SMRITI MADAN KANSAGRA v. PERRY KANSAGRA

Citation: [2021] 10 S.C.R. 742; 2021 INSC 632

Court: Supreme Court of India

Bench: UDAY UMESH LALIT , AJAY RASTOGI, HEMANT GUPTA

Judgment date: 2021-10-07

Case summary

2021 INSC 632. Supreme Court of India judgment dated 2021-10-07. SMRITI MADAN KANSAGRA v. PERRY KANSAGRA. Read the judgment and case details on LawSphereX.

Judgment text

742 SUPREME COURT REPORTS[2021] 10 S. C. R. 742 [2021] 10 S. C. R. A SMRITI MADAN KANSAGRA v. PERRY KANSAGRA (Miscellaneous Application No. 1167 of 2021) B In (Civil Appeal No. 3559 of 2020) OCTOBER 07, 2021 [UDAY UMESH LALIT, HEMANT GUPTA AND C AJAY RASTOGI, JJ. ] Guardian and Wards Act, 1890 – Custody of minor child – Obtained by fraud – Contempt of Court – Guardianship petition filed by father (of Indian origin) settled in Kenya for custody of the minor child before Family Court, New Delhi – Allowed – Affirmed D by High Court – Undertaking given by him to submit to the jurisdiction of Indian Courts – High Court’s order challenged by mother – Appeal dismissed by majority judgment of Supreme Court dtd. 28. 10.

20 – Custody of the child handed over to the father subject to his obtaining mirror order from the concerned court in Nairobi reflecting the directions contained in the said judgment – E Undertaking filed to abide by the directions contained in the majority decision – Originating Summons filed by him in the High Court of Kenya at Nairobi seeking registration of the judgment dtd. 28. 10. 20 and for obtaining mirror order – Registration granted vide order dtd. 09. 11. 20 – Mother filed M. A seeking modification of certain F directions issued in paragraph 20 of the majority judgment – Application disposed of vide order dtd. 08. 12.

20 – Undertaking given by the father in Supreme Court to abide by the said order – Child taken to Kenya – Vacation access denied to the mother – Father also filed petition in Kenya inter alia challenging the jurisdiction of the Indian Courts – Held: At no stage the father G brought the development to the notice of Supreme Court that the Summons moved by him seeking registration of the judgment dtd. 28. 10. 20 was subsequently dismissed by the High Court of Kenya at Nairobi – It was only on the basis of the solemn undertakings given by him and the order dtd. 09. 11. 20 passed by the High Court of Kenya at Nairobi which was projected to be a H 742 SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 743 mirror order in compliance of the directions issued by this Court, A that the custody of the child was directed to be handed over to him – Further, order dtd. 08. 12.

20, made it clear that the undertaking given to the High Court would continue to be operative, in addition to the undertakings given to this Court – However, such undertakings were not only flagrantly violated but a stand is now taken challenging B the very jurisdiction of the Indian Courts – Orders obtained by playing fraud upon the Court – A party approaching the Court must come with clean hands, more so in child custody matters – Non-disclosure of material facts by the father at relevant junctures shows that he approached the Indian Courts with unclean hands – Judgment dtd. 28. 10. 20 and the order dtd. 08. 12. 20 recalled – C Guardianship Petition filed by the father is dismissed – Custody of the child with him is illegal and void ab initio – Notice for contempt issued – Further directions issued.

Guardian and Wards Act, 1890 – Parens patriae jurisdiction – Held: Wherever the custody of a minor is a matter of dispute, the D primary custody of the minor in parens patriae jurisdiction is with the Court which may then hand over the custody to the person who would be the most suitable – Any action initiated to obtain such custody from the Court with fraudulent conduct and design would be a fraud on the process of the Court. E Disposing of the miscellaneous application and connected interim applications, the Court HELD: 1. 1 The documents and the developments show: (i) ‘P’ (the father) had given an unequivocal undertaking to the High Court that he would submit to the jurisdiction of the F Indian Courts. He had also given a solemn undertaking to this Court. (ii) In response to a specific submission raised in Miscellaneous Application No. 2140 of 2020 (quoted in paragraph 16), it was submitted by ‘P’ that he had subjected himself to the G jurisdiction of this Court.

While dealing with the rival submissions in the Order dated 8. 12. 2020, this Court made it clear that the undertaking given by ‘P’ to the High Court would continue to be operative, in addition to the undertaking given to this Court. H 744 SUPREME COURT REPORTS [2021] 10 S. C. R. A (iii) The Judgment dated 28. 10. 2020 had called upon ‘P’ to obtain a ‘Mirror Order’ from the concerned Court in Nairobi to reflect the directions contained in the Judgment dated 28. 10. 2020. Thereafter, the Order dated 9. 11. 2020 passed by the High Court of Kenya at Nairobi along with the relevant application moved by ‘P’ seeking registration of the Judgment dated B 28. 10. 2020, was filed in this Court. (iv) There was a dispute whether the registration granted vide order dated 9. 11. 2020 by the High Court of Kenya at Nairobi amounted to fulfilling the requirement of a “Mirror Order”. In paragraph 10 of the Order dated 8. 12.

2020, this Court observed C that the registration of the Judgment of this Court by the High Court of Kenya at Nairobi was sufficient compliance of the directions to obtain a “Mirror Order” issued from a Competent Court in Kenya. (v) The Judgment dated 28. 10. 2020 and the Order dated D 8. 12. 2020 passed by this Court were thus premised on the submission that the Order dated 9. 11. 2020 passed by the High Court of Kenya at Nairobiwhile registering the Judgment dated 28. 10. 2020 passed by this Court was in fact the “Mirror Order”. (vi) It now transpires that by a subsequent Order dated E 21. 5. 2021, the High Court of Kenya at Nairobi in Paragraph 13 of its order observed that the judgment of this Court was not registrable and dismissed the Originating Summons dated 30. 10. 2020 filed by ‘P’. (vii) At no stage ‘P’ brought this development to the notice F of this Court that the Originating Summons moved by him seeking registration of the Judgment dated 28. 10.

2020 passed by this Court was dismissed by the High Court of Kenya at Nairobi on 21. 5. 2021. Having submitted to the jurisdiction of the Indian Courts it was the bounden duty of ‘P’ to keep this Court appraised of all the developments particularly when the “Mirror Order” G was the fulcrum on the basis of which this Court handed over to him the custody of ‘A’ (the child). (viii) This infraction gets more pronounced in the light of the stand taken in his Affidavit dated 5. 8. 2021 filed in this Court H SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 745 and referred to in Paragraph 22. In that affidavit ‘P’ unequivocally A stated that he had not even the remotest intention to disobey the Order passed by this Court including the Judgment dated 28. 10. 2020. Yet, something as basic and fundamental like the Order dated 21. 05. 2021 was not brought to the notice of this Court. B (ix) Miscellaneous Application No.

1167 of 2021 filed by ‘S’ (the mother) had annexed e-mails exchanged between her and ‘P’ and prayed that ‘P’ be directed to comply with directions regarding vacation access. In response, apart from stating that he had no intentions to disobey the orders passed by this Court, C ‘P’ voiced concern about sending ‘A’ to India. Being well aware of the conditions in this Country, a solution was devised by this Court in its Order dated 11. 08. 2021 and certain directions to facilitate the entry of ‘A’ into and his exit from India in a safe manner were issued. Pertinently on 11. 08. 2021, the attention of this Court was not invited to the fact that the Situational Report D dated 09. 08. 2021 to was made or that the matter was being looked into by the concerned authorities in Kenya. (x) Despite clear directions issued in the Order dated 11. 08. 2021 ‘P’ had not taken any steps to comply with the Order. As a matter of fact, by the time the matter was taken up for further E hearing on 16. 08.

2021, ‘P’ sought to withdraw the authorization in favour of the counsel who were all the while representing him before this Court. As disclosed in I. A. 100550 of 2021, week-end Skype meetings between ‘S’ and ‘A’ were not facilitated from the week-end of 14. 08. 2021 and 15. 08. 2021. ‘P’ also blocked all F means of communications with ‘S’. Though in law the advocates who had entered appearance on behalf of ‘P’ would continue to represent him, notice was additionally directed to be served on ‘P’ through Indian embassy of Nairobi. (xi) In the light of the defiant attitude exhibited by ‘P’ and G his refusal to abide by the Orders passed by this court, ad-interim relief in terms of prayers (d) (e) and (f) made by ‘S’ in her I. A. No. 100550 of 2021 was granted by this Court vide its order dated 17. 08. 2021. H 746 SUPREME COURT REPORTS [2021] 10 S. C. R. A (xii) Finally, Petition No.

E301 of 2021 and – Notice of Motion were moved on behalf of ‘P’, filed in the High Court of Kenya at Nairobi on 26. 08. 2021. The stand taken by ‘P’ in said Petition and Notice of Motion is that it would be humiliating to compel ‘A’ to take OCI Card; that wishes of ‘A’ were not ascertained by this Court; that there was no valid Mirror Order B and that the orders passed by this Court were without jurisdiction. He has prayed for declaration that there existed no valid “Mirror Order” and in the circumstances the orders passed by this Court are incapable of compliance and/or enforcement. [Para 34] [802-A-H; 803-A-H; 804-A-E] C 1. 2 These developments not only show the defiant and contumacious posture now adopted by ‘P’ but prima facie support the submissions of ‘S’ made in Interim Applications referred to in paragraphs 25, 27, and 28.

