# SMRITI MADAN KANSAGRA v. PERRY KANSAGRA

- **Citation:** [2021] 10 S.C.R. 742
- **Court:** Supreme Court of India
- **Decided:** 2021-10-07
- **Case number:** Civil Appeal No.3559 of 2020
- **Bench:** Uday Umesh Lalit, Hemant Gupta, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smriti-madan-kansagra-v-perry-kansagra-34718
- **Pages:** 83

## Headnote

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
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 -
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
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
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
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mirror order in compliance of the directions issued by this Court,
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
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 -
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
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.
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
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
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.
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## Text

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[2021] 10 S.C.R. 742
742
SMRITI MADAN KANSAGRA
v.
PERRY KANSAGRA
(Miscellaneous Application No.1167 of 2021)
In
(Civil Appeal No.3559 of 2020)
OCTOBER 07, 2021
[UDAY UMESH LALIT, HEMANT GUPTA AND
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
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 -
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
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
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
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mirror order in compliance of the directions issued by this Court,
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
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 -
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
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.
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
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
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.
SMRITI MADAN KANSAGRA v. PERRY KANSAGRA
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(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
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
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
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
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
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"
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
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and referred to in Paragraph 22. In that affidavit 'P' unequivocally
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.
(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,
'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
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
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, weekend 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
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
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.
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(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
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]
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
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,
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
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
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.
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Moreover, the non-disclosure of material facts by 'P' at the
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
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
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
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
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.
'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: -
(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
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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.
(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.
(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
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
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.
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
[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)
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[2003] 4 Suppl. SCR 543
relied on
Para 37(d)
[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)
CIVIL APPELLATE JURISDICTION: Miscellaneous Application
No.1167 of 2021.
In
Civil Appeal No. 3559 of 2020.
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,
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.
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
'Aditya'), under Sections 7, 8, 10, 11 of the Act1 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.
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
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
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2. On 26.5.2012, Civil Suit (O.S.) No.1604 of 2012 was filed by
Smriti against Perry and his parents in the High Court2 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
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,
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
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
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:
"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;
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 The High Court of Delhi at New Delhi
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d. Pending the hearing the final disposal of the Suit, the Petitioner
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
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
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
allowed the Guardianship Petition and granted custody of Aditya to Perry
which was to come into effect after the end of academic session 20172018.
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,
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
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:
"(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
of the child;
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[UDAY UMESH LALIT, J.]
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(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
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
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
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,
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.
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.
3. That I further undertake to submit to the jurisdiction of the
Indian Courts.
Sd/-
DEPONENT"
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10. The aforestated decision of the High Court was challenged
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
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
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.
(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
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
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.
 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
temporary custody are not impaired."
SMRITI MADAN KANSAGRA v. PERRY KANSAGRA
[UDAY UMESH LALIT, J.]
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 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
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
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
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:-
"(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
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 autorenewal 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
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
in this behalf;
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(d) Within a week of the mirror order being filed before this Court,
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;
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
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;
(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
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.
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
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."
SMRITI MADAN KANSAGRA v. PERRY KANSAGRA
[UDAY UMESH LALIT, J.]
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[2021] 10 S.C.R.
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.
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: -
"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
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.
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
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'.
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
NO. OF 2020
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IN THE MATTER OF FOREIGN JUDGMENTS
(RECIPROCAL ENFORCEMENT)
ACT, CAP 43 OF THE LAWS OF KENYA
IN THE MATTER OF AN ORDER OF THE SUPREME
COURT OF INDIA
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
ARTICLE 53 OF THE CONSTITUTION OF KENYA 2010
FOR AN APPLICATION FOR MIRROR ORDERS
BY
PERRY KANSAGRA-----EX PARTE APPLICANT
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
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:
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.
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 :-
SMRITI MADAN KANSAGRA v. PERRY KANSAGRA
[UDAY UMESH LALIT, J.]
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[2021] 10 S.C.R.
"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
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
MILIMANI LAW COURTS
FAMILY DIVISION
HCFOS/EO31 OF 2020
IN THE MATTER OF FOREIGN JUDGMENTS
(RECIPROCAL ENFORCEMENT) ACT, CAP, 43
OF THE LAWS OF KENYA
IN THE MATTER OF AN ORDER OF THE SUPREME
COURT OF INDIA
ISSUED ON 28th OCTOBER 2020
AND
IN THE MATTER OF ADITYA VIKRAM KANSAGRA (A
CHILD)
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
BY
PERRY KANSAGRA ------------Exparte
APPLICANT
IN COURT ON 9th DAY OF NOVEMBER 2020
BEFORE HON. MR. JUSTICE A.O. MUCHELULE
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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;
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.
GIVEN under my hand and the seal of this Court this 9th day
of November, 2020.
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 ____"
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:-
"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
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: -
"(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
SMRITI MADAN KANSAGRA v. PERRY KANSAGRA
[UDAY UMESH LALIT, J.]
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SUPREME COURT REPORTS
[2021] 10 S.C.R.
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
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
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
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
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,
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.
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
custody or guardianship of children".
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C)
In terms of Section 6(1) of the Act, the registration of 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
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.
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.