Accordingly, we affirm the concurrent findings of the Courts
below.
(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 Judgment.
(b) Given the large number of cases arising from transnational
parental abduction in intercountrymarriages, the English
courts have issued protective measures which take the form of
undertakings, mirror orders, and safe habour 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.
The judgment of the court which had exercised primary
jurisdiction of the custody of the minor child is however not a
matter of binding obligation to be followed by the court where the
child is being transferred, which has passed the mirror order.
The judgment of the court exercising primary jurisdiction would
however have great persuasive value.
(d) The use of mirror orders to safeguard against child abduction
was first analysed by Singer J. In re P (A Child: Mirror Orders) [2000] I FLR 435.
The relevant extracts from that judgment are set out hereinbelow
:
“…Though these are the facts as far as relevant of this
particular case, they in turn reflect a relatively common
situation made ever more common by the frequency of
transnational and transcultural marriage and therefore
inevitably an increased frequency of separation and
breakdown in such marriages. It is nowadays by no means
uncommon to find families upon separation separated by
frontiers or by oceans. Contact to the nonresidential parent
in that parent’s
home country, which often according to circumstance may
be a country with which the child has prior connections,
may be highly desirable. Yet for it to flourish it is necessary
either for there to exist (or to develop if it is lacking) a
confidence mutually between the parents, or for there to be a
satisfactory judicial framework that lessens anxieties and
may help to produce confidence where none exists.
…
As it happens, for some years now, more often of
course in unreported but not infrequently in reported cases,
Family Division judges and judges of the Court of Appeal
have advocated in appropriate cases that the parties before
them, where contact or a move to live abroad is in
contemplation, should provide precisely that form of cordon
sanitaire in that foreign jurisdiction which in this case the
parties would seek to create here for their child.
Thus, England’s judges have invited parties to go off
and get mirror orders or their noncommon
law equivalents
in Chile, Canada, Denmark, the Sudan, Bangladesh, Egypt
and even in Saudi Arabia. For instance, in Re HB
(Abduction: Children’s Objections) [1998] 1 FLR 422, in a
passage at 427H, Thorpe LJ said this:
“… it is important not only that the
parents should combine to contain the children but
also that the court systems in each jurisdiction should
equally act in concert. Once the primary jurisdiction is
established then mirror orders in the other and the
effective use of the [Hague] Convention gives the
opportunity for collaborative judicial function. The
Danish judge and the English judge should in any
future proceedings if possible be in direct
communication.”
…
In Re E (Abduction: NonConvention
Country) [1999] 2
FLR 642, the return of a child to the Sudan, a nonConvention
country, was approved by the Court of Appeal.
In the leading judgment Thorpe LJ observed that:
“… the maintenance of mutual confidence
within the member States is crucial to the practical
operation of the [Hague] Convention. But the
promotion of that confidence is probably most
effectively achieved by the development of channels
for judicial communication … The further development
of international collaboration to combat child
abduction may well depend upon the capacity of
States to respect a variety of concepts of child welfare
derived from differing cultures and traditions. A
recognition of this reality must inform judicial policy
with regard to the return of children abducted from
nonmember
States.”
…
Where the Hague Convention does not apply, mirror
orders find a more prominent place. Again, the situation will
be that it will be the English court inviting the parties to seek
an order in the country to which the child is to return to
reflect, for instance, contact provisions that have been
agreed to take place in England.
The third category is those cases where application is
made for leave to remove permanently from England for a
new life abroad. Again, mirror orders are by no means
untypical or unusual. Again, it is from the foreign court that
the parties will hope to obtain such an order, and it is from
the foreign court that English judges have from time to time
required as a condition that such orders should be obtained.
…
The ‘mirror order’ jurisdiction is supportive of the
foreign order. It is ancillary or auxiliary. It is, if I may term it
such, adjutant. It is there as a safeguard, not to modify the
foreign order but to enforce it if there is need for
enforcement.
…
I therefore have no difficulty at all in concluding that
as a matter of common sense, of comity and indeed may I
say of public policy, the High Court should have the ability
to make orders such as this: that is to say orders of the sort
which English judges have frequently in past years invited
other courts to make.”
(e) The judgment of Singer J. was affirmed by a three judge
bench comprising of Thorpe, Rimer and Stanley Burnton L JJ of
the High Court of Justice, Court of Appeal, Civil Division In re W
(Jurisdiction : Mirror Order) [2014] 1 FLR 1530 : [2011] EWCA Civ 703.. In the words of Thorpe L J., it was
opined that :
“ …One of the imperatives of international family law is to
ensure that there is only one jurisdiction, amongst a number
of possible candidates, to exercise discretionary power at
any one time. Obviously comity demands resolute restraint
to avoid conflict between States. That is the realistic aim of
Conventions and Regulations in this field.
… [
47] Another realistic aim is to provide protective measures
to safeguard children in transit from one jurisdiction to
another or to ensure their return at the conclusion of a
planned visit.
[48] Protective measures take the form of undertakings,
mirror orders and safe harbour orders. As yet there is no
accepted international, let alone universal, mechanism to
achieve protective measures. Even amongst common law
jurisdictions there is no common coin.
[49] In many ways the power to make mirror orders is the
most effective way of achieving protective measures. What
the court in the jurisdiction of the child's habitual residence
has ordered is replicated in the jurisdiction transiently
involved in order to ensure that the parents are equally
bound in each State.
[50] The mirror order is precisely what it suggests, an
order that precisely reflects the protection ordered in the
primary jurisdiction. The order in the jurisdiction transiently
involved is ancillary or auxiliary in character.
[51] This categorisation is well established in our case
law. In F v F ((minors) (custody): Foreign Order)) [1989] Fam
1, [1989] FCR 232, [1988] 3 WLR 959 Booth J directed that
no access should take place in France until a mirror order
was made in that jurisdiction. There are innumerable other
examples of the use of mirror orders both in this jurisdiction
and in other jurisdictions, most but not all States party to
the 1980 Hague Abduction Convention. By way of further
example I cite the case of Re HB [1998] 1 FCR 398, [1998] 1
FLR 422, [1998] Fam Law 128.
…
[53] Undoubtedly the controlled movement of children
across international frontiers would be a good deal safer
and easier if, say, the jurisdictions of the common law world
or the jurisdictions operating the 1980 Hague Convention,
put in place powers to enable mirror orders to be made in
response to appropriate requests.
…
[55] The government's failure to provide an express power
to make mirror orders presented Singer J with the dilemma.
In Re P (A Child: Mirror Order) [2000] 1 FCR 350, [2000] 1
FLR 435, [2000] Fam Law 240 the pressure on the judge to
find jurisdiction was considerable. The request was entirely
meritorious. Accordingly Singer J observed:
“I therefore have no difficulty at all in concluding as a
matter of common sense, of comity and indeed, may I say of
public policy, the High Court should have the ability to make
orders such as this: that is to say orders of the sort which
English judges have frequently, in past years, invited other
courts to make.”
[56] Singer J prefaced his consideration of the
submissions advanced with the following formulation:
“When it makes a mirror order, which of course I would
have no difficulty in doing if the child were physically
present in this country today, the English judge does not
consider the welfare of the child. He takes the order of the
foreign court as read. Thus I can frankly say that I have not
for a moment considered whether I would have provided this
contact or different contact, and indeed I have not
investigated the merits, nor been shown any materials
beyond the order of the American court.
Thus (this argument runs) in taking the jurisdiction to
make such an order without consideration of the welfare
principle which otherwise s 1 of the Children Act would
render paramount, the English Court is exercising a power of
a fundamentally different type from when it considers a
domestic s 8 or inherent jurisdiction dispute and reaches
welfare decisions. The 'mirror order' jurisdiction is
supportive of the foreign order. It is ancillary or auxiliary. It
is, if I may term it such, adjutant. It is there as a safeguard,
not to modify the foreign order but to enforce it if there is
need for enforcement.”
…
[62] For the purposes of this appeal what is valuable
is Singer J's recorded analysis of the essential character of a
mirror order. I would adopt all that he said on that point
which is fundamental to the disposal of the present
appeal…”
(f) The commentary by Dicey, Morris and Collins on Conflict of
Laws discusses the application of mirror orders in the context of
private international law, and opines as :
“…The jurisdictional rules in this clause were given an
extended meaning by Singer J. in Re P (A Child : Mirror
Orders). A United States court was prepared to allow a child
to travel to England on condition that a “mirror order” was
made by the English court to ensure the child’s return. The
English courts have often adopted a similar practice. The
child in the instant was neither habitually resident nor
present in England. Nonetheless an order was made on the
basis of “common sense, comity, and public policy”; it was
expressly limited to the period during which the child was
present in England…”.The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 2, Chapter 19,paragraph 19050,p. 1135.
(emphasis supplied)
(g) The Delhi High Court in Dr. Navtej Singh v. State of NCT of
Delhi & Anr 2018 SCC OnLine Del 7511. directed the husband to obtain a mirror order of
the directions issued by the High Court, from the Superior Court
of the State of Connecticut of Norwalk, U.S.A. The judgment of
the High Court was affirmed by this Court in Jasmeet Kaur v.
State (NCT of Delhi) and Anr.12 2019 (17) SCALE 672.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3559 OF 2020
Smriti Madan Kansagra Vs Perry Kansagra
Author: INDU MALHOTRA, J.
OCTOBER 28, 2020.
Leave granted.
1. The present Appeal arises out of a Guardianship Petition
filed by the Respondentfather
under Section 7, 8, 10 and 11 of
the Guardian and Wards Act, 1890 for the custody of the minor
childAditya
Vikram Kansagra, before the District Courts, Saket,
New Delhi.
2. The Appellantmother
Smriti is an Indian citizen, who was
a practicing lawyer prior to her marriage to the RespondentPerry,
in New Delhi.
The Respondentfather
Perry is of Indian origin, and
Gujrati descent, whose family shifted to Kenya and settled there
since the last three generations, when his grandfather migrated
in 1935. Perry and his family have been settled in Kenya, where
they have established a vast business establishment in Kenya
1
and U.K., and Perry holds a dual citizenship of Kenya and the
U.K.
3. Prior to marriage, Smriti and her mother visited Kenya for
a week to see the place, and satisfy themselves of the family
background, social and financial status, and lifestyle of Perry
and his family.
4. Smriti got married to Perry on 29.07.2007 at New Delhi.
After marriage, Smriti shifted to Nairobi, Kenya and settled in
her matrimonial home.
5. In 2009, Smriti returned to India for childbirth. The son
Aditya Vikram Kansagra was born on 02.12.2009 at New Delhi.
Even though the child was an Indian citizen by birth, a
considered decision was evidently taken by his parents, that he
would hold a dual citizenship of Kenya and UK.
On 01.07.2010 about six months after his birth, Aditya
went to Kenya with his parents. Smriti lived with Perry in Kenya
for 5 years after her marriage, and occasionally visited Delhi
since her mother lives in India.
In February 2012, the entire family had gone to see a
school in Kenya, where Aditya would be admitted for his
education.
6. On 10.03.2012, Aditya came with both his parents to New
Delhi on a return ticket, and was scheduled to return to Kenya
on 06.06.2012.
7. Perry returned to India on 22.04.2012 to spend time with
his family i.e. Smriti and Aditya, and stayed with them at
Smriti’s flat till 26.04.2012. On 26.04.2012, he returned to
Kenya.
2
8. On 26.05.2012, Smriti filed a Suit for Permanent
Injunction bearing C.S. (O.S.) 1604 of 2012 against Perry and
his parents, before the Delhi High Court.
This was the starting point of the commencement of
litigation between the parties for the custody of the minor child.
The proceedings which ensued are briefly outlined hereinbelow.
In para 11 of the Plaint it is stated that :
“11. It bears mention that the Plaintiff No.2 and the
Defendant No.3 were extremely happy with each other after
their marriage. They lived in a state of conjugal happiness,
spend time together, derive joy from each other’s company
and would travel together and the Plaintiff No.2 would
participate, assist and guide the Defendant No.3 in his
business. They had a happy time till the time the Plaintiff
No.1 was born on 02.12.2009. The defendants were
overjoyed of the birth of the male heir and there were lots
and lots of celebrations in India as well as in Kenya.”