There appears to be concrete material and reason to believe that it was a well-planned D conspiracy on part of ‘P’ to persuade this Court to pass orders in his favour and allow him the custody of ‘A’ and then turn around and defy the Orders of this Court. It is fundamental that a party approaching the Court must come with clean hands, more so in child custody matters. Any fraudulent conduct based on which the custody of a minor is obtained under the orders of the Court, E would negate and nullify the element of trust reposed by the Court in the concerned person. Wherever the custody of a minor is a matter of dispute between the parents or the concerned parties, the primary custody of the minor, in parens patriae jurisdiction, is with the Court which may then hand over the custody to the F person who in the eyes of the Court, would be the most suitable person.

Any action initiated to obtain such custody from the Court with fraudulent conduct and design would be a fraud on the process of the Court. [Paras 35, 36][804-F-H; 805-A-B] 1. 3 Though, at every juncture solemn undertakings were given by ‘P’ to the High Court and this Court, such undertakings G were not only flagrantly violated but a stand is now taken challenging the very jurisdiction of the Indian Courts, despite having submitted himself to the jurisdiction of the Indian Courts. Such conduct, prime facie, can certainly be said to be contumacious calling for an action in contempt jurisdiction. H SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 747 Moreover, the non-disclosure of material facts by ‘P’ at the A relevant junctures also shows that he approached the Indian Courts with unclean hands. It was only on the basis of the solemn undertakings given by ‘P’ and the order dated 09. 11.

2020 passed by the High Court of Kenya at Nairobi which was projected to be a “Mirror Order” in compliance of the directions issued by this B Court, that the custody of ‘A’ was directed to be handed over to ‘P’. Since the false and fraudulent representations made by ‘P’ were the foundation, on the basis of which this Court was persuaded to handover custody of ‘A’ to him, it shall be the duty of this Court to nullify, in every way, the effect and impact of the orders which were obtained by playing fraud upon the Court. This C Court would therefore be well within its power and justified to recall all the orders and continue to assume jurisdiction to ensure that the situation as it prevailed prior to the passing of the orders by the Trial Court, the High Court and this Court, gets restored, whereafter appropriate decision can be taken in parens patriae D jurisdiction. [Paras 39, 40][822-C-F] 1. 4 It is true that ‘A’ is now in Kenya.

But he was taken to Kenya only on the basis of fraudulently obtained orders from this Court. The Indian Courts which were the Courts of first contact and had complete jurisdiction over ‘A’, must continue to exercise E such power and jurisdiction to correct the wrongs which occurred as a result of fraudulent conduct on part of ‘P’. It may be stated here that at every juncture, welfare of ‘A’ was and will always continue to be the primary consideration for the Indian Courts. He was interviewed by very competent and qualified Counsellors whose reports and assessments have been part of the record. F ‘A’ was also interviewed by the Trial Court, the High Court and this Court. At no stage any mistreatment by ‘S’ was even remotely suggested or adverted to by ‘A’. [Para 41][822-G-H; 823-A-B] 1. 5 Following directions inter alia passed: - G (A) The Judgment dated 28. 10. 2020 and the Order dated 08. 12. 2020 passed by this Court are recalled. (B) The Guardianship Petition No.

53 of 2012 filed by ‘P’ in the District Court, Saket, New Delhi seeking permanent custody H 748 SUPREME COURT REPORTS [2021] 10 S. C. R. A of ‘A’ and the resultant proceedings arising therefrom including MAT APP (F. C. ) No. 30 of 2018 filed in the High Court, are dismissed. (C) The Orders granting custody having been recalled, the custody of ‘A’ with ‘P’ is illegal and ab initio void. B (D) Issue Notice to ‘P’ as to why proceedings in contempt jurisdiction be not initiated against him for having violated the solemn undertakings given to this Court, returnable on 16th November, 2021. The Registry is directed to register Suo Motu Contempt Case and proceed accordingly. C (E) The Central Bureau of Investigation, New Delhi through its Director to initiate appropriate proceedings by registering criminal proceedings against ‘P’ and to secure and entrust the custody of ‘A’ to ‘S’.

(F) The Secretary, Ministry of External Affairs, Government D of India, New Delhi and the Indian Embassy in Kenya to ensure that all possible assistance and logistical support is extended to ‘S’ in securing the custody of ‘A’. [Para 42][823-C-H] S. P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1: [1993] 3 Suppl. SCR 422; Indian Bank v. Satyam E Fibres (India) (P) Ltd. (1996) 5 SCC 550 : [1996] 4 Suppl. SCR 464; United India Insurance Co. Ltd. v. Rajendra Singh (2000) 3 SCC 581 : [2000] 2 SCR 264; Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319 : [2003] 4 Suppl. SCR 543; Hamza Haji v. State of Kerala (2006) 7 SCC 416 : [2006] 4 Suppl. SCR 604; K. D. F Sharma v. SAIL (2008) 12 SCC 481 : [2008] 10 SCR 454; Meghmala v. G. Narasimha Reddy (2010) 8 SCC 383: [2010] 10 SCR 47; Badami v. Bhali (2012) 11 SCC 574 : [2012] 6 SCR 75 – relied on. Case Law Reference G [1993] 3 Suppl. SCR 422 relied on Para 37(a) [1996] 4 Suppl.

SCR 464 relied on Para 37(b) [2000] 2 SCR 264 relied on Para 37(c) H SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 749 [2003] 4 Suppl. SCR 543 relied on Para 37(d) A [2006] 4 Suppl. SCR 604 relied on Para 37(e) [2008] 10 SCR 454 relied on Para 37(f) [2010] 10 SCR 47 relied on Para 37(g) [2012] 6 SCR 75 relied on Para 37(h) B CIVIL APPELLATE JURISDICTION: Miscellaneous Application No. 1167 of 2021. In Civil Appeal No. 3559 of 2020. C From the Judgment and Order dated 25. 02. 2020 of the High Court of Delhi at New Delhi in MAT APP. (FC) No. 30 of 2018. Tushar Mehta, SG, Amarjit Singh Chandhiok, Ms. Sonia Mathur, Sr. Advs. , B. V. Balaram Das, Prosenjeet Banerjee, Ms. Nidhi Mohan Parashar, Ms. Mansi Sharma, Ms. Shreya Singhal, Keshav Sehgal, D Vikrant Kumar, Ms. Vidhi Jain, Anindit Mandal, Anunaya Mehta, Ms. Inderjeet Saroop, P. K. Manohar, Advs. for the appearing parties. The Order of the Court was passed by UDAY UMESH LALIT, J. E 1. Civil Appeal No.

3559 of 2020 arose from Guardianship Petition filed by Perry Kansagra (hereinafter referred to as ‘Perry’), father of minor named Aditya Vikram Kansagra (hereinafter referred to as 1 ‘Aditya’), under Sections 7, 8, 10, 11 of the Act before the District Court, Saket, New Delhi. Perry is a person of Indian origin and Gujarati by descent. His grandfather migrated to Kenya in 1935 and settled there. F The family has business interests in Kenya and United Kingdom. Perry holds dual citizenship of Kenya as well as United Kingdom. Perry got married to Smriti Madan Kansagra (hereinafter referred to as ‘Smriti’), an Indian citizen, on 29. 07. 2007 at New Delhi. Initially, the couple stayed at Nairobi, Kenya but Smriti returned to India in 2009. The couple was G blessed with a son – Aditya on 02. 12. 2009 at New Delhi. Except for a brief period when the couple had gone to Kenya in 2012, Aditya always stayed with Smriti in Delhi till the disposal of aforestated Civil Appeal No. 3559 of 2020.

1 The Guardianship and Wards Act, 1890 H 750 SUPREME COURT REPORTS [2021] 10 S. C. R. A 2. On 26. 5. 2012, Civil Suit (O. S. ) No. 1604 of 2012 was filed by 2 Smriti against Perry and his parents in the High Court seeking following reliefs: “(a) Pass a decree of permanent injunction restraining the defendants, their agents, representatives, servants and/ or attorneys in perpetuity form in any manner removing the child B either from the lawful custody of the Plaintiff No. 2 or removing the child from Delhi; the jurisdiction of this Hon’ble Court or accessing the child in his School “Toddlers Train” at Sunder Nagar, New Delhi. (b) Pass an order directing the Airport Authority of India, C Immigration Authority of India, ‘FRRO’ to ensure compliance of prayer ‘a’ above. (c) Pass a decree of permanent injunction restraining the Defendants, their agents, representatives, servants and/ or attorneys in perpetuity from meeting Plaintiff No. 1 without the D consent/ presence of Plaintiff No.

