QR v ST (Divorce: Retrospective extension of time for Answer, Forum, and ASI)

The applicant husband (“H”) and respondent wife (“W”) were both born in India but have each lived in England for about twenty years. They married in India in 2008 but, as is accepted, both are habitually resident in this jurisdiction. They have three children, all born here. The family home, where they both still live, albeit separately under the same roof, is in England.

H made a sole application for divorce on 23 June 2025. There is no dispute that the marriage is valid and recognised in this jurisdiction. It is not now disputed that the courts of England and Wales have jurisdiction in respect to the parties’ divorce. H does not have to establish any fault to obtain a divorce order.

In accordance with established procedures, W entered an acknowledgement of service (undated) signed with a statement of truth in which she stated that she “will continue without disputing the divorce”, “agrees the courts of England and Wales have jurisdiction”, and that “there were no other court cases relating to the marriage.”

In accordance with FPR r7.9(1), after a period of twenty weeks had passed from the date of issue, on 21 November 2025 H applied for the court to consider the making of a conditional order of divorce. On 3 December 2025, the court certified that H was entitled to a conditional order and notified the parties that the orders would be made at a hearing on 23 December 2025 at the Birmingham Civil and Family Justice Centre. The notice stated, “You do not need to come to the hearing unless you want to object to any of the orders that are being made.”

W attended the hearing and objected to the conditional order being made. The Deputy District Judge at the hearing recorded, “Objection raised: Divorce proceedings instigated in India by Respondent against the Applicant already citing jurisdictional issues.”

In fact, W had not instigated divorce proceedings in India but, shortly before the hearing in Birmingham, had applied in New Delhi for restitution of conjugal rights under The Hindu Marriage Act 1955, s9 of which provides:

“Where either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”

On 19 December 2025, W filed an Answer in the divorce proceedings herein using form D8B, which is the means by which a party can dispute the divorce application. W indicated that the ground on which she wished to dispute the application was the court’s jurisdiction to entertain the proceedings. She gave the following particulars:

“The Respondent disputes the jurisdiction of this Court. The marriage was solemnised in India and is governed by the Hindu Marriage Act, 1955. Proceedings have been initiated, before the competent court in India.

The Respondent has filed this application challenging jurisdiction and seeking a stay. All participation is without prejudice and without submission to jurisdiction.

India and UK Are Reciprocal Territories (Section 44A Civil Procedure Code, 1908) and under the Reciprocal Enforcement of Judgments (India) Order 1958, issued pursuant to the UK's Foreign Judgments (Reciprocal Enforcement) Act 1933," The current proceedings are against these doctrines/ laws.”

On 2 January 2026, W applied using a D11 form for an extension of time for the filing of the D8B form and for relief from “any procedural default arising from the late filing of the D8B”. This was an application for a retrospective extension of time because, as discussed in more detail below, time for filing an Answer, had long since expired.

In turn, H applied by a D11 application dated 9 February 2026, for an order dismissing W’s application, alternatively striking out the Answer itself and for an ASI in respect of any matrimonial proceedings including the application for the restitution of conjugal rights.

On 9 April 2026, Judge Bagha in the Family Court in New Delhi made an anti-suit injunction (“ASI”) restraining H from proceeding with the divorce in England. This was a without notice order with a return date on 2 July 2026. On 27 April 2026, H applied herein for an anti-anti suit injunction restraining W from proceedings with her injunction in India, alternatively compelling her to withdraw it.

By a route I need not describe, the proceedings herein came before HHJ Hess who, with permission of Mr Justice Peel, transferred them to the High Court. It may have been preferable for directions to have been given on receipt in the High Court, but the case was simply listed before me for 25 June for half a day.

The applications before me, therefore, are:

There are financial remedy proceedings and Children Act proceedings ongoing in the Family Court, but they are not my present concern.

It is convenient first to address W’s application but, before doing, so I should explain my understanding of her Answer. I am greatly assisted by Ms Young who set out a position that I had not gathered from the bundle of documents. W does not dispute jurisdiction. It is accepted that under the Domicile and Matrimonial Proceedings Act 1973, s5(2), the courts of this jurisdiction have jurisdiction to entertain the divorce application. The habitual residence of both parties has been firmly established in England for many years. Rather, W contends that the appropriate forum for any divorce proceedings is in India not England.