In the Suit, the following reliefs were prayed for :
“(a) Pass a decree for permanent injunction restraining the
defendants, their agents, representatives, servants and/or
attorneys in perpetuity from 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.”
8.1. A single Judge of the Delhi High Court vide an exparte
Order dated 28.05.2012 observed that since the minor child is
barely two years old, he would require to remain in the custody
and care of his mother and ought not to be disturbed. The Court
3
restrained the father from removing the minor child from the
custody of his mother.
8.2. Perry filed I.A. No.12429/2012 in the pending Suit,
seeking directions to meet Aditya at some common place, and for
overnight access.
Smriti submitted that she was not averse to the meeting of
the child by the defendants, but the meeting may be allowed
only under her supervision. The meeting could take place at
‘Hang Out’ in Select City Walk, which could take place for 23
hours on Saturday and Sunday, but not for overnight access.
The Delhi High Court vide Order dated 13.07.2012
permitted Perry to meet the child on 3 days at “Hangout” in
Select City Walk from 5 p.m. to 7 p.m., under the supervision of
Smriti, who would maintain a comfortable distance during the
said meeting.
8.3. Similar Orders were passed for the following months from
August 2012 to January 2013, since Perry and his parents were
travelling from Kenya to India every month to visit Aditya.
8.4. By a subsequent Order dated 05.11.2012 passed in I.A.
14034/2012 filed by Perry, the High Court granted Perry and his
parents access through Skype for a maximum period of 15
minutes once a week in the presence of Smriti.
8.5. By a further Order dated 10.04.2013, the High Court
ordered that Perry and his parents would be permitted to visit
Aditya, on Friday, Saturday and Sunday, in the second week of
every month, for 2 hours each day in the presence of Smriti.
This schedule continued every month till March 2016.
8.6. In the meanwhile, on 06.11.2012, Perry filed a substantive
Guardianship Petition No. 53 of 2012 before the District Courts,
Saket, New Delhi wherein it was prayed:
4
“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;
d. Pending the hearing and 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…”
8.7. During the pendency of proceedings, Smriti admitted
Aditya to Delhi Public School, Mathura Road, New Delhi.
Perry moved an application MAT Appeal (FC) No.61/2014
u/S. 151, CPC before the Family Court seeking appropriate
directions for the admission of Aditya to British School, which
would be preferable since it follows the IB curriculum, which is
recognized both in India and overseas. Since the child was
holding a dual citizenship of Kenya and U.K., it would be
preferable for the child to follow an international curriculum. It
was further submitted that Smriti had not consulted him on the
admission of the minor child, before admitting him to Delhi
Public School.
The application was rejected by the Family Court vide
Order dated 17.10.2013, since it would not be appropriate at this
stage to uproot the child in the middle of the session.
8.8. Perry filed I.A. No.3924/2014 in the pending Suit before
the Delhi High Court, seeking unsupervised visitation and
sharing of vacations with Aditya during the 3 days when he
would visit India every month.
5
Smriti in her reply to the said I.A. submitted that the
Kenyan Passport of Aditya which was in her custody had got lost
which she discovered on 28.05.2013. Smriti stated that she had
filed a NonCognizable
Report on 03.07.2014 for loss of the
passport. In Para 11 of the said reply, she alleged that Perry in
April 2012 had in all probability clandestinely removed the
Kenyan passport when he stayed with her. This would be a
relevant factor before an Order of unsupervised visitation or
shared vacations could be passed, since it would aid Perry to
surreptitiously remove the child from the jurisdiction of the
Court by a dishonest use of the Kenyan passport of the child.
8.9. On 31.08.2015, both the parties submitted before the
Delhi High Court that the Suit may be disposed of, leaving the
parties to pursue their remedies in the pending Guardianship
Proceedings before the Family Court.
The Counsel for the defendant made a statement before
the Court that the custody of the child would not be removed by
any of the defendants without due process of law.
The High Court directed that the British passport of Aditya
which had been deposited with the Family Court, be returned to
the defendants for renewal, after which, it would be deposited
with the Family Court. It was left open for the Family Court to
consider the request of the parties for release of the passport in
accordance with law.
The Suit was accordingly disposed of vide Order dated
31.08.2015 in the aforesaid terms.
8.10. On 02.09.2015, Perry filed an I.A. before the Family Court,
wherein he made a prayer for unsupervised visitation and
overnight custody of the child for 2 nights i.e. on Friday and
Saturday on their monthly visits to India.
6
8.11. On 27.01.2016, the Principal Judge of the Family Court
had a detailed interaction with Aditya in Chambers.
The Family Court took note that Perry and his parents had
been meeting the child regularly every month, and found the
child to be attached to his father and paternal grandparents. It
was observed that it would be in the interest of the child if he
could spend quality time and have better interaction with the
father and paternal grandparents for his holistic growth.
The Family Court vide Order dated 09.02.2016 allowed
Perry to meet the child for 2 hours on Friday, and from 10.30
am to 5 pm on Saturday and Sunday, in the second week of
every month, in the presence of the Counsellor at a mutually
agreed place. The Court directed Perry and his parents to
deposit their passports with the Counsellor, before each
visitation.
Perry offered to provide a sum of Rs. 1 lac per month for
the maintenance of Aditya. Perry made a statement before the
Court that he would not take the child out of the jurisdiction of
this Court, and offered to deposit his passport alongwith that of
his parents, so that he could avail of overnight custody of the
child.As undertaken by Perry, the Court in the Order dated
27.01.2016 recorded that he would pay a sum of Rs. 1 lac
towards the maintenance of the child.
8.12. The Family Court by a subsequent Order dated 09.03.2016
partially modified the visitation schedule recorded in the Order
dated 09.02.2016 by consent of parties, and directed that Perry
would meet the child only on two days i.e. Saturday and Sunday,
with an increase in time by 1 hour from 10.30 am to 6 pm, with
no visitation on Friday.
8.13. On 04.05.2016, when Perry was visiting India, he learnt
that the child was unwell, and moved an application to meet the
7
child on the same day. The Family Court directed that Perry
would be allowed to meet the child on the same day from 5 p.m.
to 6 p.m. in the presence of the Counsellor.
8.14. Smriti challenged the Order dated 04.05.2016 before the
Delhi High Court.
The division bench vide Order dated 06.05.2016 directed
that a personal interaction with Aditya would be necessary to
enable the Court to decide the best interest of the child. However,
the visitation Orders passed by the Family Court would continue
to operate in the meanwhile.
The Court directed Smriti to apply for a Kenyan passport of
the child within 10 days, and furnish a copy of the application to
Perry for completing the formalities. The passport as and when
delivered by the Kenyan authorities, would be handed over by
Smriti to the Family Court in the Guardianship Petition, and
kept in a sealed cover for safety.
The High Court appointed Ms. Sadhna Ramachandran as
the Mediator to enable the parties to arrive at a negotiated
settlement of all their disputes. It was further recorded that it
shall be open for the Mediator to join any other person or
relative of the parties, as may be considered necessary for a
holistic mediation.
8.15. Pursuant to the Order of the High Court, the Mediator
requested Ms. Swati Shah, Child Counsellor to join in the
mediation.
8.16. On 11.05.2016, the High Court had a personal interaction
with Aditya. It was noted that the child was comfortable in his
interaction with his father and grandfather, and expressed
happiness on their visitations, and unreservedly stated that he
looked forward to the same. It was apparent that the child was
wellbonded
with his paternal family. At the same time, it was
observed that the child was deeply attached to his mother and
8
nani. It was opined that his bearing and personality revealed fine
upbringing by his mother and maternal grandmother. For his
holistic development, the child required nurturing from both his
parents, as well as love of grandparents on both sides. The Court
noted that the British passport of the child had been deposited
by Perry with the Family Court.
The Court directed that visitation would be maintained as
per the Order 09.03.2016 passed by the Family Court.
It was agreed by the parties that given the ensuing
summer vacations, Perry and his parents could be given longer
visitation in the first week of June 2016.
8.17. On 11.08.2016, the report of the Child Counsellor was
submitted before the High Court, which was taken on record, and
a copy whereof was provided to both the parties. Smriti raised an
objection on the admissibility of the reports submitted by the
Mediator and Counsellor, contending that the Reports of the
Mediator and Counsellor could not be relied upon in view of the
principle of confidentiality.
8.18. The division bench vide order dated 17.02.2017 held that
where the subject of mediation pertains to a parentchild
issue,
the report of a Mediator, or Child Counsellor would not fall within
the bar of confidentiality. Such reports were a neutral evaluation
of expert opinion, and guide the Court as to what orders may be
passed in the best interest of the child. These reports were not
confidential communications of the parties.
It was directed that the Family Court would consider
granting overnight interim custody to Perry on his trips to India,
by imposing such terms and conditions which would ensure that
the child is not removed from the territory of India. The
proceedings in the Appeal before the High Court being MAT. App
9
(F.C.) 67 of 2016 were closed since no further orders were
required to be passed in the Appeal.
8.19. Smriti filed C.M. Appl. 42790/2017 for review of the
judgment dated 17.02.2017 passed by the division bench on the
issue whether the Counsellor’s report could be used by either of
the parties during trial. The matter came up for consideration
before another division bench of the High Court, which allowed
the review petition. The division bench vide Order dated
11.12.2017 held that the mediation report should contain
nothing except the report of failure. The report of the Mediator, or
the Counsellor, should not be treated as part of the record, and
must be disregarded by the Family Court when it proceeds to
decide on the merits of the case.
8.20. Aggrieved by the Order dated 11.12.2017, passed in the
review application, Perry filed SLP (C) No.9267/2018. This Court
vide a detailed judgment dated 15.02.2019 allowed the Appeal,
and set aside the Order passed in the review petition, and
restored the Order dated 17.02.2017 which had been passed by
the earlier division bench of the High Court. It was held that the
Court while exercising parens patriae jurisdiction, is required to
decide upon what would be in the best interest of the child. In
order to reach the correct conclusion, the Court may interview
the child, or may depend on the analysis of an expert who would
be able to spend more time with the child, and gauge the
upbringing, personality, desires or mental frame of the child, and
render assistance to the Court. It is for this reason that
confidentiality is departed from in child custody matters under
subrule
(viii) of Rule 8 of the Family Courts (Procedure) Rules,
1992. It was held that a child may respond naturally and
spontaneously in the interactions with the Counsellor who is
10
professionally trained to make the child feel comfortable. A record
of such interactions may afford valuable inputs to the Court
while exercising its parens patriae jurisdiction. If during such
interaction, aspects concerning the welfare of the child are
noticed, there is no reason why the Court should be deprived of
access to such reports, for deciding the best interest of the child.
The normal principle of confidentiality would therefore not
apply in matters concerning custody or guardianship, and the
Court must be provided with all material touching upon relevant
issues to render complete justice between the parties.
8.21. The Family Court framed two issues for final determination
(i) whether the Guardianship Petition was maintainable, since it
was contended by Smriti that Perry Kansagra was a foreigner,
and could not invoke the jurisdiction of the Guardians and
Wards Act, 1890 read with the Hindu Minority and Guardianship
Act, 1956; (ii) whether the father was entitled to be declared the
guardian of the minor child, and granted custody.
(a) With respect to the first issue of maintainability, the
Family Court held that this objection had been raised only
during arguments. Perry was therefore denied the opportunity
to rebut these objections in his pleadings. Since this issue
was not purely legal, and was a mixed question of fact and
law, it could not be raised at this stage. Furthermore, since it
was not disputed that Perry was a Hindu by religion, who was
living outside the territories of India, he would also be
governed by the Hindu Minority and Guardianship Act, as
provided by Section of the said Act. The Court further held
that in a case of custody the domicile of the child would be
the determinative factor, and not the domicile of the
Petitioner. Accordingly, the Guardianship Petition was held to
be maintainable.
11
(b) With respect to the second issue, the Court held that Perry
being the biological father of Aditya was a natural guardian as
per Section 6(a) of the Hindu Minority and Guardianship Act.