2" 3. On 25. 05. 2012, an ex-parte ad-interim order was passed by the High Court restraining Perry from removing Aditya from the custody of his mother. In this suit, I. A. No. 12429 of 2012 was filed by Perry seeking access to Aditya. Though Smriti was not averse to Perry’s E meeting Aditya, it was submitted that the meetings be held only under her supervision. By its order dated 13. 07. 2012, the High Court permitted Perry to meet Aditya under the supervision of Smriti. Similar orders were passed from time to time. 4. On 06. 11. 2012, Perry filed Guardianship Petition No. 53 of 2012 before the District Courts, Saket, New Delhi praying inter alia: F “a. Declare the petitioner who is natural father of the minor child master Aditya Vikram Kansagra as the legal guardian under Section 7 of the Guardianship and Wards Act, 1890; b. Grant the permanent custody of the minor child master Aditya Vikram Kansagra to the Petitioner; G c.

Pending the hearing and final disposal of the Suit, the Petitioner may be allowed to take minor child master Aditya Vikram to visit his parental home in Kenya MS, 166, 167, James Gichuru Road, Lavington Green, Nairobi, Kenya; 2 H The High Court of Delhi at New Delhi SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 751 [UDAY UMESH LALIT, J. ] d. Pending the hearing the final disposal of the Suit, the Petitioner A may be allowed to take minor child master Aditya Vikram for all holidays summers/ Diwali/ Christmas and any other holiday in India and abroad. ” 5. During the pendency of these proceedings, Aditya was admitted to Delhi Public School, Mathura Road, New Delhi. On 31. 08. 2015, both B the parties submitted before the High Court that they would pursue their remedies in the pending guardianship proceedings before the Family Court and that the suit be disposed of. The suit was accordingly disposed of on 31. 08. 2015. 6.

By various orders the visitation schedule was modified by the C Family Court from time-to-time permitting Perry to have access to and enjoy visitation with Aditya. The interim proceedings taken up in the Guardianship Proceedings were adverted to in detail in the majority decision of this Court dated 28. 10. 2020 while disposing of Civil Appeal No. 3559 of 2020. 7. By its judgment and order dated 12. 01. 2018, the Family Court D allowed the Guardianship Petition and granted custody of Aditya to Perry which was to come into effect after the end of academic session 2017- 2018. 8. Smriti being aggrieved, challenged the decision of the Family Court by filing Mat. App. (F. C. ) No. 30 of 2018 before the High Court, E which appeal was dismissed by the High Court by its judgment and order dated 25. 02. 2020. The High Court affirmed the decision that the custody of Aditya be granted to Perry.

By a separate order passed on the same date, it recorded that Perry was willing to file an undertaking of his mother, holding an Indian passport to ensure compliance of the Order of the Family Court granting visitation rights to Smriti. It also F directed Perry to swear an undertaking before the Indian Embassy in Kenya to the effect that he would submit to the jurisdiction of the Indian Courts; which undertaking would then be filed in the proceedings, in token of his acceptance of the Order. The High Court also passed following additional directions: G “(i) Perry shall apply for a Kenyan passport for the child, if not already done, and Smriti would co-operate in filing the application; (ii) Smriti shall be entitled to talk to the child over audio calls/ video calls for at least 10 minutes everyday at a mutually agreed time which is least disruptive to the schooling and other activities H of the child; 752 SUPREME COURT REPORTS [2021] 10 S. C. R.

A (iii) Smriti shall be entitled to freely exchange e-mails, letters and other correspondences with the child without any hindrance by Perry or his family; (iv) In addition to the grant of temporary custody of the child to Smriti during summer and winter vacations on the dates to be B mutually agreed upon. Smriti may visit the child at Nairobi, Kenya. However, she shall not be entitled to take the child out of Nairobi, Kenya. Perry shall bear the cost of her return air-ticket for travel from India once a year and accommodation for seven days; (v) Smriti shall also file an undertaking before the Court once the C order has attained finality that the directions of the Family Court and the directions given by this Court shall be complied with. The undertaking shall state that the period of visitation as stipulated would be strictly adhered to, and she would return the child to the respondent at the stipulated time.

Further she would not abuse her visitation and contact rights to brainwash the child with negative D comments about the respondent, his family or Kenya. ” 9. In view of the directions of the High Court, following undertaking was sworn by Perry in Kenya and filed in the High Court:- “I Mr. Perry Kansagra S/o Shri Mansukh Lal Patel, aged about 45 years, r/o MS 167 James Gichuru Road, Lavington Green, E Nairobi, Kenya do hereby solemnly affirm and undertake as under:- 1. That I am executing the present undertaking in compliance of Order dated 25. 02. 2020 passed by Hon’ble High Court of Delhi in Mat. App. (F. C. ) No. 30 of 2018. F 2. That I undertake to honour and comply with the visitations rights that have been granted to Mrs. Smriti Madan Kansagra vide Judgment dated 12. 01. 2018 passed by Family Court South East, Saket, Delhi in G-53/2012 and the same has been upheld vide Judgment dated 25. 02. 2020 passed by the Hon’ble High Court of Delhi in MAT APP (F. C. ) No. 30 of 2018. G 3.

That I further undertake to submit to the jurisdiction of the Indian Courts. Sd/- DEPONENT” H SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 753 [UDAY UMESH LALIT, J. ] 10. The aforestated decision of the High Court was challenged A by Smriti by filing Civil Appeal No. 3559 of 2020 in this Court, which appeal was dismissed on 28. 10. 2020. While affirming the findings, following observations were made in the majority decision of this Court:– “(a) To safeguard the rights and interest of Smriti, we have considered it necessary to direct Perry to obtain a mirror order B from the concerned court in Nairobi, which would reflect the directions contained in this Judgement. (b) Given the large number of cases arising from transnational parental abduction in inter-country marriages, the English courts have issued protective measures which take the form of C undertakings, mirror orders, and safe harbour orders, since there is no accepted international mechanism to achieve protective measures.

Such orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The courts have found mirror orders to be the most effective way of achieving protective measures. D (c) The primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time, and has conducted an elaborate enquiry on the issue of custody. The court may direct the parties to obtain a “mirror order” from the court where the custody of the child is being shifted. Such an E order is ancillary or auxiliary in character, and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child. In International Family Law, it is necessary that jurisdiction is exercised by only one court at a time. It would avoid a situation where conflicting orders may be passed by courts in two different jurisdictions on the same issue F of custody of the minor child.

These orders are passed keeping in mind the principle of comity of courts and public policy. The object of a mirror order is to safeguard the interest of the minor child in transit from one jurisdiction to another, and to ensure that both parents are equally bound in each State. G The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and H temporary custody are not impaired. ” 754 SUPREME COURT REPORTS [2021] 10 S. C. R. A Hemant Gupta, J. , authored a dissenting view with following observations:- “102. The issue is to find out the welfare of the Child in parens patriae jurisdiction of this Court.

The question required to be examined is whether this Court should permit the child to be out of its supervisory jurisdiction so as to be a mute spectator to the B possibility of defiance of the order of this Court. I am of the opinion that welfare of the Child would be to stay in India with his mother who has brought up the child for last 11 years. The Child is intelligent but not mature enough to take decisions by himself. Even, the law recognizes that the child of less than 18 years is C incapable of representing himself. Therefore, any opinion of the child is not determinative of the final custody of the child but this Court as parens patriae is duty bound to assess the entire situation to return a finding whether the welfare of the child will be with the mother with visitation rights to the father or custody with the father with visitation rights to the mother.

If the child is moved to D Kenya, there is no way that this Court can enforce the orders to get the child back to India, even if it so desires. ” 11. In the light of its discussion, the directions issued in paragraphs 20 to 22 in the majority decision of this Court were:- E “(a) We direct Perry Kansagra to obtain mirror order from the concerned court in Nairobi to reflect the directions contained in this judgement, within a period of 2 weeks from the date of this judgment. A copy of the Order passed by the court in Nairobi must be filed before this Court; (b) After the mirror order is filed before this Court, Perry shall F deposit a sum of INR 1 Crore in the Registry of this Court, which shall be kept in an interest-bearing fixed deposit account (on auto-renewal basis), for a period of two years to ensure compliance with the directions contained in this judgment.

If this Court is satisfied that Perry has discharged all his obligations G in terms of the aforesaid directions of this Court, the aforesaid amount shall be returned with interest accrued, thereon to the respondent; (c) Perry will apply and obtain a fresh Kenyan passport for Aditya, Smriti will provide full co-operation, and not cause any obstruction H in this behalf; SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 755 [UDAY UMESH LALIT, J.

] (d) Within a week of the mirror order being filed before this Court, A Smriti shall provide the Birth Certificate and the Transfer Certificate from Delhi Public School, to enable Perry to secure admission of Aditya to a School in Kenya; (e) Smriti will be at liberty to engage with Aditya on a suitable video-conferencing platform for one hour over the weekends; B further, Aditya is a liberty to speak to his mother as and when he desires to do so; (f) Smriti would be provided with access and visitation rights for 50% once in a year during the annual vacations of Aditya, either in New Delhi or Kenya, wherever she likes, after due intimation C to Perry; (g) Perry will bear the cost of one trip in a year for a period of one week to Smriti and her mother to visit Aditya in Kenya during his vacations.

