The Delhi High Court, in a bench presided over by Justice Harish Vaidyanathan Shankar, held that an ad-interim anti-suit injunction restraining a spouse from proceeding with foreign divorce proceedings directly affects substantive civil rights and is not a mere procedural interlocutory order. Consequently, the Court held that an appeal lies against such an order under Section 19(1) of the Family Courts Act, 1984, making a supervisory petition under Article 227 of the Constitution of India non-maintainable.
Background of the Case
The matter arose from a petition filed under Article 227 of the Constitution by the husband, challenging an order dated March 25, 2026, passed by Family Court-01, South-West District, Dwarka, New Delhi, in a civil suit instituted by the wife.
The Family Court had granted an ad-interim anti-suit injunction under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908. By this order, the Family Court restrained the husband from proceeding further with divorce proceedings he had instituted before the Superior Court of New Jersey, Chancery Division-Family Part, Somerset County, United States of America, pending the final adjudication of the suit filed by his wife.
Arguments of the Parties
Before the High Court could enter into the merits, counsel appearing for the respondent-wife raised a preliminary objection regarding the maintainability of the petition. It was argued that the order of the Family Court was not an “interlocutory order” within the meaning of Section 19 of the Family Courts Act, 1984. The respondent contended that the true test lies in examining the nature, effect, and civil consequences of the order rather than the stage at which it was passed. Since the anti-suit injunction directly restrained the petitioner from pursuing legal remedies in an American court and was intrinsically tied to the principal relief sought in the suit, it affected valuable substantive rights. The respondent relied upon the Full Bench decision of the Delhi High Court in Dr. Geetanjali Aggarwal v. Dr. Manoj Aggarwal and the Supreme Court decision in Shah Babulal Khimji v. Jayaben D. Kania.
Contrarily, senior counsel for the petitioner-husband submitted that the order was purely interlocutory as it did not finally decide any substantive right or conclude the matrimonial dispute. It was argued that the interim injunction was intended merely to preserve the status quo during the trial and would merge with the final judgment. To support maintainability under Article 227, the petitioner relied on the Jharkhand High Court judgment in Mukund Murari Mahto v. Karishma Singh @ Kumari Mubi and the Bombay High Court ruling in Smt. Amishi Milan Honawar v. Shri Milin Bhavanishankar Honawar. The petitioner also pointed out that a coordinate bench of the High Court had previously entertained an Article 227 petition in the same litigation.
Court’s Analysis
Addressing the preliminary issue, Justice Harish Vaidyanathan Shankar observed that Section 19(1) of the Family Courts Act provides a statutory right of appeal against every judgment or order, except an “interlocutory order.” However, since the Act does not define “interlocutory order,” the character of an order must be determined by its substance, legal effect, and impact on the rights of the parties.
Referencing the Full Bench ruling in Dr. Geetanjali Aggarwal, the High Court reiterated that nomenclature assigned to an order is not determinative. Quoting the Full Bench, the Court highlighted that “Whenever the Court finds that an order touches upon the vital rights of the parties in contradistinction to an order which is merely a procedural order, an appeal ought to be entertained, irrespective of the fact that the order was passed during the pendency of the proceedings before the learned Family Court.”
Examining the nature of the anti-suit injunction in the present case, the High Court observed that the order did not merely regulate court procedure or schedule filings. The Court held:
“The injunction travels beyond the proceedings pending in India and operates upon proceedings pending before the American Court. Such an order undoubtedly carries significant civil consequences for both parties and substantially affects the manner in which their matrimonial disputes may be adjudicated.”
The Court rejected the petitioner’s argument that the order merely maintained a temporary status quo, stating:
“Temporariness describes the duration for which an order operates, it does not necessarily determine whether the order is interlocutory. The relevant inquiry remains whether, during the period of its operation, the order directly and materially affects valuable rights or determines an important aspect of the lis.”
The Court affirmed that “an anti-suit interim injunction restraining a party from prosecuting matrimonial proceedings before a foreign Court cannot be equated with an order passed merely for regulating procedure or preserving orderly conduct of the proceedings before the learned Family Court.”
The High Court distinguished Mukund Murari Mahto, noting that it pertained to pendente lite maintenance, and Amishi Milan Honawar, which concerned temporary occupational rights in a flat. Furthermore, regarding the earlier order by a coordinate bench in the same dispute, the High Court observed that the issue of maintainability was neither raised nor decided in that proceeding, and thus did not form a binding precedent.
Decision
The High Court concluded that the impugned order possesses the trappings of an adjudicatory order affecting substantive rights and is appealable under Section 19(1) of the Family Courts Act, 1984. Since an efficacious statutory appellate remedy is available, the extraordinary supervisory jurisdiction under Article 227 of the Constitution cannot be invoked.
Accordingly, the High Court dismissed the petition as not maintainable, clarifying that no opinion was expressed on the merits of the case and leaving all substantive issues open to be raised in appropriate appellate proceedings.
Case Title: Kapil Kabra v. Meenakshi Kabra
Case No.: CM(M) 1476/2026
Bench: Justice Harish Vaidyanathan Shankar
Date: August 6, 2026