Despite the distance, the father had been visiting the child
every month, and paying a substantial amount towards his
maintenance.
While examining the issue relating to the welfare of the
child, the Court was of the opinion that for allround
best
development and growth of the child, the love and affection,
and care by both parents was necessary. A suggestion was
made to work out a shared parenting schedule. However,
Smriti declined to hold any talks to work out a shared
parenting schedule.
On the undisputed facts, the Family Court was of the view
that given the future prospects of the child, the same would
be best taken care of by the father. Aditya was the heir
apparent of the vast businesses set up by Perry and his
family, and to deprive him of his legitimate right to inherit the
aforesaid business, would definitely not be in his best
interest. The grooming of the child under the care of his
father and grandfather would be in his best interest. Business
interest and the knack to deal with people could not be learnt
in any business school. The local language in Kenya i.e.
Kiswahili could not be learnt overnight. The child can best
pick up the local language by being brought up in the
atmosphere where the language is spoken and widely used.
The Family Court also placed reliance on the observations
of the High Court with respect to the personal interaction
with the child, recorded in the Order dated 11.05.2016, which
12
revealed the positive observations made about the comfort
level between the child and his father and paternal
grandparents.
That even though, the mother had sought to restrain the
father from meeting the child without her consent, which was
evident from Prayer (c) of her Suit filed before the Delhi High
Court, the father was able to obtain visitation pursuant to
Orders passed by the High Court from time to time. The
attempt of the wife to alienate the child from the father was
evident from the Aadhaar Card of the child, his bank opening
account form, and his school admission form, wherein the
name of the father was not even mentioned. The admission to
Delhi Public School, Mathura Road was obtained in the
‘single parent category’. The conduct of the mother was held
not to be in the best interest of the child.
On a conspectus on the fact situation, the Family Court
took the view that the father, who is the natural guardian of
the child, was a more suitable guardian for the child. The
future of the child was most secure with the father. The
mother had unauthorizedly retained the custody of the child
for a period of almost 6 years.
Smriti being a parent, however could not be deprived of her
right to maintain her contact and relationship with the child.
It was directed that during the summer and winter vacations
in school, the child would remain in the temporary custody of
his mother.
To facilitate the transfer of permanent custody of Aditya to
Perry, it was directed that during school holidays longer than
5 days, Perry would be entitled to take the child to U.K. or
Kenya, so that the minor child gets familiarised with the
13
atmosphere to which he would be eventually transferred. All
visitations henceforth would be unsupervised with overnight
stay.
Accordingly, the Family Court vide its final judgment and
order dated 12.01.2018 allowed the Guardianship Petition
filed by Perry Kansagra, and granted permanent custody to
him at the end of the academic session 201718.
8.22. Aggrieved by the judgment passed by the Family Court,
Smriti filed Mat. App. (F.C.) 30/2018 and CM App. 49507/2018
before the Delhi High Court.
The High Court vide Order dated 13.04.2018 directed that,
during all visitations, the passports of Perry and his parents
would be deposited with the Court, and released after the
visitation was over. It was further ordered that Perry would have
overnight visitation of Aditya from 10:30 am on the second
Saturday of every month till 6 pm on the following Sunday.
8.23. The Delhi High Court vide the impugned judgment and
order dated 25.2.2020, dismissed the appeal filed by Smriti. The
preliminary objection raised by Smriti that the Guardianship
Petition filed by Perry was not maintainable, was rejected inter
alia on the ground that Section 9 of the Guardians and Wards
Act provides territorial jurisdiction to the Court, if the application
is made before the District Court where the minor ordinarily
resides. By virtue of Explanation (g) to Section 7(1) of the Family
Courts Act, 1984 r.w. Section 7(1)(b), the Family Court
established under the said Act is deemed to be a District Court
for proceedings with respect to the guardianship of the custody of
a minor. Reliance was also placed on Section 1 of the Hindu
Minority and Guardianship Act, 1956 which provides that this
14
Act extends to the whole of India, and also to Hindus domiciled
outside India.
The High Court rejected the issue raised by the Appellant
that the Respondent was racist and considered persons of
African descent to be beneath him. This allegation was found to
be unfounded, since the Respondent and his family had a vast
business interest in Kenya, where he had been residing ever
since his birth. If the Respondent had such an attitude, it would
have been impossible for him to run such a vast business
enterprise in that country.
The issue regarding Perry being an alcoholic, was held to
be unsupported by any evidence. This allegation was sought to
be corroborated by Smriti through the testimony of RW2.
The
Family Court had discredited the evidence of this witness
regarding the alleged incidents mentioned by her, since the same
were not corroborated by her own evidence, despite being
present at that event. The evidence of RW2
was also discarded
on the ground that he was an interested witness, who was close
to the Counsel for the Appellant. The High Court affirmed these
findings, and disbelieved the testimony of RW2,
being an
interested witness, and found the allegations to be
uncorroborated.
With respect to the allegation of Smriti, that Perry was
allegedly in an adulterous relationship with a woman named
Sonia from Mozambique, which she had discovered from certain
messages on his Blackberry, could not be relied on as the same
was not free from doubt, and could not be proved.
With respect to the allegation that a criminal case had
been registered against Perry on account of a dam burst in Solai
farms owned by Perry and his family, which led to the death of
48 persons, the Court held that the mere registration of a
15
criminal case in Kenya, could not be read to mean that Perry
was guilty of the offence of manslaughter. There was nothing
brought on record to even remotely suggest that the incident had
created a hostile environment in Kenya against Perry. The other
contention that if Perry would remain busy with the trial, he
would not be able to look after the child, was also rejected as
being devoid of any merit.
The High Court found that even though the child was born
in India, a conscious decision had been taken by both Smriti
and Perry to obtain dual citizenship of Kenya and United
Kingdom for Aditya, which was indicative of the intention that
the child would not be brought up in India. Furthermore, Smriti
could not take advantage of the fact that the child had remained
in India throughout since 10.03.2012. This had occurred on
account of the Suit filed by Smriti, wherein she had obtained an
injunction from the High Court in the Suit, and deprived Perry of
custody of the child. The child had stayed in India since 2012
only on account of the time taken by the litigation between the
parties. Despite the same, Perry had been visiting the child every
month, and had made repeated attempts for extending his
visitation rights.
The High Court held that Smriti had tried to alienate the
child from the father, since she had sought to restrain Perry and
his parents from even meeting the child without her consent, or
in her absence. The Court took note of the fact that she had
withheld the name of the father in the Aadhaar card, the school
admission form, wherein the name of the respondent had been
struck off and “single parent” had been written.
The Court took note of the fact that Perry had been visiting
India every month since 2012 to spend time with Aditya, which
16
showed his genuine love and affection for his child. His
dedication despite all odds kept the bond alive.
The High Court vide judgment and order dated 25.02.2020
dismissed the Appeal, and held that the father was in a better
position to take care of the child, and it would be in the best
interest of the child, if the custody was granted to the father.
8.24. By a separate Order dated 25.02.2020, the High Court
recorded that Perry was willing to file an undertaking of his
mother who holds an Indian passport, before the Court, to
ensure compliance with the Order of the Family Court granting
visitation rights to Smriti. Perry would file an undertaking before
the Indian embassy in Kenya, in token of his acceptance of the
Order, and that he would submit to the jurisdiction of the Court
and the consequences which may follow, in case the Order is not
faithfully complied with.
The High Court passed the following additional directions:
(i) Perry shall apply for a Kenyan passport for the child, if not
already done, and Smriti would cooperate
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;
(iii) Smriti shall be entitled to freely exchange emails,
letters
and other correspondences with the child without and
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
17
to take the child out of Nairobi, Kenya. Perry shall bear the
cost of her return airticket
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 order 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.
8.25. In compliance with the Order dated 25.02.2020, Perry filed
an Undertaking dated 02.03.2020 before the High Court, wherein
it was stated that he would honour and comply with the
visitation rights granted to Smriti in the judgment dated
12.01.2018 passed by the Family Court, and affirmed by the
High Court vide judgment dated 25.02.2020.
8.26. Aggrieved by the judgment passed by the High Court,
Smriti filed the present Special Leave Petition before this Court.
This Court vide Order dated 04.03.2020 requested both the
parties and Aditya to remain present in Chambers on
16.03.2020. In the meanwhile, it was directed that the extent and
nature of visitation granted by the High Court would continue.
8.27. By a further Order dated 12.03.2020, an interim direction
was passed whereby Perry would continue to comply with the
directions of the High Court in the Order dated 13.04.2018,
whereby Perry and his parents would deposit the passports
before the registry of the High Court prior to each visitation.
18
8.28. On 17.03.2020, Smriti, Perry and Aditya appeared in
Chambers before this Court, when we had a personal interaction
with both Perry and Smriti individually, and thereafter we spoke
to Aditya in the absence of his parents, to gauge his inclinations,
expectations, preferences and aspirations. We found Aditya to be
selfconfident
and articulate for his age, who was comfortable
and at ease in interacting with us. He had great clarity about his
interest to pursue his education overseas, and was interested to
travel to the U.K. and other places. He revealed deep love and
affection for his mother and naani. At the same time, we
observed that he had a strong bond and attachment to his father
and paternal grandparents.
9. Submissions of Smriti
Smriti has objected to the custody of Aditya being handed
over to Perry at this juncture till he attains majority, for various
reasons, which are briefly mentioned hereinbelow :
9.1. Smriti submitted that she had sacrificed her career in the
legal profession to bestow her undivided attention to look after
Aditya. She had singlehandedly
got Aditya admitted to a
premier school in Delhi. Aditya while he was under her care, had
excelled in his studies, and had ranked amongst the top five in
his class. Apart from academics, it was submitted that he was
the captain of his cricket team, and actively participated in
dramatics.
9.2. Smriti submitted that she had provided Aditya with a
holistic upbringing, by encouraging him to meet his father and
paternal grandparents, and would invite Perry and his parents
for Aditya’s birthdays, and ensure that Aditya would call Perry
on his birthday. In school projects pertaining to family members,
19
Smriti would ask Aditya to put up pictures of Perry and his
paternal grandparents.
9.3. Smriti has alleged that Perry was a racist and an alcoholic
who would turn violent, and misbehave socially after drinking,
and would not be a fit and suitable guardian for Aditya.
9.4. Smriti has alleged marital infidelity against Perry, and
submitted that he was in an adulterous liaison. It was submitted
that he had got into an affair with a woman in Mozambique
called Sonia, which came to her knowledge in April 2012, when
Perry was on a visit to New Delhi. She stumbled upon certain
loving and explicit messages exchanged on his Blackberry
between Perry and Sonia.
9.5. It was further submitted that the Solai Dam burst tragedy
which took place in May 2018 on the Solai farms owned by
Perry, led to the death of 48 persons, and resulted in widespread
hostility and anger against Perry and his family. Perry was
facing trial on the charge of manslaughter before the Kenyan
criminal courts. It would therefore not be in the interest of the
child, if Perry who is facing a criminal trial in these cases, is
made the guardian of Aditya.
10. Submissions of Perry
10.1. It was submitted on behalf of Perry that Smriti had
indulged in parental alienation. The first step was when she
came back to India in March 2012, she filed a Suit before the
Delhi High Court, wherein she had inter alia prayed for a
permanent injunction restraining Perry and his parents from
even meeting the child in perpetuity, without her consent /
presence.
10.2. During the past 8 years, Perry was provided with very
limited access and visitation rights with Aditya, even though he
20
and his parents were travelling for 36 hours every month to meet
him.
10.3. On the issue of parental alienation, Perry contended that
Smriti had filed a Suit for injunction before the Delhi High Court
wherein it was inter alia prayed for a decree of permanent
injunction restraining Perry and his parents in perpetuity from
meeting Aditya without the consent/presence of Smriti.
It was only after Perry moved an I.A. for Directions before
the High Court to meet Aditya at a neutral venue, that he was
granted supervised access in the presence of Smriti. Throughout
the proceedings, Perry moved several I.A.s from time to time
praying for increased visitation rights and overnight access.