The costs will cover the air fare and expenses for stay in Kenya; D (h) Smriti will not be entitled to take Aditya out of Nairobi, Kenya without the consent of Perry; (i) We direct Perry and Smriti to file Undertakings before this Court, stating that they would abide and comply with the directions passed by this Court without demur, within a period of one week E from the date of this judgement. 21. As an interim measure, we direct that till such time that Perry is granted full custody of the child, he will be entitled to unsupervised visitation with overnight access during weekends when he visits India, so that the studies of Aditya are not disturbed. F Perry and his parents would be required to deposit their passports before the Registrar of this Court during such period of visitation. After the visitation is over, the passports shall be returned to them forthwith. 22.

This appeal shall be listed before the Court after a period of G four weeks to ensure compliance with the aforesaid directions, and on being satisfied that all the afore-stated directions are duly complied with, the custody of Aditya Vikram Kansagra shall be handed over by his mother Smriti Kansagra to the father Perry Kansagra. ” H 756 SUPREME COURT REPORTS [2021] 10 S. C. R. A 12. Direction (C) issued in paragraph 20 of the majority decision was thereafter modified by order dated 03. 11. 2020 passed in M. A. No. 2066 of 2020 moved by Perry. By said order, Perry was permitted to take Aditya to Kenya on the strength of a one-time travel document issued by the High Commission of Kenya in New Delhi and to apply for and obtain a Kenyan Passport after arrival of Aditya in Kenya. B 13. On 30. 10. 2020, Perry filed an undertaking in this Court submitting that he would abide by and comply with all the directions contained in the majority decision dated 28. 10.

2020, without any demur, and in letter and spirit. The undertaking which was sworn in Kenya was: - C “I am Perry Kansagra s/o Shri Mansukh Lal Patel, aged about 45 years, r/o MS 167 James Gichuru Road, Lavington Green, Nairobi, do hereby solemnly affirm and stated on oath as under: - 1. That I am the respondent in the captioned matter and I am conversant with the facts and circumstances of the D present case and competent to swear the present affidavit. 2. I am executing the present undertaking in compliance of Judgment dated 28. 10. 2020 passed in the aforesaid matter. E 3. I truly and faithfully undertake to abide and comply with all the directions as mentioned in the Judgment dated 28. 10. 2020 passed by this Hon’ble Court without demur and in its letter and spirit. ” Similarly, Smriti also filed an undertaking on 05. 11. 2020 undertaking F to abide by and comply with the directions of this Court without any demur. 14. On 30. 10.

2020, Perry moved an Originating Summons in the High Court of Kenya at Nairobi seeking registration of the Judgment dated 28. 10. 2020 passed by this Court and for obtaining ‘Mirror Order’. G The title of the application and the opening recitals were:- “REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI FAMILY DIVISION MISCELLANEOUS APPLICATION H NO. OF 2020 SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 757 [UDAY UMESH LALIT, J.

] IN THE MATTER OF FOREIGN JUDGMENTS A (RECIPROCAL ENFORCEMENT) ACT, CAP 43 OF THE LAWS OF KENYA IN THE MATTER OF AN ORDER OF THE SUPREME COURT OF INDIA B ISSUED ON 28th OCTOBER 2020 AN IN THE MATTER OF AVK (A CHILD) AND IN THE MATTER OF SECTION 4, 22, 113 OF THE CHILDREN ACT AND C ARTICLE 53 OF THE CONSTITUTION OF KENYA 2010 FOR AN APPLICATION FOR MIRROR ORDERS BY PERRY KANSAGRA—————EX PARTE APPLICANT D Originating Summons [Under Sections 3, 4, 5 & 6 of the Foreign Judgments (Reciprocal Enforcement) Sections 4, 22, 113 of the Children Act and Articles 53 of The Constitution of Kenya 2010, the Inherent Powers of E the Court and all Enabling Provisions of the Law]. LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers for the hearing of this application which is issued on the application of PERRY KANSAGRA of Post Office Box Number 76817 – 00620, Nairobi for orders: F 1.

THAT this application be certified as urgent, deserving priority hearing and directions ex parte in the first instance. 2. THAT the judgment delivered by the Supreme Court of India in Supreme Court Civil Appeal No. 3559 of 2020 – Smriti Madan Kansagra v. Perry Kansagra be registered. G 3. THAT further, or other orders, be granted so as to give effect to the orders of and in compliance with judgment of the Supreme Court of India made on 28th October 2020. ” After referring to the directions issued by this Court, the application stated :- H 758 SUPREME COURT REPORTS [2021] 10 S. C. R. A “7. That the application is brought in the best interest of the child and to facilitate his return to Kenya to be reunited with his father and family. 8. That the orders sought are necessary to facilitate the taking of such other steps and proceedings as ordered by the Supreme Court B in India…. ” 15. The Order dated 09. 11.

2020 passed by the High Court of Kenya at Nairobi on the aforestated application was:- “REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI C MILIMANI LAW COURTS FAMILY DIVISION HCFOS/EO31 OF 2020 IN THE MATTER OF FOREIGN JUDGMENTS D (RECIPROCAL ENFORCEMENT) ACT, CAP, 43 OF THE LAWS OF KENYA IN THE MATTER OF AN ORDER OF THE SUPREME COURT OF INDIA E ISSUED ON 28th OCTOBER 2020 AND IN THE MATTER OF ADITYA VIKRAM KANSAGRA (A CHILD) F AND IN THE MATTER OF SECTION 4, 22, 113, OF THE CHILDREN ACT, AND ARTICLE 53 OF THE CONSTITUTION OF KENYA, 2010 FOR AN APPLICATION FOR MIRROR ORDERS G BY PERRY KANSAGRA ————————————Exparte APPLICANT IN COURT ON 9th DAY OF NOVEMBER 2020 H BEFORE HON. MR. JUSTICE A. O. MUCHELULE SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 759 [UDAY UMESH LALIT, J. ] O R D E R A THIS MATTER coming up for hearing UNDER CERTIFICATE OF URGENCY before Hon. Justice A. O. Muchelule; AND UPON READING the application; IT IS HEREBY ORDERED; B 1. THAT application certified urgent. 2.

THAT the order of the Supreme Court of India issued on 28. 10. 2020 is hereby registered as prayed. th GIVEN under my hand and the seal of this Court this 9 day of November, 2020. C ISSUED at Nairobi this 11th day of November 2020 I CERTIFY THIS IS TRUE COPY OF THE ORIGINAL DEPUTY REGISTRAR DATED 11/11/2020 HIGH COURT OF KENYA, NAIROBI ____” D 16. Smriti, however, filed Miscellaneous Application No. 2140 of 2020 seeking modification of certain directions issued by this Court in paragraph 20 of the majority decision, which application was disposed of by this Court by its Order dated 08. 12. 2020. Some of the submissions raised by Smriti may be set out here for facility:- E “d. Perry’s undertaking dated 02. 03. 2020 [pg. 30 of Application] that he shall continue to submit to the jurisdiction of the Indian Courts, duly filed by Perry in the High Court and relied upon by him in Supreme Court, kindly be accepted. e. Perry’s mother’s undertaking dated 27. 02. 2020 [pg.

33 of F Application] given before the High Court and duly relied upon in Supreme Court, may kindly be accepted. ” 16. 1 The aforestated submissions were dealt with by this Court in its Order dated 08. 12. 2020 as under: - G “(iii) With regard to the issue at placitum ‘d’, the learned counsel for the respondent has accepted that having given an undertaking to this Court, the respondent has subjected himself to the jurisdiction of this Court. Mr. Shyam Divan, learned Senior Advocate for the appellant however relied upon paragraph 3 of the undertaking dated 02. 03. 2020 given to the High Court to emphasize the absence H 760 SUPREME COURT REPORTS [2021] 10 S. C. R. A of such clear stipulation in the present undertaking regarding submission to the jurisdiction of the Indian Courts. Though, we accept the submission made by the learned counsel for the respondent, it is hereby clarified that paragraph 3 of the undertaking given by respondent dated 02. 03.

2020 to the High Court shall continue to be operative, in addition to the undertaking given to B this Court. (iv) In the context of the matter mentioned against placitum ‘e’, it must be stated that this Court did not deem it appropriate to bind the paternal grandmother of Aditya, because of the various other directions issued in the Judgment, including the one requiring the C respondent to obtain a Mirror Order. The High Court had not insisted upon furnishing of any Mirror Order and, therefore, the direction to have the affidavit of the grandmother who is an Indian citizen, was issued. However, the direction to obtain a Mirror Order was taken to be sufficient security by this Court, to take care of any apprehension that the respondent may not fulfil the obligations D cast upon him by the Judgment. ” 16. 2. With regard to the issue regarding mirror order, the rival submissions as well as the findings of this Court were as under:- “8. We now turn to the issue regarding Mirror Order.

It is submitted by Mr. Divan, learned Senior Advocate for the appellant that what E is contemplated by the directions issued in the Judgment is a binding and valid Mirror Order. In his submission, the Mirror Order must, in all respects, be one which is fully enforceable, and on which complete reliance can be placed by this Court. He has invited our attention to the Foreign Judgments (Reciprocal Enforcement) Act, F CAP, 43 enacted by the Parliament of Kenya (“the Act”, for short) to make provisions for the enforcement of judgments given in countries outside Kenya which accord reciprocal treatment to judgments given in Kenya and for other purposes in connection therewith. G The submissions of Mr. Divan on this issue are:- A) India and Kenya are not reciprocating countries and, as such, the provisions of the Act will not be applicable.