In India, the parties would not have the option of a no-fault divorce as is the position in England and Wales. W says that she was taken by surprise by H’s divorce application in England and wishes to avail herself of rights and remedies open to her in India by reason of the parties entering into a Hindu marriage in that country, which are not open to her in England. I have admitted a written legal advice from Shirin Khajuria but without any finding as to her expertise or the reliability of her opinions, in which she states that the Hindu Marriage Act 1955 is a “legitimate legislative effort to strengthen and to preserve the institution of marriage. Section 9 [above] encourages attempts at reconciliation before dissolution of marriage. This understanding is strengthened by the insertion of Section 13(1A) by the Amendment Act of 1964 where a spouse may seek a divorce if there has been no restitution of conjugal rights for a period of more than 1 year after passing of a decree under Section 9.” As I understand it, if, one year after a declaration of an order for restitution of conjugal rights, there has been no restitution, then a spouse may seek a divorce. Hence, if a declaration of restitution were made, which it has not to date, then divorce proceedings in India could only be commenced after one year from that date.

Within her restitution application, W also invites the Indian courts to consider other reliefs which may include:

W says that without such rights and remedies there is a risk that a large amount of jewellery assets could be retained by members of H’s family and her access to the matrimonial home, here in England, could be compromised whereas under Indian law she cannot be asked to leave it.

FPR r7.7 applies when a divorce application has been made:

“7.7.(1) The respondent must file an acknowledgment of service within 14 days beginning with the date on which the application for a matrimonial or civil partnership order was served.

…

5)

A respondent who wishes to dispute proceedings must file and serve an answer within 21 days beginning with the date by which the acknowledgment of service is required to be filed.

(6)

A respondent may file an answer even if the intention to do so was not indicated in the acknowledgment of service.”

There is no available record of service of the divorce application, nor is the acknowledgement of service dated. Giving as much leeway as is reasonable, I assume that the acknowledgement of service was required to be filed by no later than 14 July 2025 and therefore the answer by 4 August 2025. W’s application for a retrospective extension of time to file an Answer was made on 2 January 2026. The Answer was by then very nearly five months out of time. The court had already certified that H was entitled to a conditional order, but W had objected in person to a conditional order on 23 December 2025.

FPR r7.7(5) is in mandatory terms, and I treat W as applying for relief from sanctions. Ms Young accepted that was the appropriate approach in her written submissions. As such FPR r 4.6 apples:

“4.6.(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including—

(a)

the interests of the administration of justice;

(b)

whether the application for relief has been made promptly;

(c)

whether the failure to comply was intentional;

(d)

whether there is a good explanation for the failure;

(e)

the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol (GL);

(f)

whether the failure to comply was caused by the party or the party's legal representative;

(g)

whether the hearing date or the likely hearing date can still be met if relief is granted;

(h)

the effect which the failure to comply had on each party; and

(i)

the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.

(2)

An application for relief must be supported by evidence.”

The criteria to be applied to an application for relief from sanctions in family cases is the same as those applied in civil cases, namely the three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906, [2015] 1 All ER 880. I should first assess the seriousness and significance of the failure to comply with FPR r7.7(5); then, consider any explanation for the failure to comply; finally, I should consider all the circumstances so as to enable the court to deal justly with the application. In family proceedings this will include consideration of all the matters set out at FPR r4.6(1).

The evidence relied upon by W in support of her application retrospectively to extend time and therefore for relief from sanctions, is stated in concise terms in her annex to her application, in which she provides the following explanation for the delay:

“The Respondent did not deliberately or wilfully fail to file the D8B within time. The delay arose due to the need to obtain legal advice across jurisdictions and to prepare jurisdictional objections appropriately, given that the marriage is governed by foreign personal law.

The Respondent has acted promptly and in good faith. Upon becoming aware of the procedural position, the Respondent filed:

• Form DSB, and

• Form D11 application raising jurisdictional objections and seeking case management directions.”

Whilst W states in her draft Answer that she disputes the jurisdiction of the court, Ms Young has corrected that in her submissions to the court. The challenge is not to the court’s jurisdiction but she asserts that India, not England, is the appropriate forum for divorce proceedings.

The delay in filing an Answer was five months. That is a serious and significant delay. The period of delay is of particular significance in that during the delay sufficient time had elapsed for the court to certify that H was entitled to a conditional order. It is also of particular significance that W had indicated in her Acknowledgement of Service, verified with a statement of truth, that she would continue without disputing the divorce and that she agreed that the courts of England and Wales had jurisdiction. On 21 November 2025 the court issued notice of H’s application for a conditional order on the basis not only of the lapse of time since the application but also the contents of her acknowledgement of service.