The applications moved by Perry for increased visitation
were opposed at every stage by Smriti, and she insisted on
supervised and limited access, even though there was no chance
of him removing the child from the jurisdiction of the Court,
since the passports of his parents and himself, were deposited
with the Court before every visitation. Till 2016, the visitation
rights were under the supervision of Smriti, and thereafter vide
Order dated 09.02.2016, under the supervision of the Child
Counsellor.
The maximum visitation granted to Perry was two days
every month, which was increased to overnight access for one
day vide Order dated 13.04.2018 passed by the High Court.
10.4. It was submitted on behalf of Perry that Smriti had, in all
the official documents of the child, represented Aditya to be the
child of a “single parent” in the Admission Form to School, and
the name of the father was scored out; even in the Aadhar Card,
the name of the father was not mentioned; as also in the bank
account opening form.
21
Perry submitted that Smriti withheld information regarding
the admission of the child to regular school. She firmly opposed
the suggestion made by Perry to admit Aditya in an international
school, whether British School or Pathways School, which would
be more beneficial to him, being a foreign national.
On 16.12.2013, Perry sent an email to Smriti that it would
be in the best interest of the child to admit him in Pathways
School, Noida (an international school which follows the IB
curriculum).
Smriti replied to this email on 30.12.2013, stating that :
“The aspect of education forms part of the larger
scheme of comprehensive settlement as mutually agreed. At
the cost of repetition, I would like to reiterate that the
primary aspects in this regard are suitable accommodation
and creation of a fund for Aditya’s ongoing education and
maintenance. Therefore, simultaneously kindly finalise all
these aspects, including alimony, in entirety.…”
(emphasis supplied)
It was submitted on behalf of Perry that her response
showed that she was using the custody of Aditya to work out a
more beneficial settlement for herself, rather than consider the
best interest of the child.
10.5. Smriti was unwilling to share Aditya’s progress reports in
school. The progress reports were made available only after a
legal notice was issued to Smriti, followed by an application
being filed before the Family Court. Smriti gave an undertaking
to the Family Court on 19.12.2016, that she would mail the
academic record and school reports of Aditya to Perry, as also
the school calendar for each year.
10.6. It was further submitted that academics was not high on
priority for Smriti, which would be evident from Aditya’s school
records for the years 201516
and 201617.
The academic
22
session for 201516
revealed poor attendance of 111 days out of
175 working days, which would show that the child remained
absent for 36.5 % of that academic session. In 201617,
the
attendance was 138 out of 178 working days, which was
absence of 22.5% of the academic year. Such absence from
school was reflective of the indifference of the mother to the
education of the child.
11. Discussion and Analysis
We have carefully considered and deliberated upon the oral
and written submissions made by Mr. Shyam Divan, Senior
Advocate, instructed by Mr. P. Banerjee and Ms. Nidhi Mohan
Parashar on behalf of the Appellant; and the submissions made
by Mr. Anunaya Mehta, Advocate instructed by Ms. Inderjeet
Saroop, Advocate representing the Respondent.
The issue which has arisen for our consideration is as to
what should be the dispensation to be followed with respect to
the custody of the minor childAditya
who is now 11 years of
age, till he attains the age of majority in 7 years’ time.
11.1. It is a wellsettled
principle of law that the courts while
exercising parens patriae jurisdiction would be guided by the
sole and paramount consideration of what would best subserve
the interest and welfare of the child, to which all other
considerations must yield. The welfare and benefit of the minor
child would remain the dominant consideration throughout.
The courts must not allow the determination to be clouded
by the inter se disputes between the parties, and the allegations
and counterallegations
made against each other with respect to
23
their matrimonial life. In Rosy Jacob v. Jacob A Chakarmakkal1
this Court held that :
“15…The children are not mere chattels: nor are they
mere playthings for their parents. Absolute right of parents
over the destinies and the lives of their children has, in the
modern changed social conditions, yielded to the
considerations of their welfare as human beings so that they
may grow up in a normal balanced manner to be useful
members of the society.”
(emphasis supplied)
A three Judge bench of this Court in V.Ravichandran (2) v
Union of India & Ors.2 opined :
“27…it was also held that whenever a question arises
before a Court pertaining to the custody of a minor child, the
matter is to be decided not on considerations of the legal
rights of the parties, but on the sole and predominant
criterion of what would serve the best interest of the minor.”
(emphasis supplied)
11.2. Section 13 of the Hindu Minority and Guardianship Act,
1956 provides that the welfare of the minor must be of
paramount consideration while deciding custody disputes.
Section 13 provides as under :“
13. Welfare of minor to be paramount consideration
(1) In the appointment of declaration of any person as guardian
of a Hindu minor by a court, the welfare of the minor shall be the
paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of
the provisions of this Act or of any law relating to guardianship
in marriage among Hindus, if the court is of opinion that his or
her guardianship will not be for the welfare of the minor.”
This Court in Gaurav Nagpal v. Sumedha Nagpal3 held that
the term “welfare” used in Section 13 must be construed in a
1 (1973) 1 SCC 840.
2 (2010) 1 SCC 174.
3 (2009) 1 SCC 42.
24
manner to give it the widest interpretation. The moral and
ethical welfare of the child must weigh with the court, as much
as the physical wellbeing.
This was reiterated in Vivek Singh v.
Romani Singh4, wherein it was opined that the “welfare” of the
child comprehends an environment which would be most
conducive for the optimal growth and development of the
personality of the child.
11.3. To decide the issue of the best interest of the child, the
Court would take into consideration various factors, such as the
age of the child; nationality of the child; whether the child is of
an intelligible age and capable of making an intelligent
preference; the environment and living conditions available for
the holistic growth and development of the child; financial
resources of either of the parents which would also be a relevant
criterion, although not the sole determinative factor; and future
prospects of the child.
11.4. This Court in Nil Ratan Kundu v. Abhijit Kundu5 set out the
principles governing the custody of minor children in paragraph
52 as follows:
“ Principles governing custody of minor children
52. In our judgment, the law relating to custody of a child is
fairly well settled and it is this: in deciding a difficult and
complex question as to the custody of a minor, a court of law
should keep in mind the relevant statutes and the rights
flowing therefrom. But such cases cannot be
decided solely by interpreting legal provisions. It is a human
problem and is required to be solved with human touch. A
court while dealing with custody cases, is neither bound by
statutes nor by strict rules of evidence or procedure nor by
precedents. In selecting proper guardian of a minor, the
paramount consideration should be the welfare and wellbeing
of the child. In selecting a guardian, the court is
exercising parens patriae jurisdiction and is
expected, nay bound, to give due weight to a child's ordinary
4 (2017) 3 SCC 231.
5 (2008) 9 SCC 413.
25
comfort, contentment, health, education, intellectual
development and favourable surroundings. But over and
above physical comforts, moral and ethical values cannot be
ignored. They are equally, or we may say, even more
important, essential and indispensable considerations. If the
minor is old enough to form an intelligent preference or
judgment, the court must consider such preference as well,
though the final decision should rest with the court as to
what is conducive to the welfare of the minor.”
11.5. Section 17 of the Guardian and Wards Act, 1890 provides :
“17. Matters to be considered by the Court in appointing
guardian
(1) In appointing or declaring the guardian of a minor, the Court
shall, subject to the provisions of this section, be guided by
what, consistently with the law to which the minor is
subject, appears in the circumstances to be for the welfare of
the minor.
(2) In considering what will be for the welfare of the minor, the
Court shall have regard to the age, sex and religion of the
minor, the character and capacity of the proposed guardian
and his nearness of kin to the minor, the wishes, if any, of a
deceased parent, and any existing or previous relations of
the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference,
the Court may consider that preference.
(4) deleted
(5) The Court shall not appoint or declare any person to be a
guardian against his will.”
(emphasis
supplied)
11.6. In the present case, the issue of custody of Aditya has to
be based on an overall consideration of the holistic growth of the
child, which has to be determined on the basis of his preferences
as mandated by Section 17(3), the best educational
opportunities which would be available to him, adaptation to the
culture of the country of which he is a national, and where he is
26
likely to spend his adult life, learning the local language of that
country, exposure to other cultures which would be beneficial
for him in his future life.
12. Personal Interaction of the Courts with the minor :
Section 17(3) of the Guardians and Wards Act, 1980
provides that if the minor is old enough to form an intelligent
preference, such a choice would be of crucial importance in
assisting the Court to arrive at a judicious decision on the issue
of custody of the minor child.
In the present case, Aditya is by now almost 11 years of
age. It has been observed by the Family Court, the Child
Counsellor, and the High Court in their personal interactions
with the child at different stages of the proceedings, that he was
a bright and articulate child, who was capable of unequivocally
expressing his preferences and aspirations.
We will now briefly touch upon the interactions of the
Courts with Aditya, and the findings in this regard :
(a) The Principal Judge, Family Court had a personal
interaction with Aditya on 27.01.2016 when he was 6 years
old. The Family Court in the Order dated 09.02.2016 notes
that the child was attached to his father and grandparents,
and observed that it would be in the interest and welfare of
the child to have better interaction with his father for
strengthening the bond, and for his holistic growth. The
Court took the view that longer meeting hours would enable
the father to spend quality time with the child, and that it
would be in the interest of Aditya to have exclusive time with
his father, in the absence of the mother.
27
(b) During the mediation proceedings, the Child Counsellor
interacted with the child on 08.07.2016 and 11.07.2016,
based on which the Report dated 21.07.2016 was submitted
to the High Court.
The detailed report of the Counsellor gives a clear and
valuable insight of the mental disposition and inclination of
the child, which are most relevant for deciding the issue of
custody and guardianship of the child.
The relevant extract from the Report reads as under:
“…Aditya stays with his mother in Delhi while his father
travels from Kenya once every month to visit him. While
speaking of his parents, Aditya showed lot of closeness and
affinity for his father which was surprising for a child who
lives with his mother and spends very little time with the
father only during visitation. Father seems to be the person
he idolises. He also talked affectionately of his Dada in
particular and Dadi (paternal grandparents). He talked
about the house in Kenya which he might be knowing only
through pictures seen during visitation as he was very
young when Smriti returned to India alongwith him.
Various questions were asked to know more about Aditya’s
leanings towards his father and whether his expressions of
love and affinity were genuine. Aditya is ready to go to
Kenya. He also mentioned that if he can’t go to Kenya now,
he would do so when he grows up a bit. He talked about
staying in England for further education which his Papa
would provide for. His affection and bond with his father
seemed genuine and not something that appears tutored or
forced in some manner.
Aditya seems comfortable with his mother and Nani
(maternal grandmother) as well. In my second session with
Aditya, he talked about his recent vacation in Kashmir
alongwith his mother and how he went fishing there. When
asked if he goes to Kenya and doesn’t like it there or misses
his mother what could be done, he answered that he would
come back to Delhi. However, he is not uncomfortable at the
idea of making a trip to Kenya. When asked about acquiring
a toy game or a skill (playing darts) his talk was all father
centric. According to Smriti, his scholastic progress is
28
satisfactory at the moment. However, he may face
difficulties in higher grades as it was observed that his
general ability to spell and calculate seems somewhat
weak.
In matrimonial disputes, when custodial issues arise, young
children generally show affinity and inclination towards the
parent to whom their custody belongs and they live with.
Aditya surprisingly shows more affection towards Perry and
his demeanour sounds genuine.
While adopting holistic approach to the child’s growth, it
may be considered to allot more time to Perry during further
visitations and then extend it to overnight visitations….”
(emphasis supplied)
(c) The High Court had a personal interaction with the child,
which is recorded in the Order dated 11.05.2016. The
relevant extract from the said Order reads as:
“3. The son of the parties Master
Aditya Vikram
Kansagra has been produced before us today. We have also
had a long conversation with him and are deeply impressed
with the maturity of this intelligent 6½ year old child who
displays self confidence and a remarkable capacity of
expressing himself with clarity. He exhibits no sign of
confusion or nervousness at all.