B) In any case, by virtue of Section 3(3) of the Act, nothing in the Act will apply to proceedings in connection with “the H custody or guardianship of children”. SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 761 [UDAY UMESH LALIT, J. ] C) In terms of Section 6(1) of the Act, the registration of a A judgment rendered by a foreign court can be granted, if “the High Court is satisfied as to the proof of matters required by this Act and any rules of court”. D) Since the Act itself will not apply to proceedings in connection with the custody or guardianship of children, the registration B of the Judgment under the Act will be without any consequence in law. E) Any submission about validity of registration can be taken by a judgment debtor in terms of Section 10 of the Act and have the registration set aside. C It is thus submitted that mere registration of the Judgment will not make it enforceable. Reliance is placed on a legal opinion given by Ms. Rubeena Dar a practising lawyer in Kenya.

A copy of Mirror Order dated 14. 05. 2018 issued by Superior Court, J. D. of Stamford, Norwalk pursuant to the directions of the High Court D 3 of Delhi in Dr. Navtej Singh vs. State of NCT and another is also relied upon to submit what a Mirror Order must normally contemplate and provide. The relevant portion of said Order dated 14. 05. 2018 reads:- “1. Plaintiff’s Motion for Order is granted on the application E to Show Cause, docketed at #114. 00. 2. The prior orders for sole physical and legal custody in favour of the Plaintiff shall be recalled. 3. The prior orders remain in place that Jasmeet Kaur is to F return immediately to Connecticut with the minor children. 4.

The minor children shall remain in the custody of Jasmeet Kaur, and the Plaintiff shall have reasonable interim visitation with the minor children as agreed or Court ordered upon the minor children’s return with Jasmeet Kaur to G Connecticut, until further custody orders are determined by the Connecticut Superior Court after granting adequate opportunity of hearing to both the parties. 3 (2018) SCC OnLine Del 75-11 – which was affirmed by this Court in (2019) 17 SCALE 672 H 762 SUPREME COURT REPORTS [2021] 10 S. C. R. A 5. That the Affidavit of Undertaking of the Plaintiff, confirming how he has conformed his conduct to the Order of the High Court of Delhi at New Delhi on March 6, 2018, submitted as Exhibit B to the Motion for Order (Tab 2 of Exhibit 2) is hereby approved and so ordered. B 6. That Attorney William Taylor is hereby appointed as escrow agent pursuant to Exhibit C to the Motion for Order (Tab 3 of Exhibit 2). ” 9. On the other hand, Mr.

Anunaya Mehta, learned Advocate for the respondent has relied upon the provisions of the Judicature C Act of Kenya which empower the High Court of Kenya to exercise jurisdiction in accordance with common law principles and doctrine of equity and upon Article 2(5) of the Constitution of Kenya, 2010, which recognizes the general rules of international law as forming part of laws of Kenya. The opinion given by M/s. GMC Advocates is also relied upon, the relevant portion of which reads as under:- D “Reference may additionally be had to the provisions of Sections 4, 22 and 113 of the Children’s Act 2010 and Article 53 of the Constitution of Kenya 2010 which provide that the best interest and welfare of the child is paramount which would justify grant of orders in the nature E of mirror orders. A Mirror Order is issued by another Court which contains the same terms as those that are contained in the Order being mirrored.

It is the practice in Courts in Kenya that a Mirror Order is granted by registration of entire Judgment F of the Foreign Court by the Court in Kenya. This is done so as to avoid any variation in context, form or substance. The registration of the Foreign Judgment by the Court of Kenya is itself the Mirror Order. Nothing further is required. Reference may be had to Judgment In Re Matter of I W G P (Infant) [2013] eKLR) where in a matter concerning a judgment passed by foreign court in relation to custody and guardianship of a minor, the High Court of Kenya at Nairobi had granted a mirror order. Having regard to the law applicable in Kenya, the application H for grant of a mirror order in accordance with the directions SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 763 [UDAY UMESH LALIT, J. ] contained in the judgment dated 28-10-2020 passed by A supreme Court of India in case titled as “Smriti Madan Kansagra vs. Perry Kansagra” [CA No.

3559/2020] was made on 09-11-2020 before the High Court of Kenya at Nairobi. The application was an ExParte application, as the orders sought were noncontentious in nature, given the fact B that the matter was extensively and conclusively dealt with by the Supreme Court of India and only Mirror Order was sought from High Court of Kenya at Nairobi. The application for grant of a mirror order was allowed by the High Court and the judgment dated 28-10-2020 passed C by Supreme Court of India in case titled as “Smriti Madan Kansagra vs. Perry Kansagra” [CA No. 3559/2020] was registered in its entirety by order dated 09-11-2020. Accordingly, the order dated 09-11-2020 issued by High Court of Kenya at Nairobi in case bearing No. HCFOS/ D E031 of 2020 whereby the judgment dated 28-10- 2020 passed by Hon’ble Supreme Court of India in case titled as “Smriti Madan Kansagra vs. Perry Kansagra” [CA No. 3559/2020] has been registered is a mirror order in compliance with the said judgment. ” E 10.

Having considered the rival submissions, in our view, the Order passed by the High Court of Kenya respectfully deserves and must be shown due deference. Nothing turns on the form and format of the Order, so long as the High Court of Kenya was apprised of all the facts, and the context in which it was approached, for compliance of the directions passed by this Court in the F Judgment. Since the registration of the Judgment passed by this Court has been done under the orders of the High Court of Kenya, we accept the submissions made by the respondent. In our view, the registration of the Judgment is sufficient compliance of the direction to obtain a Mirror Order issued from a competent court G in Kenya. The fact that the registration was given at the instance of the respondent and the unconditional undertaking given by the respondent to this Court, are sufficient compliance of the directions issued by this Court. ” 16. 3.

In the end, following directions were issued by this Court in its Order dated 08. 12. 2020:- H 764 SUPREME COURT REPORTS [2021] 10 S. C. R. A “A) Except for direction issued earlier in paragraph 20 of this Order, and matters accepted by the learned counsel for the respondent, no orders are called for in respect of any of the directions sought for by the appellant. B) All the directions issued in paragraph 20 of the Judgment B hold good, with the addition of the one issued in paragraph 20 of this Order. C) A further affidavit shall be filed by the respondent within three days of this Order, that he shall abide by this Order and the additional direction issued in paragraph 20 of this C Order.

D) The respondent is not required to obtain any fresh Mirror Order in respect of the aforesaid additional direction, before Aditya is taken to Kenya, and it shall be sufficient if an appropriate application to have this Order registered, in the D same manner as the Judgment was registered, is preferred within two weeks of Aditya reaching Kenya, and the copy of such registration is thereafter filed in this Court at the earliest. E) After filing of the further affidavit as stated above, the E respondent shall be at liberty to take Aditya to Kenya as directed earlier in the Judgment. ” 17. Perry filed an undertaking dated 09. 12. 2020 in this Court that he would abide by the Order dated 08. 12. 2020. The undertaking was as under: - F “I Mr. Perry Kansagra s/o Shri Mansukh Lal Patel, aged about 45 years, r/o 167 James Gichuru Road, Lavington Green, Nairobi, Kenya presently in Delhi, India do hereby solemnly affirm and state on oath as under: - 1.

That I am the respondent in the captioned matter and I am G conversant with the facts and circumstances of the present case and competent to swear the present affidavit. 2. I am executing the present affidavit in compliance of the directions in paragraph 21(C) of the Order dated 08. 12. 2020 passed in the aforesaid matter. H SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 765 [UDAY UMESH LALIT, J. ] 3. I state that I shall truly and faithfully abide by the Order dated A 08. 12. 202 and additional direction issued in paragraph 20 of the Order dated 08. 12. 2020 passed by this Hon’ble Court. ” 18. In the aforestated circumstances, in terms of the orders issued by this Court, custody of Aditya was handed over to Perry and Aditya was taken by Perry to Kenya in December 2020. B 19. On 29. 07. 2021, Miscellaneous Application No. 1167 of 2021 was filed by Smriti in Civil Appeal No. 3559 of 2020 with following assertions:- “5.

This Hon’ble Court had directed that the Appellant also be C granted additional access to Aditya, i. e. two trips of one week each to Kenya to meet Aditya. Accordingly, Appellant sought additional access to the child during the Easter break falling in April, 2021 in terms of para 21 of the judgement dated 28. 10. 2020. The Appellant requested the Respondent to facilitate access and visitation in Kenya for a week in April during Aditya’s Easter D Holidays. However, the said access could not take place. Copy of the email dated 30. 03. 2021issued by the Respondent cancelling the visitation during easter is annexed hereto and marked as Annexure P-3 (pg. no. 161 to 162). 6. Though the custody of Aditya was given to the Respondent E father vide the judgment dated 28. 10. 2020, the Appellant’s/mother was granted visitation and access rights to the child.

