefs sought and the causes of action concerned will be inextricably linked with each other. However, the court ought not to hold, without more, that the local and foreign court(s) are faced with the same or similar issues by focusing merely on the reliefs sought…As for the degree of similarity necessary, the party seeking to demonstrate that there is a lis alibi pendens need not show a total correspondence of issues, but the court will be more likely to find a lis alibi pendens where the issues are of a greater degree of similarity.

As can be seen, the key issue is the extent of similarity between the issues. I was unable to find that there was a lis alibi pendens on the facts before me.

To begin with, there was no evidence as to what exactly would be the issues confronting the Indian courts in the Restitution Proceedings. For instance, matters such as the issues for determination; the legal burden on the respective parties and possible defences, if any, were not raised. On this basis alone, I could immediately dispose of the lis alibi pendens argument.

But even if I were to go further to attempt to identify the issues, applying the guidance set out in Virsagi (see [16] above), I was of the view that the causes of action and nature of reliefs sought in the Restitution Proceedings and the Singapore divorce proceedings were different, and without more, militated against there being a similarity between issues. I explain below.

In her own petition for the Restitution Proceedings, the DW stated: “[t]hat the cause of action [for the Restitution Proceedings] as first accrued when the [PH] started ignoring [her] and stated that he is planning to divorce...” [emphasis added]. She did not raise the issue of whether the marriage had broken down.

According to the said petition, the relief being claimed is “…a decree…for the restitution of the conjugal rights directing the [PH] to join the conjugal company of the [DW] and also directed [sic] the [PH] to keep and maintain the petitioner in his company…”.

In contrast, the PH’s cause of action so to speak, is the divorce, i.e. the irretrievable breakdown of the marriage arising from the DW’s behaviour such that he cannot be reasonably expected to live with her. The relief is to dissolve the marriage.

Accordingly, I was of the view that without more, it would appear that the proceedings were distinct as submitted by Plaintiff counsel, thereby militating against a similarity of issues.

In fact at the hearing, Defendant counsel conceded that there was “not a great degree of overlap” of issues between both sets of proceedings; that the overlap was “not as powerful as [in] a divorce proceeding”.

I would also add that I was not persuaded by Defendant counsel’s averment in his written submissions that the Indian Courts and Singapore Courts would have “to deal with the same facts concerning the breakdown of the marriage”. Presumably, this submission was made to bolster the lis alibi pendens argument.

While it may be that there could be an overlap of facts raised in the Restitution and divorce proceedings since both proceedings pertain to the couple’s marriage, the key concern is whether there are similar issues being tried. Overlapping facts do not translate into a similarity of issues. This is a leap of logic. To belabour the point, similarity between issues is likely to give rise to similar facts, but the inverse is not necessarily true.

In the premises, I was not satisfied that there was a lis alibi pendens. As for the risk of conflicting decisions, I address this at [70] – [78] below.

Even if the Restitution Proceedings were considered in the forum non conveniens analysis, it was a neutral factor

While the Restitution Proceedings do not amount to a lis alibi pendens, I was of the view that if the DW’s case was to be taken at its very highest, the proceedings could possibly be considered parallel proceedings (see [38] of Virsagi). If so, it would factor into the overall forum non conveniens analysis, i.e. the application of the Spiliada principles.

In this regard, how advanced the respective divorce and Restitution Proceedings were would be an important consideration in deciding how much weight to accord to the existence of such parallel proceedings (see [39] of Virsagi).

As there was no evidence before me that either set of proceedings were advanced at the time of the hearing – in fact, both proceedings appeared to be at the initial stages - I thus regarded this as a neutral factor.

Connecting factors in favour of India were...