4. We also note that the child was comfortable in his
interaction with his father and grandparents in court. The
child has expressed happiness at his visitations with his
father and grandparents. He unreservedly stated that he
looks forward to the same. Master Aditya Vikram Kansagra
is also able to identify other relatives in Kenya and
enthusiastically refers to his experiences in that country. It
is apparent that the child has bonded well with them.
5. We must note that the child is at the same time deeply
attached to his mother and Nani. His bearing and
personality clearly bear the stamp of the fine upbringing
being given to him by the appellant and her mother.
6. As of now, since 9th February, 2016, the child is
meeting his father and grandparents between 10:30 am and
05:00 pm on Saturday and Sunday in the second week of
every month and for two hours on Friday in the second
week of every month. The visitation is supervised as the
court has appointed a Counsellor who has been directed to
remain present throughout the visitation.
7. We are informed that the child has two passports –
one Kenyan and the other British. The Counsellor appears to
have been appointed for two purposes firstly
to assuage
the appellant’s fear that the child would be removed from
India and secondly, to ensure his comfort. The second
purpose appears to have been achieved.
8. It cannot be disputed that for his complete
development, the child needs nurturing from both parents
and the love of all grandparents and relatives, if possible.
Quality time with his parents and relatives is undeniably in
his welfare. The constant presence of the counsellor –
certainly an outsider – would certainly prevent the
intimacies between a son, his father and grandparents i.e.
close family. They have no quality “private” family time.”
(emphasis supplied)
(d) In the Supreme Court, we had called Perry, Smriti and
Aditya for a personal interaction in Chambers on 17.03.2020.
By this time, the child was over 10 years old. We found Aditya
to be a bright and articulate child for his age, who was quite
confident, and expressed with clarity about his inclinations
and aspirations. We found the child to be emotionally
balanced, who was deeply attached to his mother and
maternal grandmother, with whom he lives, and at the same
time exhibited a strong and deep bond with his father, which
had evidently grown by the regular visitations of his father
and grandparents
every month during the past 8 years. He
expressed a strong interest for going to Kenya for his
education, and for higher studies to the U.K. He expressed a
keen interest to travel overseas, for which he had got no
opportunity so far.
30
(e) What emerges from all these interactions of Aditya with the
Courts since 2016 when he was 6 years old, till the present
when he is almost 11 years old, is a very positive attitude
towards his father and paternal grandparents, even though
he has not lived with them since the age of 2½ years when he
was a toddler, and had come to India on a visit in March
2012, after which he did not go back.
We place reliance on the Report of the Counsellor dated
21.07.2016, wherein it has been recorded that Aditya idolises
his father Perry, and was ready to go to Kenya. The affection
and bond of the child with his father was found to be
genuine, and not something which was tutored or forced in
any manner. The Counsellor recorded that Aditya surprisingly
showed more affection towards Perry, and that his demeanour
sounded genuine.
As per Section 17(3), the preferences and inclinations of
the child are of vital importance for determining the issue of
custody of the minor child. Section 17(5) further provides that
the court shall not appoint or declare any person to be a
guardian against his will.
In view of the various personal interactions which the
courts have had at different stages of the proceedings, from
the age of 6 years, till the present when he is now almost 11
years old, we have arrived at the conclusion that it would be
in his best interest to transfer the custody to his father. If his
preferences are not given due regard to, it could have an
adverse psychological impact on the child.
13. Other considerations regarding the welfare of the minor
Having considered his preferences and aspirations, we will
now consider other aspects with respect to the welfare of the
child.
(a) Aditya is a citizen of Kenya and U.K., even though he was
born in India. Evidently, his parents took a conscious
decision to obtain dual citizenship of Kenya and U.K. for him
soon after his birth, when he ceased to be an Indian citizen,
by virtue of the Explanation to Clause 2 of Rule 7 of the
Registration of Foreigners’ Rules, 1982 and Section 9 of the
Citizenship Act, 1955.
Aditya travelled to India in 2012 on a Kenyan passport,
with an OCI card attached to his passport. The Kenyan
passport was cancelled in 2016 when a noncognizable
report
was filed by Smriti regarding the loss of his passport.
Subsequently, no steps were taken to obtain a fresh Kenyan
passport to date.
The factum of his nationality is a relevant aspect which
has to be given due consideration while deciding the issue of
custody of the child.
In Re L (minors) (wardship: jurisdiction)6, the Court of
Appeal in England held that every matter having relevance to
the welfare of the child should be taken into account and
given such weight as the court deems fit, subject always to
the welfare of the child being treated as paramount.
Nationality is a factor which is an important aspect and must
be taken into consideration, to determine where the welfare of
the child would lie.
6 [1974] 1 All ER 913.
32
(b) The educational opportunities which would be available to
the child is an aspect of great significance while determining
the best interest of the child.
It was submitted on behalf of Perry that he has secured
admission for Aditya in the Nairobi International School,
which follows the IB curriculum. This would be more
beneficial to him, given the fact that he is a dual citizen of
Kenya and United Kingdom, and intends to pursue further
education overseas. Being a citizen of United Kingdom, the
child would get various opportunities as a citizen for
admission to some of the best universities for further
education, which would be in his best interest.
(c) It is necessary that Aditya gets greater exposure by
overseas travel. It is important for him to be exposed to
different cultures, which would broaden his horizons, and
facilitate his allround
development, and would help him in
his future life.
(d) The minor child Aditya is the heir apparent of a vast family
business established by the family of Perry in Kenya and U.K.
Since the businesses of the paternal family are primarily
established in Kenya and the U.K., it would be necessary for
Aditya to imbibe and assimilate the culture and traditions of
the country where he would live as an adult.
It would also be necessary for him to learn the local
language of Kiswahili, and adapt himself to the living
conditions and surroundings of the country. Since the child is
still in his formative years of growth, it would be much easier
for him to imbibe and get acclimatized to the new
environment.
(e) The minor child has been in the exclusive custody of his
mother from birth till adolescence, which is the most crucial
33
formative period in a person’s life. Having completed almost
11 years in her exclusive custody, Aditya is now entitled to
enjoy the protection and care of his father, for his holistic
growth and development. However, Smriti’s continued
participation in the growth and development of the child
would be crucial. It must be recognized that Smriti has given
her best to Aditya, and had him admitted in one of the best
public schools in Delhi. The credit must also go to her for
ensuring that the child is emotionally balanced, and has not
tutored him against his father and paternal family.
14. Objection regarding racism
The objection raised by Smriti regarding Perry being racist
has not been established from the material on record. Perry and
his family have been living in Kenya for over 85 years, and have
established an extensive business in that country. There is no
evidence brought on record to substantiate the allegation, except
an oral submission made on behalf of Smriti. We do not feel that
any importance can be given to this objection as a ground for
refusing custody of the child to Perry.
15. Objection regarding excessive drinking
With respect to the allegation of alcoholism and excessive
drinking made by Smriti, both the Family Court and the High
Court have considered this objection at length and considered
the evidence led by her in this regard. She had produced R.W.2,
a practicing advocate from the chambers of her Counsel, who
has deposed with respect to two incidents which allegedly took
place at social events in Delhi. The evidence of R.W.2 was
discarded as being unreliable, by both the Family Court and the
High Court, since it was not corroborated by the evidence of
34
Smriti and her mother, who were present on both these
occasions. Furthermore, since R.W.2 and his wife were
colleagues of her counsel, and she herself had been an associate
in the same office, the Courts below were of the view that R.W.2
was an interested witness, and his evidence could not be relied
upon, and had to be disregarded. We, therefore, reject this
objection as being unsubstantiated.
16. Allegation of marital infidelity
The allegation of marital infidelity made by Smriti as a
ground to refuse custody to Perry, has been seriously disputed
by him. The allegation is based on certain messages which
Smriti submits that she stumbled upon, when Perry was visiting
India in April 2012. She states that she found Perry busy
sending messages from his Blackberry. When she happened to
read these messages, she found that Perry had received certain
romantic messages from a woman named Sonia from
Mozambique. She submits that she forwarded the messages to
her own email address, which were downloaded and filed before
the Family Court in the Guardianship proceedings.
Perry has strongly refuted these allegations on the ground
that the messages were fabricated by Smriti. It was submitted
that there was not even a mention of these messages in her
Police complaint filed on 05.05.2012, which was immediately
after she had allegedly stumbled upon these messages.
Furthermore, there is no mention of such messages/emails in
the Plaint of Suit No.1604/2012 filed by Smriti on 26.05.2012
before the Delhi High Court. There is no mention of the
messages allegedly exchanged by a woman named Sonia from
Mozambique with Perry, or the contents of the messages.
35
It was submitted that Smriti has given different versions in
each of the proceedings, which would show that they are devoid
of any truth.
The typed copies of these messages were produced for the
first time in 2017 with her evidence in the Guardianship
proceedings before the Family Court, which were given “Mark
B”.
On a perusal of the messages in “Mark B”, we find that
Perry is supposed to have received these messages from Sonia
on 02.04.2012 and 04.04.2012.
In her affidavit of evidence dated July 2017, Smriti stated
that Perry received these messages on 22.04.2012, which
were forwarded to her email address “immediately”. These
emails were dated 05.05.2012 and 06.05.2012 and
exhibited as Exhibit RW1/4 Colly.
In her Evidence by way of Affidavit dated 03.07.2017,
Smriti states as follows :
“29. In April 2012 only, during his visit to Delhi, I came
across certain messages on the phone of the Petitioner I
came across various messages in the Blackberry phone of
the Petitioner exchanged between one Ms.Sonia and him. I
immediately emailed the said messages to my email
account. The messages have already been marked as Mark
B by P.W.1 in her evidence and I am marking the emails
containing the messages as Exhibit RW 1/4 Colly. …”
(emphasis supplied)
Smriti filed a certificate dated 18.09.2017 under S.65B of
the Indian Evidence Act, 1872 before the Family Court, which
states :
“2. That the emails dated emails dated 05.05.2012 and
06.05.2012 contains messages received by the Petitioner.
The said emails have been collectively exhibited as Exhibit
RW1/4 during my cross examination.
…
5. I confirm that the print outs of the said Emails as filed
before the Hon’ble Court are identical to the Emails
contained in my inbox.”
36
In the Supreme Court, it was submitted that the messages
were dated 22.04.2012, which she had forwarded from the
Blackberry of Perry to her cellphone in April 2012. These
messages were emailed to her email ID from her cellphone in
May 2012.
Perry contended that this was an entirely new version with
respect to the messages, which had not been raised either
before the Family Court or the High Court.
Perry challenged the authenticity of these messages, and
submitted that these emails were forged and fabricated by
Smriti. The emails show that they had been sent on
05.05.2012 and 06.05.2012, on which dates Perry was
admittedly not in India.
Perry further submitted that the emails have been
fabricated by Smriti, since she could easily have typed out the
content of these messages on her own cellphone, and then
emailed it to her email account.
Section 65B of the Indian Evidence Act, 1872 provides :
“65B.
Admissibility of electronic records.—(1)
Notwithstanding anything contained in this Act, any
information contained in an electronic record which is
printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer (hereinafter
referred to as the computer output) shall be deemed to be
also a document, if the conditions mentioned in this section
are satisfied in relation to the information and computer in
question and shall be admissible in any proceedings,
without further proof or production of the original, as
evidence of any contents of the original or of any fact stated
therein of which direct evidence would be admissible.
(2) The conditions referred to in subsection
(1) in respect of a
computer output shall be the following, namely—
(a) the computer output containing the information was
produced by the computer during the period over which the
computer was used regularly to store or process information
for the purposes of any activities regularly carried on over
37
that period by the person having lawful control over the use
of the computer;
(b) during the said period, information of the kind contained
in the electronic record or of the kind from which the
information so contained is derived was regularly fed into
the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the
computer was operating properly or, if not, then in respect of
any period in which it was not operating properly or was out
of operation during that part of the period, was not such as
to affect the electronic record or the accuracy of its contents;
and
(d) the information contained in the electronic record
reproduces or is derived from such information fed into the
computer in the ordinary course of the said activities.
….