Thus, the delay was serious and significant in the context of the divorce proceedings. W had informed H and the court that she was not disputing the divorce or jurisdiction. H proceeded on that basis. W then changed her mind several months later with the result that, if the court allows a retrospective extension of time, her actions will have caused months of avoidable delay to a procedure which is tightly timetabled in order to allow a divorce to proceed with the expedition Parliament intended.

W has provided no evidence of when she first sought legal advice in relation to “jurisdictional objections”. She does not say whether or not she had sought any legal advice at the time of filing her Acknowledge of Service. She asserts that she acted promptly upon becoming aware of the procedural position but does not tell the court how or when she became aware. I have no evidence beyond bare assertion, that she acted promptly. Hence, her account for her failure to comply with the time limit within FPR r7.7(5) is wholly unsatisfactory and does not constitute a reasonable explanation or excuse for the serious and significant delay.

I accept that W did not intentionally delay proceedings – I have no evidence that she deliberately sat on her hands in order to cause delay. I cannot know from W’s explanation to what extent any delay was caused by the tardiness of any lawyers providing her with advice or assistance or was due to her own slowness when seeking such advice and assistance. I accept that W has not failed to comply with other rules or orders within the application for divorce itself.

The effect of delay on H would be substantial. If W’s application were now allowed, then the divorce proceedings will have already been delayed by many months. There would now be a dispute to be resolved in relation to forum which itself could take several more months to conclude. Had he known of the dispute at an earlier stage H could have taken legal advice and marshalled evidence and argument promptly. He could have addressed the issue that W now wishes to raise, and very possibly have resolved it, in good time prior to applying for any conditional order. The delay has adversely impacted on his legal costs and personal resources.

Likewise, the effect of the delay on the administration of justice is significant. Had W filed her Answer in time, raising the issue of jurisdiction or forum, then the parties would have had an opportunity to avoid litigating that issue (saving court time and resources) or to narrow the issues. As it is, the parties are now embroiled in litigation across two jurisdictions, involving the High Court of England and Wales.

I am entitled to consider the merits of the issues raised in the Answer. Ms Young has submitted on W’s behalf:

“Conducting a holistic assessment of justice in this case, and considering all the circumstances, it is submitted that it is just to grant relief. In particular where there is a very real and prospectful argument to be made in respect of ‘forum’ for these divorce proceedings. If such relief is not granted, W will be unable to contest the divorce, a conditional order will likely be granted and then a final order made in the future legally divorcing her from H which will create the issue identified within the legal advice of Shirin Khajuria, that of a “limping marriage.”

As noted, I have admitted the advice of Shirin Khajuria for the purposes of this application without prejudice to arguments about the author’s expertise or the reliability of her advice. It is written advice to another advocate. Shirin Khajuria is stated to be a Senior Advocate, Supreme Court of India. The advice is dated 22 June 2026. It describes W as a “client”. She has clearly waived any privilege in respect of this advice. In it, the Senior Advocate, advises that in India the irretrievable breakdown of the marriage would not be a ground for the divorce of these parties. There is no recognition of “no-fault divorce”, hence any divorce on that basis in this jurisdiction would be “un-executable” in India creating a “limping marriage”.

As Ms Young has made clear, notwithstanding that on its face the Answer disputes jurisdiction, W’s actual challenge is to forum. She accepts that the courts of England and Wales have jurisdiction to entertain H’s divorce application, but she contends that India is the more appropriate forum for divorce proceedings. Ms Young rightly submits that the actual issue of forum is not in dispute before the court on this application, but in my judgement I am entitled to look at the merits of the Answer which W seeks to rely upon if granted a retrospective extension of time.

The leading case on forum is Spilidia Maritime Corp v Cansulex Ltd [1987] AC 460 in which, at 476, Lord Goff held that:

“… the basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action.”

…

In my opinion, the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is paid to the fact that jurisdiction has been founded in England as of right (see MacShannon's case [1978] A.C. 795, per Lord Salmon); and there is the further advantage that, on a subject where comity is of importance, it appears that there will be a broad consensus among major common law jurisdictions. I may add that if, in any case, the connection of the defendant with the English forum is a fragile one (for example, if he is served with proceedings during a short visit to this country), it should be all the easier for him to prove that there is another clearly more appropriate forum for the trial overseas.