This Hon’ble Court ensured that both parents were equally involved in the development of Aditya and protected the Appellant’s rights such as including her in the school records and having access to Aditya’s school and participation, when possible, in school events etc. The F Respondent is not complying with the orders passed by this Hon’ble Court. The Appellant-mother’s access and visitation is slowly being reduced. The Appellant’s weekly access over Skype has been reduced from 1 hour to 20 minutes a week. 7. That Aditya has not met the Appellant in last 7 months. This G Hon’ble Court had also directed that Appellant was entitled to 50% of the annual vacation. The Respondent is obstructing the Appellant’s access rights to Aditya. Hence, the Appellant is constrained to file the present application seeking compliance of the directions of this Hon’ble Court in relation to the Appellant’s H 766 SUPREME COURT REPORTS [2021] 10 S. C. R.

A access rights during summer vacation wherein Aditya is to be in the temporary custody of the Appellant for 50% of the summer vacations. Aditya’s school summer vacations have started and the Appellant’s precious time with Aditya is being lost. The obstruction of the Respondent is made evident by the following facts: B a. In terms of judgment dated 28. 10. 2020, the Appellant wrote an email to the Respondent on11. 07. 2021informing the Respondent that she would like Aditya to visit India 01. 08. 2021 to 27. 08. 2021, i. e. , 50% of his summer vacation falling between 10. 07. 2021 to 01. 09. 2021. A copy of the C email dated 11. 07. 2021 is annexed hereto and marked as Annexure P-4 (pg. no. 163). b. b. That the Appellant received no reply to her email dated 11. 07. 2021 and was constrained to issue an urgent reminder to the Respondent vide email dated 15. 07.

2021 wherein the D Appellant reiterated her request to the Respondent of urgently confirming the dates of Aditya’s visit to India, in terms of the judgement dated 28. 10. 2020 and order dated 08. 12. 2020. A copy of email dated 15. 07. 2021 is annexed hereto and marked as Annexure P-5 (pg. no. 164) E c. That the Respondent vide his email dated 16. 07. 2021 informed the Appellant that the summer vacation visitation would not be possible. The Respondent declined to comply with the directions of this Hon’ble Court in view of the ongoing Covid-19 pandemic and for the one-year mourning period being undertaken by Aditya and the Respondent for F the Respondent’s father wherein the Respondent and his family including Aditya have purportedly decided not to travel or go to any hotels. A copy of email dated 16. 07. 2021is annexed hereto and marked as Annexure P-6 (pg. no. 165 to 166) G d. The Appellant reiterated her request of sending Aditya to India vide email dated 21. 07. 2021.

The Appellant assuaged the Respondent’s unreal fears and informed him that Covid- 19 cases in Delhi have drastically reduced, and the situation has improved in Delhi. The cases are on an all-time low in H Delhi as compared to April-May 2021. Appellant, being SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 767 [UDAY UMESH LALIT, J. ] Aditya’s mother is concerned about his safety and health A and only made a request for visitation when the situation regarding Covid-19 cases improved in Delhi. The Appellant also suggested that she was open to working out an arrangement which would be safest and best for Aditya. The copy of the email dated 21. 07 . 2021 is annexed hereto B and marked as Annexure P-7 (pg. no. 167 to 168) e. The Respondent, instead of working out a solution and arrangement for Aditya to meet the Appellant replied vide email on 24. 07. 2021 in a bitter, unpleasant and aggressive manner and again denied the Appellant’s request. A copy C of email dated 24. 07.

2021is annexed hereto and marked as Annexure P-8 (pg. no. 169 to 171). … … … 13. Thus, in view of the above, the present application is being moved for necessary directions directing the Respondent to comply D with the judgment dated 28. 10. 2020 and order dated 08. 12. 2020 and facilitate Aditya’s meeting with the Appellant. The said directions are necessary for the welfare and best interests of the child. The vacation visitation shall ensure that Aditya has a real and effective contact with the mother. ” E 20. The application thus prayed:- “(a) Pass an order directing the Respondent to comply with the judgment dated 28. 10. 2020 and order dated 08. 12. 2020 by facilitating Aditya’s vacation access to the Appellant: inter alia for breach relating to the direction of Aditya being in the temporary F custody of the Appellant during 50% of the summer vacations” 21. The emails dated 11. 07. 2021, 15. 07. 2021, 16. 07. 2021, 21. 07. 2021 and 24. 07.

2021 are quoted hereunder for facility:- “Email dated 11. 07. 2021 G “Dear Perry, As per the term dates on the website of Pepponi School, Nairobi, Aditya’s summer vacation has commenced from 09. 07. 2021 and continues till 02. 09. 2021. I would like to have Aditya visit me from 01. 08. 2021 to 27. 08. 2021. (half of the summer vacation as granted H to me by the Hon’ble Supreme Court). 768 SUPREME COURT REPORTS [2021] 10 S. C. R. A Kindly confirm the same by email. Regards Smriti” Email dated 15. 07. 2021 B “Dear Perry, Please refer to my email dated 11. 07. 2021, wherein I had urgently requested you to confirm the dates of travel for Aditya to visit me during his summer break ‘2021 in terms of the Hon’ble Supreme st Court order. I had suggested 1 Aug 2021 to 27th Aug 2021. C Furthermore, I am informed that an Air India flight (bubble flight) once a week (apparently on every Friday) is functional from Kenya to Delhi via Ahmedabad.

Kindly arrange for him to visit me on rd th 23 July 2021 or 30th July 2021or 6 August 2021 for half of his summer break i. e. appropriately 27 days. I am flexible on dates, D provided the Hon’ble Supreme Court orders are adhered to. I am anxiously awaiting your response and affirmation. Regards Smiriti” E Email dated 16. 07. 2021 “Dear Smriti, I would like to inform you that the whole world is currently in the midst of a major pandemic and throughout the World, Covid Variants like Delta, Delta Plus, Lambda and Kappa are rampant F and causing unprecedented infections and deaths. India has gone through a brutal and lethal Second Wave of Covid which has caused unprecedented deaths in India. There are scientific predictions that India is going to have a Third Wave of Covid Pandemic sometime in August 2021 and the third wave is G likely to infect children more.

Several Countries World over including the UK, Russia, France, Italy, Holland, Germany and Bangladesh amongst many, many others have been experiencing the third wave of Covid. The signs of the Third wave of Covid are also evident as some states in H SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 769 [UDAY UMESH LALIT, J. ] India have already started seeing a rise in the number of Covid A cases. Aditya is aged 12 years and is very well aware of Covid situation and he is very conscious for the safety of himself and his family. I would also like to inform you that all passenger flights between Kenya and India are suspended due to Covid. You are also aware B that due to Covid, Aditya has recently lost his Paternal grandfather. There is a year long mourning in the family and Aditya has chosen not to celebrate any events and also not to travel. Since this Pandemic has caused an irreparable loss to my Family, for the safety and well being of Aditya it is not in the interest of Aditya to C travel.

As you know, there is no Vaccine for children yet. After reading your email dated 11-7-2021 and 15-7-2021 I am disappointed that when the whole world is facing such a pandemic and people are keeping their children home to protect them from the Covid Pandemic, you want Aditya to risk his life to travel five D thousand Kilometers and be exposed to Covid Virus. Your Information with respect to operation of passenger flights by Air India is extremely incorrect. Air India is operating flights only under The Vande Bharat Mission for evacuating nationals. The Relevant portion of Air India Circular for Travel attached. E The Relevant extract of KCAA Circular Kenya attached. Other Relevant attachments: - • https://www. livemint. com/news/india/india-may-witness-third-covid-wave-from-next-month-sbi-report-11625457429589. html F •https://swachhindia. ndtv.

com/third-wave-of-covid-19-likely-to-attack-children-vaccinate-the-parents-quickly-dr-devi-shetty-of-narayana-health-59277/ •https://telanganatoday. com/experts-call-for-caution-ahead-of-third-wave G Therefore in view of the Covid circumstances I am constrained to inform you that Summer vacations visitation with Aditya would not be possible. Regards. Perry” H 770 SUPREME COURT REPORTS [2021] 10 S. C. R. A Email dated 21. 07. 2021 “Dear Perry Pretty surprised to note the aggressive content in your response th dated 16 July 2021 to my email. After all, I am only seeking compliance of the Hon’ble Supreme Court order. Why do you B want to make this adversarial? You pressed for an urgent hearing of the appeal in the Supreme Court in the midst of the pandemic. The Hon’ble Supreme Court permitted you the custody of Adu in middle of pandemic on your asking.

You travelled to India from Kenya with your revered now C dear departed father in order to take the custody of Adu and then took him to Kenya; all during the pandemic. Clearly all your pandemic related pretexts to not comply with the Hon’ble Supreme Court order are just afterthoughts. And yes, Aditya travelled with you to Kenya in December 2020, very much during the pandemic when there were limited flights permitted, just as in the present D situation. The Hon’ble Supreme Court gave the custody of Adu to you as well as visitation rights to me during the pandemic. Access granted to me was not to begin after the pandemic was over. E Being Aditya’s mother, I am most careful and concerned about his safety and security. Please be assured that I will never compromise Aditya’s safety. It has been seven months since Aditya has met his mother and grandmother, who he is extremely close to. Continued physical separation from his mother and grandmother shall have an adverse impact on Aditya.