(4) In any proceedings where it is desired to give a
statement in evidence by virtue of this section, a certificate
doing any of the following things, that is to say,—
(a) identifying the electronic record containing the statement
and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the
production of that electronic record as may be appropriate
for the purpose of showing that the electronic record was
produced by a computer;
(c) dealing with any of the matters to which the conditions
mentioned in subsection
(2) relate,
and purporting to be signed by a person occupying a
responsible official position in relation to the operation of the
relevant device or the management of the relevant activities
(whichever is appropriate) shall be evidence of any matter
stated in the certificate; and for the purposes of this subsection
it shall be sufficient for a matter to be stated to the
best of the knowledge and belief of the person stating it.”
(emphasis supplied)
The certificate u/S. 65B produced by Smriti merely states
that the content of the emails placed on record were the same
as the content of the emails on her inbox. This certificate does
not certify the source of the messages allegedly received on
the Blackberry of Perry, which were transferred to her
cellphone. In the absence of a certificate in accordance with
38
S.65B, with respect to the source of the messages, we cannot
accept the same as being genuine or authentic.
This Court in a recent decision delivered by a bench of
three Judges in Arjun Pandit Rao Khotkar v. Kailash
Kushanrao Gorantyal7 held as under :
“59. We may reiterate, therefore, that the certificate required
under Section 65B(4) is a condition precedent to the
admissibility of evidence by way of electronic record, as
correctly held in Anvar P.V. (supra), and incorrectly
“clarified” in Shafhi Mohammed (supra). Oral evidence in the
place of such certificate cannot possibly suffice as Section
65B(4) is a mandatory requirement of the law. Indeed, the
hallowed principle in Taylor v. Taylor, (1876) 1 Ch.D 426,
which has been followed in a number of the judgments of
this Court, can also be applied. Section 65B(4) of the
Evidence Act clearly states that secondary evidence is
admissible only if lead in the manner stated and not
otherwise. To hold otherwise would render Section 65B(4)
otiose.”
(emphasis supplied)
The Family Court rejected the allegations of marital
infidelity based on the aforesaid emails.
The High Court also holds that the emails were dated
05.05.2012 and 06.05.2012; on which dates, Smriti could not
have had access to the Blackberry of Perry, since Perry had
left India on 26.04.2012, which has been admitted by Smriti
in her examinationinchief.
In view of the aforementioned
facts, and the law laid down
by this Court, we are unable to place reliance on the emails
with respect to the allegations of marital infidelity. We,
therefore, affirm the findings of the Family Court and High
Court in this regard.
17. Criminal proceedings pending against Perry
The Counsel for Smriti placed great emphasis on the
pendency of criminal proceedings against Perry arising out of the
7 2020 SCC OnLine SC 571.
dam burst in the Solai farms owned by him and his family. It
was submitted that the pendency of criminal proceedings
against him would be the most determinative factor for declining
guardianship to Perry.
Perry refuted these allegations, and informed the Court
that it was on account of unprecedented rainfall in May 2018 in
Kenya, that several dams had burst in different parts of the
country, which caused the death of some civilians living in those
areas. He placed reliance on the Report of UNICEF, and
documents to show that the dam burst had occurred on account
of a natural calamity. It was submitted that there was no
culpability on the part of Perry, nor was there any hostility from
the local populace against him and his family members. This
would also be evident from the fact that his grandmother who
was 101 years old, was living alone in Solai Farms.
We were informed by the Counsel for Perry that he had
been acquitted of all charges by the Trial Court. The Order of
acquittal was however challenged before the High Court, which
remanded the matter to the Trial Court for a retrial,
which is
pending as on date.
We are of the view that the pendency of this case is not a
valid ground to refuse custody of Aditya to his father. The
criminal proceedings have arisen out of a natural disaster, and
cannot be blown out of proportion to contend that he would be
unfit for grant of custody of his son.
18. For the aforesaid reasons, we are of the view that it would be
in the best interest of Aditya, if his custody is handed over to his
father Perry Kansagra. Once Aditya shifts to Kenya, he would be
required to adapt to a new environment and study in a new
educational system with a different curriculum. It would be in the
best interest of the minor if he is able to go to Kenya at the earliest,
so that he has some time to adapt to the new environment, before
the new term starts in January 2021 in the Nairobi International
School.
This would, however, not imply that the mother would be kept
out of the further growth, progress and company of her son. Smriti
would be provided with temporary custody of the child for 50% of
his annual vacations once a year, either in New Delhi or Kenya,
wherever she likes. Smriti will also be provided access to Aditya
through emails, cellphone and Skype during the weekends.
19. Accordingly, we affirm the concurrent findings of the Courts
below.
(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 Judgment.
(b) Given the large number of cases arising from transnational
parental abduction in intercountry
marriages, the English
courts have issued protective measures which take the form of
undertakings, mirror orders, and safe habour 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.
The judgment of the court which had exercised primary
jurisdiction of the custody of the minor child is however not a
matter of binding obligation to be followed by the court where the
child is being transferred, which has passed the mirror order.
The judgment of the court exercising primary jurisdiction would
however have great persuasive value.
(d) The use of mirror orders to safeguard against child abduction
was first analysed by Singer J. In re P (A Child: Mirror Orders) [2000] I FLR 435.
The relevant extracts from that judgment are set out hereinbelow
:
“…Though these are the facts as far as relevant of this
particular case, they in turn reflect a relatively common
situation made ever more common by the frequency of
transnational and transcultural marriage and therefore
inevitably an increased frequency of separation and
breakdown in such marriages. It is nowadays by no means
uncommon to find families upon separation separated by
frontiers or by oceans.
Contact to the nonresidential
parent in that parent’s
home country, which often according to circumstance may
be a country with which the child has prior connections,
may be highly desirable. Yet for it to flourish it is necessary
either for there to exist (or to develop if it is lacking) a
confidence mutually between the parents, or for there to be a
satisfactory judicial framework that lessens anxieties and
may help to produce confidence where none exists.
…
As it happens, for some years now, more often of
course in unreported but not infrequently in reported cases,
Family Division judges and judges of the Court of Appeal
have advocated in appropriate cases that the parties before
them, where contact or a move to live abroad is in
contemplation, should provide precisely that form of cordon
sanitaire in that foreign jurisdiction which in this case the
parties would seek to create here for their child.
Thus, England’s judges have invited parties to go off
and get mirror orders or their noncommon
law equivalents
in Chile, Canada, Denmark, the Sudan, Bangladesh, Egypt
and even in Saudi Arabia. For instance, in Re HB
(Abduction: Children’s Objections) [1998] 1 FLR 422, in a
passage at 427H, Thorpe LJ said this:
“… it is important not only that the
parents should combine to contain the children but
also that the court systems in each jurisdiction should
equally act in concert. Once the primary jurisdiction is
established then mirror orders in the other and the
effective use of the [Hague] Convention gives the
opportunity for collaborative judicial function. The
Danish judge and the English judge should in any
future proceedings if possible be in direct
communication.”
…
In Re E (Abduction: NonConvention
Country) [1999] 2
FLR 642, the return of a child to the Sudan, a nonConvention
country, was approved by the Court of Appeal.
In the leading judgment Thorpe LJ observed that:
“… the maintenance of mutual confidence
within the member States is crucial to the practical
operation of the [Hague] Convention. But the
promotion of that confidence is probably most
effectively achieved by the development of channels
for judicial communication … The further development
of international collaboration to combat child
abduction may well depend upon the capacity of
States to respect a variety of concepts of child welfare
derived from differing cultures and traditions. A
recognition of this reality must inform judicial policy
with regard to the return of children abducted from
nonmember
States.”
…
Where the Hague Convention does not apply, mirror
orders find a more prominent place. Again, the situation will
be that it will be the English court inviting the parties to seek
an order in the country to which the child is to return to
reflect, for instance, contact provisions that have been
agreed to take place in England.
The third category is those cases where application is
made for leave to remove permanently from England for a
new life abroad. Again, mirror orders are by no means
untypical or unusual. Again, it is from the foreign court that
the parties will hope to obtain such an order, and it is from
the foreign court that English judges have from time to time
required as a condition that such orders should be obtained.
…
The ‘mirror order’ jurisdiction is supportive of the
foreign order. It is ancillary or auxiliary. It is, if I may term it
such, adjutant. It is there as a safeguard, not to modify the
foreign order but to enforce it if there is need for
enforcement.
…
I therefore have no difficulty at all in concluding that
as a matter of common sense, of comity and indeed may I
say of public policy, the High Court should have the ability
to make orders such as this: that is to say orders of the sort
which English judges have frequently in past years invited
other courts to make.”
(e) The judgment of Singer J. was affirmed by a three judge
bench comprising of Thorpe, Rimer and Stanley Burnton L JJ of
the High Court of Justice, Court of Appeal, Civil Division In re W
(Jurisdiction : Mirror Order) [2014] 1 FLR 1530 : [2011] EWCA Civ 703.. In the words of Thorpe L J., it was
opined that :
“ …One of the imperatives of international family law is to
ensure that there is only one jurisdiction, amongst a number
of possible candidates, to exercise discretionary power at
any one time. Obviously comity demands resolute restraint
to avoid conflict between States. That is the realistic aim of
Conventions and Regulations in this field.
… [
47] Another realistic aim is to provide protective measures
to safeguard children in transit from one jurisdiction to
another or to ensure their return at the conclusion of a
planned visit.
[48] Protective measures take the form of undertakings,
mirror orders and safe harbour orders. As yet there is no
accepted international, let alone universal, mechanism to
achieve protective measures. Even amongst common law
jurisdictions there is no common coin.
[49] In many ways the power to make mirror orders is the
most effective way of achieving protective measures. What
the court in the jurisdiction of the child's habitual residence
has ordered is replicated in the jurisdiction transiently
involved in order to ensure that the parents are equally
bound in each State.
[50] The mirror order is precisely what it suggests, an
order that precisely reflects the protection ordered in the
primary jurisdiction. The order in the jurisdiction transiently
involved is ancillary or auxiliary in character.
[51] This categorisation is well established in our case
law. In F v F ((minors) (custody): Foreign Order)) [1989] Fam
1, [1989] FCR 232, [1988] 3 WLR 959 Booth J directed that
no access should take place in France until a mirror order
was made in that jurisdiction. There are innumerable other
examples of the use of mirror orders both in this jurisdiction
and in other jurisdictions, most but not all States party to
the 1980 Hague Abduction Convention. By way of further
example I cite the case of Re HB [1998] 1 FCR 398, [1998] 1
FLR 422, [1998] Fam Law 128.
…
[53] Undoubtedly the controlled movement of children
across international frontiers would be a good deal safer
and easier if, say, the jurisdictions of the common law world
or the jurisdictions operating the 1980 Hague Convention,
put in place powers to enable mirror orders to be made in
response to appropriate requests.
…
[55] The government's failure to provide an express power
to make mirror orders presented Singer J with the dilemma.
In Re P (A Child: Mirror Order) [2000] 1 FCR 350, [2000] 1
FLR 435, [2000] Fam Law 240 the pressure on the judge to
find jurisdiction was considerable. The request was entirely
meritorious. Accordingly Singer J observed:
“I therefore have no difficulty at all in concluding as a
matter of common sense, of comity and indeed, may I say of
public policy, the High Court should have the ability to make
orders such as this: that is to say orders of the sort which
English judges have frequently, in past years, invited other
courts to make.”
[56] Singer J prefaced his consideration of the
submissions advanced with the following formulation:
“When it makes a mirror order, which of course I would
have no difficulty in doing if the child were physically
present in this country today, the English judge does not
consider the welfare of the child. He takes the order of the
foreign court as read. Thus I can frankly say that I have not
for a moment considered whether I would have provided this
contact or different contact, and indeed I have not
investigated the merits, nor been shown any materials
beyond the order of the American court.