…

Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described, in MacShannon's case [1978] A.C. 795, 812, as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Having regard to the anxiety expressed in your Lordships' House in the Société du Gaz case, 1926 SC (HL) 13 concerning the use of the word "convenience" in this context, I respectfully consider that it may be more desirable, now that the English and Scottish principles are regarded as being the same, to adopt the expression used by my noble and learned friend, Lord Keith of Kinkel, in The Abidin Daver [1984] A.C. 398, 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Crédit Chimique v. James Scott Engineering Group Ltd., 1982 S.L.T. 131), and the places where the parties respectively reside or carry on business.”

Divorce proceedings have not been issued in India. W’s application in India is for restitution of conjugal rights and is designed to prevent or delay divorce proceedings not to advance them. Mr Lewis submits that there is no issue concerning forum because there are no parallel divorce proceedings. Ms Young submits that there is no requirement that parallel proceedings must be underway, only that there is another forum to whose jurisdiction W and H are amenable. For present purposes I accept Ms Young’s submission on that issue. Nevertheless, it is relevant to the issue of appropriate forum, that divorce proceedings have not only not begun in India, but may very well be at least one year away from even being issued. That is because of W’s application in India is for the restitution of conjugal rights. If granted then, on the advice of Shirin Khajuria, at least one year would have to pass before H could seek a divorce. Hence it could be as long as 18 months to two years before the parties reach an equivalent stage in any Indian divorce proceedings to where they are in the English divorce proceedings. Here, the divorce proceedings are well underway and could progress swiftly to a conditional order.

The parties have lived in England for twenty years. The family home is here. They have three children who live with them in England and who were all born here. I note that Shirin Khajuria was instructed that W wishes welfare decisions concerning the children to be made in England. Indeed, there are active Children Act proceedings in the Family Court in which W has accepted the court’s jurisdiction and has not raised the issue of appropriate forum. There are also ongoing financial remedy proceedings in this jurisdiction currently listed for a first appointment on 6 August 2026.

H has family in India and travels there, but he does not want to incur the expense and trouble of travelling to India for divorce proceedings. I understand that under a claim for Stridhan in Hindu law in India, W would in principle be entitled to keep sole possession of all jewellery and assets given to her from the point of the parties’ engagement to date. Furthermore, under Indian law she would claim an unfettered right to access to the matrimonial home. Naturally, any comparative benefits to W from divorce and ancillary proceedings in India would have an equal, corresponding comparative disbenefit to H. And any comparative benefits to H from divorce and ancillary proceedings in England would have an equal and corresponding comparative disbenefit to W. The courts of England and Wales clearly have jurisdiction to entertain the divorce application and if H would enjoy some gain from exercising his right to bring proceedings here, he should not be lightly deprived of that. The fact that W might gain from being involved in divorce proceedings in India does not mean that it is a more appropriate forum. A Lord Goff made clear in Spilidia (above) the answer lies in examining whether the alternative forum is more appropriate, not whether it would confer an advantage to the defendant (here W): “We have to consider where the case may be tried "suitably for the interests of all the parties and for the ends of justice."”

Here, whilst the parties’ marriage took place in India, their connections to this jurisdiction are far stronger. They are habitually resident here. They have lived here for twenty years. They have chosen to make their home and to raise their children in this jurisdiction. It appears that most of their property is here including the family home. They have easy access to the courts in this jurisdiction whereas access to the Indican courts causes practical difficulties because they are not their home courts – they are on a different continent.

The fact that the Indian court may not recognise a no-fault divorce is not, in my judgement, a reason to find that the Indian court is a more appropriate forum. It would be surprising for a judge in this jurisdiction so to find. The parties have chosen to be habitually resident in England and Wales. The Divorce, Dissolution and Separation Act (2020) introduced no-fault divorce laws which apply to both H and W. Those divorce laws apply equally to all married people who are habitually resident here for at least a year before any divorce application. There is no carve-out for persons of particular religious beliefs or cultural traditions. The laws apply to all marriages. Parties are married or they are not married. These parties are married and have been habitually resident here for many years and so the no-fault divorce laws apply. H is entitled to seek to use the divorce laws that apply in this jurisdiction and should not lightly be deprived of that right.