F No doubt that the second wave in India was brutal, but cases in Delhi have reduced drastically and presently there are on an average only 40 new cases being reported. Positivity of the virus is only 0. 1%. Large number of the population in Delhi have also got vaccinated. All over India the cases are constantly coming G down. There is no requirement of a lockdown nor indeed is there one in Delhi. Even national institutions are opening physically. The second wave of covid is all but finished in India. Moreover, my mother and I are also fully vaccinated. In fact the situation in Delhi regarding Covid-19 cases may be relatively better than in H Nairobi, Kenya. There is no third wave in India. Chances of a SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 771 [UDAY UMESH LALIT, J. ] possible third wave in India, even if it were to occur, is only expected A in late September and October 2021. This is as per the Indian Council for Medical Research; the Apex Medical Body in this regard.

There are even chances that the third wave may not occur at all. The child’s right to meet his mother cannot be violated on such distant apprehensions. Your approach is casual and B dismissive. Your revered father’s demise was really sad. I have extended my heartfelt condolences to you and your family. I reiterate them to you. May his soul rest in peace. I pray that you and your mother find strength to navigate through this difficult time. However, for C a child to meet his mother is nothing to do with breach of mourning that your family may be undertaking. For my child to meet me cannot be seen to be a breach of any custom of your family! Moreover, Aditya meeting his mother and grandmother will only being him love and warmth which is in fact necessary for Aditya right now. D Your email completely denying Aditya’s access to his mother and grandmother is not only against the best interest of Aditya but is also unreasonable and unfair.

Instead of finding a via media or an arrangement where Aditya can meet his mother and grandmother in the safest possible way, your absolute denial is nothing but an E attempt to alienate Aditya from me. Your attempt to alienate Aditya is also revealed from your consistent attempt in reducing Aditya’s weekly skype time from l hour to now 15-20 minutes. During these Skype sessions Aditya looks like he is being controlled and appears to be sad and low. You F appear to be intending to chip away at the sacrosanct Supreme Court orders. Not acceptable. Thus, it is of utmost importance that Aditya is able to meet his mother and grandmother. Though Delhi is safe now, I am open to working out an arrangement which will ensure maximum security G and safety for Aditya. You are aware that My mother and I stayed in Shimla at our house from April to June and it was extremely safe. I could take Aditya to Shimla in order to ensure maximum safety.

I am also open to working out any other arrangement keeping Aditya’s safety in mind. Shimla has negligible covid cases. H 772 SUPREME COURT REPORTS [2021] 10 S. C. R. A Kindly book Aditya’s tickets at the earliest so that he can meet his mother and grandmother. Eagerly waiting to meet Aditya. Looking forward to your cooperation. Regards B Smriti” Email dated 24. 07. 2021 “Dear Smriti, Your perpetual habit of living in a hallucination and La La land C continues. Your email dated 21-7-2021 raising aspersions on the Hon’ble Supreme Court of India are uncalled for. Let me remind you that you left no stone unturned to make sure that the custody case in India gets delayed in perpetuity and you tried to do the same before D the Hon’ble Supreme Court of India. You employed various tactics like filing frivolous applications one after another, so don’t forget your own conduct, acts and deeds.

In December 2020, the regular passenger flights were operating intra country albeit with reduced capacity. It is also relevant to E mention that the fresh Covid cases in India in December 2020 were very less as compared to current figure of around 45,000 daily Covid cases. However currently passenger flights between India and Kenya are completely suspended and I had provided you with the details of said suspension of flights vide my earlier F reply email dated 16-7-2021. Your concern for safety of Aditya in the email does not match with your insistence of calling Aditya to India in the present circumstances and Covid environment. The second wave of Corona is not yet over in India and as a matter of fact as per The G Govt of India, the third wave will hit India between August and October 2021 (Refer to attached link). If the vaccine was the answer to the pandemic, then the whole World would have opened way back and there would not have been severe restrictions and lockdowns.

Lockdowns and restrictions that are increasing by the day. H SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 773 [UDAY UMESH LALIT, J. ] It seems that your memory is either weak or extremely short, as A due to Covid I also did not have my visitations with Aditya from April 2020 till December 2020. That is 9 months of physical separation of Aditya from me due to Covid and at that time I never kept writing you emails for visitations because I was sensible enough to understand the Covid circumstances and restrictions. B With regret I need to tell you that your approach towards Covid is Casual and dismissive, you are behaving as if there is no covid at all. Do not forget the death toll of Covid cases in India stands at staggering 3-5 million people (Refer to attached link). With respect to your reference to Shimla, it is extremely unsafe C as the humungous Tourists visiting Shimla make it unsafe qua Covid.

Secondly, Currently Himachal Pradesh is undergoing massive landslides and road blocks due to the ongoing Monsoons. As you will recollect that earlier also I had requested you to mend your ways with respect to skype meetings with Aditya but you D paid no heed to the same. Please note that the duration of the skype is in the realm of Aditya and nothing to do with me. In case he is talking to you for 15-20 minutes, it appears that your conversation is not sufficient enough to keep him engaged during the skype though you are still having Skype with Aditya every E weekend. Aditya is extremely happy in Kenya, barring the week he lost his grandfather who was very dear to him. In case Aditya is sad and low during skype talks with you, it reflects the non interest of Aditya in your pathetic conversation with him. F Relevant attachments:- *https://economictimes. indiatimes.

com/news/india/true-deaths-due-to-covid-likely-to-be-in-several-millions-not-hundreds-of-thousands-arvind-subramanian/articleshow/84575636. cms *https://timesofindia. indiatimes. com/india/second-wave-not-yet- G over-centre-writes-to-states-says-no-room-for-complacency/ articleshow/84404841. cms H 774 SUPREME COURT REPORTS [2021] 10 S. C. R. A *https://www. hindustantimes. com/india-news/covid-3rd-wave-has-it-arrived-what-government-latest-projection-reports-say- 101626620955675. html *https://www. hindustantimes. com/cities/chandigarh-news/ growing-tourist-rush-raises-covid-concerns-in-himachal- B 101625903253886. html I again reiterate my stand that was conveyed to you vide my reply email dated 16-7-2021. Regards. Perry” C 22. In his reply dated 05. 08. 2021 which was supported by an affidavit sworn in Kenya on 05. 08. 2021, Perry responded as under:- “1.

At the outset, the Respondent seeks to state that there is not even the remotest intention on his part to disobey or violate the D orders passed by this Hon’ble Court including the judgment dated 28. 10. 2020 passed in the captioned matter. However, the ensuing circumstances as a result of the COVID-19 pandemic and its sweep across the World, in the Respondent’s submission, are such that compliance of the direction in relation to visitation of the child in India with the Appellant would not be in the best interest of the E health of the child and therefore, the Respondent prays for exemption from strict compliance of the said direction for the present. …” … … … “2. There is also a logistical issue in Aditya travelling to India. The F Air-bubble flight between Kenya and India would not allow Aditya to travel to India from Kenya since Aditya does not fall under any of the permitted categories of persons who are entitled to travel to India.

Even otherwise the current Covid-19 environment prevalent in India and in the world is not safe for the child to G undertake long distance travel. ” … … … “7. The Respondent, however, is not at all averse to the Appellant meeting the child and is not in any manner intending to deprive the Appellant of her right of visitation under the orders passed by this Hon’ble Court. If the Appellant can find an alternative method of H SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 775 [UDAY UMESH LALIT, J. ] travelling to Kenya even at present, the Respondent would be A more than willing to visitation of appellant with child Aditya in Kenya for the current vacations. ” … … … In reply to paragraph 7 of the application, it was asserted:- B “That para 7 of the application as stated is wrong, false and vehemently denied. It is denied that the Respondent is obstructing the Appellant’s access and visitations, as alleged.

Rather, it is only as a result of supervening circumstances, as explained in detail in the preliminary submissions, that the Respondent believes that Aditya’s travel to New Delhi will not be in his best interest and C welfare, especially from the point of view of his health, and it is for this reason that the Respondent prays for exemption from strict compliance of the direction qua visitation in Delhi at present. Pertinently, the reasons for a hiccup in the visitation schedule is for reasons completely beyond the control of the Respondent – D similar to the circumstances when the Respondent could not travel to India for about 9 months i. e. from April 2020 till December 2020 during the pendency of the main appeal before this Hon’ble Court in view of the Covid-19 pandemic. ” 23.

In her rejoinder to the aforesaid reply, Smriti appended various E documents dealing with the apprehension expressed by Perry and submitted: - “b) That most restrictions imposed by the State Government and Central Government have been lifted or relaxed and a large part of the population in Delhi has already been vaccinated. There has been no lockdown in Delhi for the last two months and all the F important public and private institutions are either already open and functioning or are in the process of doing so. … … … … 2. Thus, in view of the above, it is absolutely safe for Aditya to travel to Delhi and meet his mother and grandmother. The G apprehension and fear of the Respondent regarding Aditya’s visit to India are misplaced and unjustified. 3. As far as Aditya taking a flight and being exposed to other fellow passengers is concerned, Aditya would travel in first class and shall have minimum exposure just like he did when he travelled H 776 SUPREME COURT REPORTS [2021] 10 S. C. R.