Thus (this argument runs) in taking the jurisdiction to
make such an order without consideration of the welfare
principle which otherwise s 1 of the Children Act would
render paramount, the English Court is exercising a power of
a fundamentally different type from when it considers a
domestic s 8 or inherent jurisdiction dispute and reaches
welfare decisions. The 'mirror order' jurisdiction is
supportive of the foreign order. It is ancillary or auxiliary. It
is, if I may term it such, adjutant. It is there as a safeguard,
not to modify the foreign order but to enforce it if there is
need for enforcement.”
…
[62] For the purposes of this appeal what is valuable
is Singer J's recorded analysis of the essential character of a
mirror order. I would adopt all that he said on that point
which is fundamental to the disposal of the present
appeal…”
(f) The commentary by Dicey, Morris and Collins on Conflict of
Laws discusses the application of mirror orders in the context of
private international law, and opines as :
“…The jurisdictional rules in this clause were given an
extended meaning by Singer J. in Re P (A Child : Mirror
Orders). A United States court was prepared to allow a child
to travel to England on condition that a “mirror order” was
made by the English court to ensure the child’s return. The
English courts have often adopted a similar practice. The
child in the instant was neither habitually resident nor
present in England. Nonetheless an order was made on the
basis of “common sense, comity, and public policy”; it was
expressly limited to the period during which the child was
present in England…”.The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 2, Chapter 19,paragraph 19050,p. 1135.
(emphasis supplied)
(g) The Delhi High Court in Dr. Navtej Singh v. State of NCT of
Delhi & Anr 2018 SCC OnLine Del 7511. directed the husband to obtain a mirror order of
the directions issued by the High Court, from the Superior Court
of the State of Connecticut of Norwalk, U.S.A. The judgment of
the High Court was affirmed by this Court in Jasmeet Kaur v.
State (NCT of Delhi) and Anr.12 2019 (17) SCALE 672.
20. In view of the aforesaid discussion, we consider it just and
appropriate that the custody of Aditya Vikram Kansagra is handed
over by his mother Smriti Madan Kansagra, to the father Perry
Kansagra, subject to the following directions, which will take effect
in supersession of the Orders passed by the Courts below :
(a) We direct Perry Kansagra to obtain a mirror order from the
concerned court in Nairobi to reflect the directions contained
in this judgment, 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 cooperation,
and not cause any obstruction in this behalf;
(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
videoconferencing platform for one hour over the weekends;
further, Aditya is at 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 judgment.
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
48
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 aforestated
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.
The Appeal is accordingly dismissed, with no order as to
costs.
...............................J.
(UDAY UMESH LALIT)
.............………………J.
(INDU MALHOTRA)
NEW DELHI;
OCTOBER 28, 2020
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3559 OF 2020
(ARISING OUT OF SLP (CIVIL) NO.12910_ OF 2020)
(DIARY NO. 8161 OF 2020)
SMRITI MADAN KANSAGRA .....APPELLANT(S)
VERSUS
PERRY KANSAGRA .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
Leave granted.
1. I have gone through the detailed judgment authored by Sister
Justice Indu Malhotra, but I am unable to persuade myself to agree
with the views expressed by her.
2. The present appeal is directed against an order dated 25.2.2020 of
the Delhi High Court whereby the first appeal preferred by the
appellant1 against an order passed by the Family Court on
12.1.2018 was dismissed.
3. The brief undisputed facts are that the marriage between the
1 Hereinafter referred to as “Smriti”.
parties was solemnized on 29.7.2007 at New Delhi. A male child
Aditya Vikram Kansagra2 was born out of the wedlock on 2.12.2009
at New Delhi. The parties are living separately since 26.4.2012.
Smriti is an Indian citizen whereas the respondent3 and the child
have dual citizenship of Kenya and United Kingdom. The child also
has been granted OCI (Oversees Citizen of India). The litigation
began with Smriti filing a suit for permanent injunction4 restraining
Perry and his parents from removing the child from her custody.
During the pendency of such suit, numerous orders were passed
regarding visitation rights to Perry.
4. Thereafter, Perry filed a petition under Section 7 of the Guardians
and Wards Act, 18605 bearing Guardianship Petition No. 53 of 2012
before the Family Court, Saket on 06.11.2012. It is the said petition
which was allowed by the learned Family Court on 12.1.2018 and
later affirmed by the High Court vide the Impugned Judgment
dated 25.02.2020.
5. The learned counsel for the parties referred to the pleadings in
other intra-party proceedings as also the documents which may not
be part of the record of the Guardianship proceedings in support of
their respective contentions. Since no objection was raised
regarding consideration of these documents and pleadings, the
same are taken into consideration, reference of which will be made
2 Hereinafter referred to as “child”.
3 Hereinafter referred to as “Perry”.
4 For short “Suit” [CS (OS) No. 1604 of 2012].
5 For short, the “Act”.
2
at the relevant stage. However, reference to such pleadings and
documents are only for the purpose of the present proceedings.
6. The following cases were filed before the competent courts:
(i) CS (OS) No. 1604 of 2012 - withdrawn on 31.8.2015 in
view of Guardianship petition filed by Perry, but with a
direction that the interim orders passed in the suit will
continue till the disposal of the application for visitation
rights by the Family Court.
(ii) Guardianship Petition No. 53 of 2012 – The same was
decided by the Family Court on 12.1.2018 and the appeal
was dismissed on 25.2.2020, which is the subject matter
of challenge in the present appeal.
(iii) Divorce Petition No. HMA No. 302 of 2019 - filed by Smriti
under Section 13 of the Hindu Marriage Act for dissolution
of marriage on the grounds of cruelty and desertion. Perry
also filed a petition for dissolution of marriage which is
also pending before the Family Court.
(iv) HMA No. 3 of 2017 - filed on behalf of the child and Smriti
to claim maintenance from Perry which is pending before
the Family Court, Patiala House Court, New Delhi.
7. In a suit filed by Smriti before the High Court on 26.5.2012 to
restrain the defendants, Perry and his parents, to illegally remove
the child from the custody of Smriti, she has inter-alia stated to the
following effect:
“12. …In other words, it was their own feudal arrogance
which was reinforced by the birth of a male child. The
welfare and upkeep of the child itself was irrelevant for
3
the Defendants. Defendants after the birth of Plaintiff
No. 1 were of the view that Plaintiff No. 2 would look
after their male progeny. In other words, the
Defendants were of the view that Plaintiff No. 2 was a
mere caretaker of their male heir.
13. Things changed for the Defendants after Plaintiff
No. 1 was born. It is again pertinent to mention here
that Defendant No. 3 did not resume conjugal relations
with Plaintiff No. 2 after the birth of Plaintiff No.1 and it
appeared as if she had served her purpose by giving
birth to Plaintiff No. 1. Thus, there have been no
conjugal relations between Plaintiff No. 2 and Defendant
No. 3 since then because of the palpable desire of the
Defendant No. 3 not to have conjugal relation with
Plaintiff No. 2. The real reasons for the denial of
conjugal relations, however, have now come to light and
the Plaintiff No. 2 would give the details in the
appropriate forum and hereby reserves the same.
xx xx xx
23. That the Defendant No. 3 eventually decided to
come to New Delhi on 21.04.2012. As per his plans, he
wanted to stay in Delhi for a period of six days and his
return ticket was for 26.04.2012. In this visit the
defendant no. 3 demonstrated an extremely belligerent
attitude towards the Plaintiff no. 2 and would fight with
her on the smallest of pretexts. Rest of the time the
Defendant no. 3 would be constantly text messaging
someone from his
mobile. This was the feature throughout his visit and
the Plaintiff no. 2 later on realized that it was related to
his breach of marital fidelity. On 22.04.2012 the
Defendant No. 3 after talking with his parents
(Defendant no. 1 and 2) started to quarrel with the
Plaintiff no. 2. He categorically told the Plaintiff no. 2
that he wanted the child to be sent back to Kenya as he
no longer wanted the Plaintiff no. 2 to be taking care of
“his child”. The Defendant no.3 told the Plaintiff no. 2
that such was the insistence of his parents also. The
Defendants were of the view that the child was
essentially a Kansagra scion, a male heir and that the
Plaintiff no. 2 had a limited role which in any event she
was not discharging well. When the Plaintiff no. 2
resisted such ridiculous, feudal and wholly illegal
statements of the Defendant no. 3, he abused her and
4
said that the Plaintiff no. 2 was perhaps unaware of the
vast influence that the Defendants exercised across the
globe and that he would ensure that the Plaintiff no. 2’s
so called protection under the Indian law was breached
without her bring in a position to do anything about it.
The Defendant no. 3 further threatened Plaintiff no. 2 by
stating that “the Kansagras always have their way, so
don’t you even dream of denying what we want”.
Though the Plaintiff no. 2 was very scared by all these
utterances of the Defendant no. 3, she thought perhaps
these ere empty threats. The Defendant no. 3 also kept
a close watch on her activities. The Plaintiff no. 2 thus
could not immediately register a police complaint.
xxx xxx
Prayers
In the facts and circumstances, it is most
respectfully prayed that this Hon’ble Court may
graciously be pleased to:
a) …..
b) …..
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”
8. Perry in his written statement stated as under:
“4. That the Plaintiff No. 2 was always adamant the
Plaintiff No. 1 to be brought up in India against the
wishes of the Defendants. It is submitted that the
Defendants are settled in Kenya and leading their lives
as per the western culture and lifestyle. The
grandfather father of the Defendant No. 3 and father of
the Defendant No. 1, shifted to Kenya in the year 1935.
The Defendant No. 1 and 3 were raised in the western
culture and are accustomed only to the western
lifestyle. They are completely alien to the Indian
lifestyle and culture and therefore, their one and only
preference is to raise the child in a Western Culture. It is
submitted that the child also has a vested right to be
exposed to and get accustomed to the culture and
lifestyle of his father and grandparents and this link
cannot be broken at the instance of the mother to raise
the child in the Indian culture….
xx xx xx
5
23. That the contents of para 23 are wrong and
therefore, denied. It is denied that in this visit the
Defendant No. 3 demonstrated an extremely belligerent
attitude towards the Plaintiff No. 2 and would fight with
her on the smallest of pretexts. It is denied that rest of
the time the Defendant No. 3 would be constantly test
messaging someone from his mobile. It is denied that
this was the feature throughout his visit and the Plaintiff
No. 2 later on realized that it was related to his breach
of marital fidelity and it is submitted that the allegations
of the Plaintiff No. 2 are completely vexatious and has
caused grave agony to the Defendant No. 3. It is
submitted that the Defendant No. 3 reserves his rights
to take appropriate course of legal action against the
allegations of the Plaintiff No.2. It is denied that on
22.04.2012 the Defendant No. 3 after talking with his
parents (Defendant No. 1 and 2) started to quarrel with
the Plaintiff No. 2.”
9. In the Guardianship petition, Perry had sought his appointment as
the guardian of the child as well as the physical custody of the
child who was almost 3 years of age when the proceedings were
initiated. Perry had pleaded that the marriage between the parties
was an arranged marriage and Smriti was made well-versed about
his family and life style. Smriti was categorically told that she has
to settle in Kenya and she was ready to give up her own law
practice in New Delhi for the same. It was pleaded that Smriti’s
behaviour began to change for the worse after she conceived.
Smriti was adamant about the delivery to take place in India.
Perry and his parents allowed her to travel of her own free will.
Smriti remained in India for close to a year and Perry used to visit
her every month without fail. He also continued to give huge
amounts of pocket money as well as her handsome salary in
6
Kenya. It was pleaded that Smriti is a practicing lawyer and is
always busy and occupied with her work. Thus, if the custody of
the child is given to Perry and his family, it would be better for the
upbringing of the child as both his grandparents are very fit and in
a much greater condition to take care of the child. Perry pleaded
as under:
“18. That the Petitioner states that the Respondent is
not a fit and proper person to take the responsibility of
the child. It is submitted that the Respondent is a
practicing lawyer and she is always busy and occupied
with her work and there is no one in the family to take
care of him. The Respondent does not have a family, as
she is staying alone with her old mother. Furthermore
the mother of the Respondent is not in a state to take
care of the child as she is herself suffering from ill health
and dependent on other people to take care of.