I am not deciding the issue of appropriate forum, but I do conclude that W’s “Answer” to the divorce application that it should be stayed because India is the appropriate forum, is extremely weak and lacking in merit. It has very little prospect of success.

Refusing an extension of time to file her Answer would therefore deprive W only of what is a weak defence to the divorce application. I understand her argument that she and H chose to have a Hindu marriage in India and therefore should be bound by the applicable laws there. The marriage in India affected their status but each of them also chose to become habitually resident in England (as in fact they very probably were at the time of the marriage) and so to be bound by the laws of divorce here. If the effect of refusing her application for an extension of time is to override rights she may have in India, that is a result of her choice to make her home in this jurisdiction. It is not an outcome that can be seen as unjust or prejudicial to her.

Balancing all the circumstances of the case including the seriousness and significance of the delay, the absence of any reasonable explanation for that delay, the impact of the delay and of granting the application to extend time on H and on the administration of justice, the impact of refusing an extension on W, and W’s prospects of success on the issues raised in her Answer, I conclude that the application retrospectively to extend time for the Answer should be refused. In that event, there is no need for the court to consider H’s application to strike out the Answer.

The power to make an ASI, indeed to make injunctions generally, is given by the Senior Courts Act 1981 s37(1) “in all cases in which it appears to the court to be just and convenient to do so.” Peel J reviewed authorities on ASIs in E v E (ASI:children) [2021] EWHC 956 (Fam), setting our four core principles:

“(i)

The English court must have jurisdiction over the respondent;”

(ii)

The English forum must have a sufficient interest in or connection with the matter to justify interference with the foreign court;

(iii)

There must be an appropriate ground for relief; i.e. there must be some form of unconscionable conduct on the respondent’s part; and

(iv)

The court has a discretion. He held that in exercising its discretion:

“… the court will have regard to all the circumstances which include the facts upon which the application is based, the connections with each jurisdiction, the nature of the substantive proceedings both in this jurisdiction and in the foreign jurisdiction, the principles of judicial comity, the circumstance in which the foreign proceedings are brought, the balance of prejudice to each party depending upon whether the injunctive relief is or is not granted, and any other relevant matters.”

In Hemain v Hemain [1988] 2 FLR 388 (CA) the Court of Appeal recognised the power of English courts to restrain foreign proceedings where necessary to prevent oppression and to protect English proceedings but noted that the exercise of the power should be exceptional because of considerations of international comity.

The application of the first principle identified by Peel J in E v E (above) to this case is not disputed. The application of the second principle cannot reasonably be disputed. The English court has a significant connection with the matter since the divorce proceedings are ongoing and W’s application for restitution stands in direct opposition to those proceedings. Ms Young submits that W has sought only to assert her rights in India and that by doing so she cannot be accused of acting unconscionably. She has not been guilty of oppressive or vexatious conduct. I do not agree. I do not find that she has been dishonest or fraudulent in any way but, the proceedings in India are designed to stop the parties divorcing. They are therefore an attempt to thwart H from exercising his rights to make and pursue a divorce application. It is no answer to say that H lives in England and can pursue his divorce here. He has family in India and he visits that country. He faces the prospect of being in breach of orders in India arising out the proceedings that W has instituted there, with potentially serious consequences for him. Her application for restitution has already spawned an ASI against H in relation to the divorce proceedings in this jurisdiction. I shall address the application for an anti-ASI shortly, but the ASI against him is one example of an ancillary order within the proceedings begun by W in India in relation to the marriage, which are designed to prevent H divorcing her and include a direct challenge to H pursuing his right to divorce in this jurisdiction.

I accept that I have not made a determination about appropriate forum, although I have found W’s argument about appropriate forum to be weak. I also accept that even if I had dismissed W’s case on appropriate forum it would not, without more, justify an ASI. But W’s litigation in India is a direct challenge to H’s right to a no-fault divorce under the laws of England and Wales, which laws apply to H and W alike. He cannot readily defend the application in India because he does not live there. I am satisfied that by prosecuting her application for restitution of conjugal rights in India, W is acting oppressively and vexatiously, seeking to prevent H’s exercise of his right to terminate the marriage without having to assert or prove fault. It is a direct challenge to that right using a law in India that has no equivalent in England and Wales where the right to restitution of conjugal rights has not been recognised for several decades.