A from Delhi to Nairobi in December, 2020. Thus, this fear of the Respondent of Aditya travelling in a flight is not only misplaced but also unreasonable and self-serving. Moreover, all international flights are following prescribed covid appropriate protocol during the flights, similar to the protocol followed in the December 2020 flight taken by Respondent for Aditya while travelling to Nairobi. B 4. It is respectfully submitted that the Aditya is close to his mother and grandmother and it would be incorrect to suggest that he does not want to come to India to meet his mother and grandmother. Aditya’s close attachment to his mother and grandmother has also been observed and noted by this Hon’ble Court when it C interacted with Aditya on 17. 02. 2020. …” 24. The matter was taken up on 11. 08. 2021 when the following order was passed by this Court: - “In the judgment dated 28. 10. 2020 in C. A. No. 35589/2020 and subsequent order dated 08. 12.

2020 passed by this Court, several D issues were touched upon and one of the issues was concerning vacation access to be enjoyed by the mother of the child. In terms of the directions issued by this Court, the child-Aditya was required to join the company of the mother during his vacation. However, because of the prevailing situation pursuant to Covid- E 19 Pandemic, the father was apprehensive and as such Aditya has not yet joined the company of his mother. In the circumstances, M. A. No. 1167 of 2021 has been preferred by the mother seeing appropriate directions to facilitate Aditya’s vacation access to the mother. F Mr. A. S. Chandiok, learned Senior Advocate appearing for the mother submits that she has already booked the flights and Aditya can board the flight leaving Nairobi on 13. 08. 2021 to be with the mother till 01. 09. 2021. G According to Mr.

Chandiok, since the child enjoys the status as “Overseas Citizen of India” card holder, even under the present regime of Air Transport Bubbles, the child can certainly come to India and after the vacation gets over, go back to Nairobi. Mr. Anunaya Mehta, learned advocate submits that the OCI card holder status enjoyed by Aditya was attached to his earlier passport. H SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 777 [UDAY UMESH LALIT, J. ] It is submitted that as noticed in the Judgment dated 28. 10. 2020, A the original passport having been lost, a new passport has been issued in favour of Aditya and the number of said passport does not appear in the OCI Card of Aditya.

Since in terms of the order passed by this Court, the vacation access is to be enjoyed by the mother and the fact that Aditya B was holding a status of OCI card holder, we direct as under: (a) Let an appropriate application seeking renewal of the status as OCI Card Holder be preferred by Perry Kansagra-father of Aditya today itself in the Office of the Indian Embassy at Nairobi. C (b) Upon such application being preferred, the Indian Embassy at Nairobi is directed to process the application immediately. (c) If the Embassy Office finds that Aditya is entitled to the renewal of the OCI card holder Status, appropriate endorsement shall be made or fresh card shall be issued so as to enable Aditya board D the flight on 13. 08. 2021. (d) Perry Kansagra-father of Aditya is at liberty to produce copy of this order before the Indian Embassy at Nairobi for facility. Thus, there would be no impediment in Aditya’s boarding the flight to Delhi on 13. 08. 2021 and return on 01. 09. 2021.

In this process, E the vacation access to his mother shall stand fulfilled. List the matter on 16. 08. 2021 for reporting compliance. ” 25. On 16. 08. 2021, I. A. No. 100550 of 2021 was filed by Smriti submitting: - F “4. That the Respondent did not allow Aditya to board the flight on 13. 08. 2021 and from enquiries made by the Appellant from the Indian High Commission at Nairobi, the Respondent has not taken any steps to renew Aditya’s OCI Card Status. To perpetuate and in furtherance of his mala fides, the Respondent refused to respond to the e-mails issued by the counsel for the Appellant qua G compliance of the aforementioned orders of this Hon’ble Court, as also blocked the Appellant on WhatsApp and email, and also sought to withdraw his legal representation in India, a day before the hearing before this Hon’ble Court. The Respondent has not answered the phone calls of the Appellant. The Appellant has H 778 SUPREME COURT REPORTS [2021] 10 S. C. R.

A detailed the specific acts and conduct of the Respondent in this respect in her affidavit dated 14. 08. 2021 filed before this Hon’ble Court, which may be read as an integral part of this application also. It is respectfully submitted that the aforementioned deliberate conduct of the Respondent is not only mala fide but impedes and obstructs the administration of justice and harm the welfare of B Aditya, while seeking to dilute the majesty of this Hon’ble Court. … … … 6. That the fact the Respondent did not get OCI of the child renewed and attach it to the new passport or take nay steps to apply for visa for Aditya to travel to India shows that the C Respondent did not have any intentions of complying with the judgment dated 28. 10. 2020 from the day it was pronounced. The conduct of the Respondent post the passing of the Judgment dated 28. 10. 2020 and order dated 08. 12. 2020 and 11. 08.

2021 has now established that the Respondent had no intention to allow access D between the child and the mother. 7. The respondent has violated the undertaking given vide an affidavit of compliance given by him to this Hon’ble Court dated 20. 11. 2020 wherein he had given his undertaking to this Hon’ble Court, on solemn oath and affirmation, to comply with its directions. The Respondent had also obtained a mirror order dated 11. 11. 2020 E from the High Court of Kenya, Milimani Law Courts, Family Division wherein the final judgment of this Hon’ble Court dated 28. 10. 2020 was registered (hereinafter referred to as “the mirror order”). The Respondent has thus, willfully defied his undertaking given to this Hon’ble Court and also the mirror order obtained F from the Kenyan High Court. … 8. The Respondent had also given an affidavit of undertaking in the proceedings before the High Court of Delhi to comply with the orders of the Hon’ble Court.

The Respondent’s mother had also given an undertaking to the High Court of Delhi to comply G with the orders of the Hon’ble Court. It requires mention that this undertaking of the mother was not included in the order of 08. 12. 2020 as this Hon’ble Court found that the mirror orders and the Respondent’s undertaking and Rs. 1 crore security were adequate. … H … … … SMRITI MADAN KANSAGRA v. PERRY KANSAGRA 779 [UDAY UMESH LALIT, J. ] 12. The Appellant has had no physical access to Aditya since A 10. 12. 2020. The weekly Skype call as per the final judgment dated 28. 10. 2020 which was to take place on the weekend of 14. 08. 2021 and 15. 08. 2021 was also not facilitated by the Respondent. The Appellant has now been blocked on all means of communication, WhatsApp, Skype, phone and email since 14. 08. 2021. The B Appellant has also left a voice message for Master Aditya to call her back but has not received any call back.

” The prayers made in the application are not extracted here as the same were quoted in the subsequent order dated 17. 8. 2021 passed by this Court. C 26. Since the directions issued by this Court were not complied with, this Court in its Order dated 16. 08. 2021 stated:- “This is in continuation of the order dated 11. 08. 2021 passed by this Court in Miscellaneous Application No. 1167/2021. Despite clear directions issued by this Court in the order dated D 11. 08. 2021, the father-Perry Kansagra has not followed the same. No application has been preferred seeking renewal or grant of OCI Cardholder status. In fact as disclosed by Smriti Kansagra has not even responded to any of the calls made by her. Mr. Anunaya Mehta, learned Advocate instructed by Mr. E Inderjeet Saroop and Mr. P. K. Manohar who was representing Perry Kansagra all the while now reports that Perry Kansagra does not wish to continue their services as Advocates representing him.

He further states that no instructions are being received from Mr. Perry Kansagra and no contact is getting established between the instructing advocates and Mr. Perry Kansagra. F It was on certain clear understanding that this Court allowed the custody of the child to be with Perry Kansagra subject to certain conditions. Those conditions implied that during vacation, the vacation access shall be enjoyed by mother of the child. Non observance of these conditions shows the attitude of Perry G Kansagra. Non observance of the conditions as well as making himself inaccessible definitely betrays defiance on part of Perry Kansagra. Considering these facts, we direct that Mr. Inderjeet Saroop and Mr. P. K. Manohar, learned advocates shall not be discharged and shall continue to represent Perry Kansagra. H 780 SUPREME COURT REPORTS [2021] 10 S. C. R. A Let a copy of this order be immediately transmitted to the Indian Embassy at Nairobi to be served upon Perry Kansagra.

Additionally, the Registry is also directed to send copies of this order as well as order dated 11. 08. 2021 to the Indian Embassy at Nairobi for its record and facility. B List this mater for further consideration as first item on Board on 17. 8. 2021. ” 27. The Order dated 17. 08. 2021 passed by this Court the next day quoted the reliefs prayed for in I. A. No. 100550 of 2021 and proceeded to pass directions as stated therein: - C “I. A. No. 100550/2021 has been filed on behalf of Smriti Madan Kansagra-mother of Aditya praying inter alia: “a. Pass an order taking suo motu cognizance of the conduct of Respondent-Perry Kansagra and initiate appropriate proceedings against him and pass all consequential orders: D b. Issue show cause notice to Respondent-Perry Kansagra as t

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