In exercising my discretion I must consider all the circumstances. The parties’ connections to this jurisdiction are far stronger than their connections to India, not least because this is where they presently live. W is not seeking a divorce in India – her application there is not a parallel application in that sense – but is an application directed at preventing H from divorcing her. The consequence of an injunction would be to allow him to divorce her in accordance with the laws of the jurisdiction where the parties have chosen to make their home. I accept that an injunction to prevent W from pursuing her application for restitution of conjugal rights, would render that application otiose to the extent that H could, in the meantime, secure a divorce here. But it would not prevent W seeking to resolve the parties’ marital status in India at some time after the divorce in this jurisdiction.

An ASI would be beneficial in saving the parties from having to engage Indian lawyers and travelling to India for proceedings whilst engaging in divorce proceedings in this jurisdiction. The parties do not live internationally between the two jurisdictions – they live here. W has issued her application in India belatedly (given that the divorce proceedings were issued here in June 2025). That will lead to considerable further delay in proceedings there compared with the existing and likely future progress of the divorce proceedings here. The balance of convenience falls heavily in favour of the injunction being granted. The injunction would allow H to continue the divorce proceedings here, expediting a resolution to his application.

The marital status of an individual is a very important matter for them and others, with far-reaching consequences. An attempt to prevent a person exercising his rights to change his marital status within the laws of his home country is a serious interference with his human rights.

Whilst the court will have full regard to the issue of international comity, there is an obstacle in this case, which is the fundamental and unbridgeable difference in the laws of the two jurisdictions: in England there is a right to no-fault divorce and no power to order restitution of conjugal rights. In India there is no right to no-fault divorce and there is a power to order restitution of conjugal rights. International comity is of mutual application and I do not regard it as a bar to making the ASI given the much closer connections of the parties to this jurisdiction and the balance of convenience, as well as the other matters I have taken into consideration.

In all the circumstances I conclude that this is an exceptional case in which an ASI should be made. I shall order that W shall not take any further steps within the Indian proceedings, not make any further application in India purporting to affect the parties’ matrimonial status or H’s ability to seek orders from the English court in relation to the marriage. The injunction shall remain in force until the making of the final order of divorce in this jurisdiction.

The principles governing the making of an ASI have application to the making of an anti-ASI (AASI). Mr Lewis helpfully referred the court to two civil cases in which AASI’s have been considered: Ecom Agroindustrial Corp v Mosharaf Composite Textile Mill [2013] EHC 1276 and Renaissance Securities (Cyprus) v Chlodwig Enterprises [2023] EWHC 2816 (Comm).

Whilst the ASI I have decided to make is a prohibitory order directed at W and the application she has brought in India for restitution of conjugal rights, the AASI sought is a mandatory injunction requiring her to take steps to have the Indian ASI set aside or discharged. The Indian court has considered it lawful and appropriate to make that anti-suit order against H. It seems to me, following Hamblen J’s judgment in Ecom (above), that even more caution should be applied before making a mandatory injunction, and that the issue of international judicial comity looms larger. It would be regrettable if the courts in the two jurisdictions entered into a tit-for-tat series of injunctions. I seek to avoid that possibility.

In the light of my other determinations, W ought to recognise that the Indian ASI is no longer appropriate and that she can and should take steps to have it discharged. If, as I have ordered, she is to take no further steps in the Indian proceedings pending the final divorce order in this jurisdiction, then clearly the Indian ASI against H should have no application. I therefore invite her to ensure that the Indian ASI is set aside or discharged and to confirm to H and to the court that it has been set aside or discharged and is no longer effective by providing a copy of such an order. If that can be achieved by withdrawing any application, then she shall be permitted to do that and is invited to do so. I decline currently to make an AASI. But I shall give leave to H to renew his application without having to make a fresh application, on notice, if W has not provided confirmation of the Indian ASI having been set aside or withdrawn by 30 September 2026.

To assist the parties, I informed them of my decisions on the applications prior to circulating my judgment. There was a hearing in India after I had done so but before I had made any orders or handed down judgment. I understand that W took no steps at that hearing to have the Indian ASI set aside or discharged. I do not criticise her unduly for not doing so since she did not yet have this court’s orders, but if she does not secure the discharge of the Indian ASI, or have it set aside within the reasonable time I have allowed, then this court may have to take the exceptional step of making an AASI compelling her to do what I am inviting her to do now. Time and costs will have been incurred in the meantime. The ASI will be drafted so as to allow her to take steps to withdraw the AASI or to have it set aside or discharged.