Therefore, the child is being forced to live an isolated
life in Delhi. It is submitted that if the child's custody is
given to the Petitioner and his family, it would be better
for the upbringing of the child as both his grandparents
are very fit and in a much greater condition to take care
of the child, in the manner the child could never be
looked after in the Respondent's house. The child's
grand parents can devote all their time to their
grandson and shower him with a lot of love and
affection and teach him traditional values of life.
It is submitted that the Petitioner has been undertaking
these visits to take care of interest of the child. The
Petitioner was always concerned about the comforts of
the Respondent and the child.
The abovementioned dates clearly show that the
Petitioner regularly visited the child so that the child
does not feel isolated or neglected. It shows the genuine
concern of the Petitioner for the paramount welfare of
the child.”
10. Perry pleaded that he and his parents were raised in western
culture and are accustomed only to the western lifestyle and thus
7
their preference is to raise the child also likewise. Perry further
pleaded that maternal grandmother of the child is not in a state to
take care of him as she herself is suffering from ill-health and is
dependent on other people to take care of. Perry pleaded as under:
“21. That the Respondent was always adamant regarding
the child to be brought up in India against the
wishes of the Petitioner and his parents. It is submitted
that the Petitioner and his parents are settled in Kenya
and leading their lives as per the western culture and
lifestyle. The Petitioner and his parents were raised in
the western culture and are accustomed only to the
western-lifestyle and thus their preference is to raise
the child in a Western Culture. It is submitted that the
child also has a vested right to be exposed to and get
accustomed to the culture and lifestyle of his father.
and grandparents and this link cannot be broken at the
insistence of the mother to raise the child in the Indian
culture. If the contrary is being allowed, the child would
fail to identify himself with the life and values of his paternal
family and his paramount welfare will be completely
devastated. The child further has a right to live
in the manner in which is father lives and the same cannot
be denied to the child on account of an obstinate
mother. The child further has a birth right to follow the
morals and values of the father and the grandparents.”
11. Perry also pleaded that he noticed suicidal tendency in Smriti. She
is a threat to herself and, therefore, the child cannot be safe with
her. It has been stated that during one of his visits to Delhi, Perry
had seen slit marks on both the wrists of Smriti. It was also
pleaded that Smriti has always been very abrasive and cruel with
her house help, servants, maids, drivers, nannies and such like
both in India and in Kenya. Further he pleaded that Smriti has told
several cousins of Perry in USA and UK that she could not cope with
the child and was finding it hard to manage with him.
8
12. In the written statement filed on 22.5.2013, Smriti pleaded that the
child was of very tender age and has stayed in India for 30 out of
40 months after his birth. Also, she averred that it was Perry’s and
his family’s desire to raise the child as per Indian upbringing. A
detailed arrangement for the same was planned and written down
in a notebook by Perry whereby the child was to stay in for four
months in Kenya, seven months in India and one month in UK with
regular intervals. It was submitted that Perry and his family always
wanted that the child to be brought up in India. Perry often told his
relatives and friends in Kenya and India that the child would be
staying six months in Kenya and six months in India. The Schedule
of stay of the child in the year 2010 and 2011, written by Perry in
his own handwriting, is reproduced hereunder:
“2010
JAN, FEB, MAR, APR, MAY – INDIA
JUN – KENYA
JUN, JUL – KENYA
JUL – UK
AUG, SEP, OCT – KENYA (HOLIDAY)
OCT – INDIA
OCT, NOV, DEC – INDIA
2ND DEC A.V. – 1ST B’DAY
7 MTHS – INDIA
1 MTH – UK & HOLIDAY
4 MTHS – KENYA
2011
JAN, FEB, MAR – INDIA
MAR – KENYA
MAR, APR, MAY, JUN – KENYA
JUL – UK
JUL, AUG – KENYA (HOLIDAY)
9
SEP – INDIA
SEP, OCT, NOV, DEC – INDIA
2ND DEC A.V. 2ND B’DAY
7 MTHS – INDIA
1 MTH – UK & HOLIDAY
4 MTHS – KENYA”
13. It was asserted that the child is involved in various outdoor and indoor
extracurricular activities. The child often goes to the park to
play with his friends. He goes for horse riding and is also enrolled
in art, gymnastic and dramatic classes. The child is enjoying a
holistic upbringing, better than what he could have had in Kenya. It
was also pleaded that Perry and the grandfather of the child are
very influential and powerful business family and often misuse it to
their advantage. They lead a very luxurious lifestyle and enjoy
showing off their wealth and power and exerting influence. It was
pleaded that Smriti happily left her job in Delhi in order to join
Perry in Kenya. She averred that it was agreed that she would help
Perry with legal issues of the business as and when required and a
salary was also paid to her for the same. Perry and his family were
looking for a daughter-in-law with strong Indian values and Indian
culture so that the Indian culture could be kept alive in Kenya. It
was denied that she agreed to get married to foreigner and understood
the implications of getting married in another country and
culture. The decision to marry was based on false representation
and subterfuge of Perry and his family. At the time of talk of the
marriage, the family projected to be very humble, loving and caring
Indian family but later, it was noticed that Perry and his family
10
are arrogant, rude and insensitive people who only care about
money and their business. Smriti, having strong Indian values, understood
that the marriage is a sacred and a serious institution and
thus continued to stay in Kenya and tried to build a family even after
not being treated well by Perry and his family.
14. The allegations that Smriti was abrasive and rough in nature with
the house staff from the very beginning were denied. It was, in
fact, pleaded that Perry was the one with a bad temper and often
would beat the servants if they committed any mistake or stole
milk from the farm. Perry and his family were happy only after
they got to know that she had given birth to a male child. It was
pleaded that Perry and his family told her that it would be better
for her to deliver the child in Delhi and stay with her mother as
there would be no one to take care of her in UK during her pregnancy.
It was only on the insistence of Perry and his family that
she agreed to stay in India during her pregnancy and gave birth to
the child in India. One of the pretexts that Perry had for keeping
the child and Smriti in India was that the child could be brought up
with traditional Indian culture and would imbibe traditional family
values based on Hindu customs and ceremonies. However, it transpired
that in reality Perry wanted to keep Smriti away from Kenya
as he has gotten drawn into an affair with a woman in Mozambique
called Ms. Sonia. It came to Smriti’s notice in April, 2012 that he
has been meeting Ms. Sonia very often during the sustenance of
marriage with her. In April, 2012, Perry on his visit to New Delhi
11
strongly shared his desire to visit an old lady friend of his, who was
in poor health and had been hospitalized in Paris. On the same
day, Smriti stumbled upon a loving and explicit message exchanged
between Perry and this woman.
15. It was pleaded that in view of the tender age of the child what is
imperative in bringing up the child is the love of his mother and not
just luxuries and big house. A child of three years of age needs a
loving and a dedicated mother to nurture him and bring him up. It
was admitted that Perry and his family are in superior financial
position but in the last one year, she has not even been paid a
single penny towards the maintenance of the child. It was denied
that Smriti’s house in Defence Colony, having three bedrooms, is
not big and not well equipped with utilities of life and cannot render
all sorts of comfort to the child. Perry and his family are trying to
tempt the child by their putative super rich status though not a
single penny towards the child maintenance was paid. She averred
that no amount of wealth could be a substitute for the love,
affection and care which a mother can bestow on her child.
16. Smriti pleaded that, on the contrary, the luxuries in which Perry
was brought up has turned him to be an arrogant person who likes
to show off his money and power. Perry grew up in a boarding
school to which he was sent to at the age of five years and was not
brought up with traditional Hindu customs. Perry leads a profligate
lifestyle which is decadent and without basic Indian morals and
12
values which Perry is choosing to call as western culture. Thus, if
the child is allowed to be brought up in Kenya, he would also grow
up to be a mismatch with confused African feudal attitude, which is
irreconcilable with both Indian and western values.
17. It was also pleaded that Perry hardly spent any time with the child
when the child was in Kenya as he was travelling for almost 18
days in a month. It was averred that she had left her work in Delhi
to move to Kenya and start her family there. Even after coming
back, she has taken active and complete day to day care of the
child. She is dedicating her life in bringing up the child in a holistic
manner and also takes the child for various extra-curricular
activities, picnics and outings regularly. It was stated that the
grandparents’ love and affection cannot be substituted with the
mother’s love, affection and care. Perry himself is proposing that
the child would be taken care of by the grandparents if the custody
is given to him. It was also stated that India has better education
and career prospects than Kenya. Perry wanted to send the child
to Pembroke Boarding School at the age of 5 for which he already
got the seat booked. However, Smriti has averred that it was not in
the welfare of the child. She pleaded that it is unfortunate that
Perry is mainly interested in the child learning business skills from
him and his father. Further, the allegation of slitting both the wrists
as a trait of suicidal tendency was denied inasmuch as a person
attempting to commit suicide cannot slit both the wrists at the
same time. It was also pleaded that Perry and his parents are
13
staying in separate houses in Kenya. All other allegations levelled
by Perry against her were denied.
18. In rejoinder filed by Perry, the assertions made by Smriti were
categorically denied. In respect of the contention of his travelling
for 18 days, it was stated as under:
“It is further submitted that the Petitioner maintains a
balance between work and family. The Petitioner is at
home after office hours. His working hours are between
8.00am to 4.00 pm. Though the Petitioner has to travel
abroad, however, it is not that he remains abroad for
over 18 days in a month. The Petitioner during his travel
maintains constant touch with his family. The Petitioner
is not alone to take care of the minor child of the
parties, his parents are equally affectionate towards the
minor child of the parties. The minor child of the parties
would get the constant support and care needed for a
young child.”
19. Perry denied the stand of Smriti of any affair with the woman in
Mozambique called Sonia. He reserved his right to take
appropriate legal action against Smriti for making such slanderous
allegations.
20. Smriti, in her divorce petition, had made a reference of divorce of
Perry from a woman belonging to Mumbai which had taken place in
the year 2006 (The Marriage was solemnized on 22.12.2000,
whereas the Mutual Consent Divorce Decree is dated 9.9.2005.
Such document has been produced on behalf of Perry) to assert
that Perry is in the habit of neglecting his spouse. Smriti averred in
the petition as under:
“7. The Petitioner was informed that Ms. Revati took a
divorce with Respondent around 2006 in a state of
14
despair and trauma. The prelude to the present petition
would amply show that the Respondent is in the habit of
being neglectful towards his spouse.
xx xx xx
61. In April, 2012 only, during the visit of the
Respondent to Delhi, the Petitioner came across certain
messages on the phone of the Respondent. The said
messages were exchanged between one Ms. Sonia and
the Respondent. The Petitioner immediately emailed
the messages to herself. The Petitioner was shocked
and traumatized after reading the messages which
established that the Respondent was having an extramarital
affair with a lady from Mozambique called Ms.
Sonia. The Respondent would maintain that Ms. Sonia
was a friend, however, when the Petitioner read the
messages exchanged between the Respondent and Ms.
Sonia, it became clear that the Respondent was having
an extra-marital affair with this lady. It was now that the
Petitioner realized that the Respondent wanted the
Petitioner to spend her maximum time in India so that
he could continue his affair and the schedule drawn was
also predicated on the Respondent’s ulterior motive of
continuing his affair with Ms. Sonia, which he could
pursue freely in the absence of the Petitioner.
xx xx xx
69. That it is clear that the Respondent is in no manner
interested in maintaining matrimonial relationship with
the Petitioner. The Respondent and his family members
were only concerned about their “rights” to their male
heir to their business empire.
xx xx xx
72. That the Respondent never intended to work for
having a successful and happy marriage. The
Respondent got married to the Petitioner for purpose of
procreation and whose only utility after having given
birth to a son was to obediently take care of the child.”
21. Smriti filed an affidavit in support of the petition for dissolution of
marriage wherein it was stated to the following effect:
15
“4. That the parties have been separate since
26.04.2012 and there has been no resumption of
cohabitation and/or no restitution of conjugal rights
between the parties since 26.04.2012.”
22. The learned Family Court held that it was absurd that the Schedule
prepared for merely two years conferred testamentary
guardianship to Smriti over the child. Also, since the date or place
of writing down of such Schedule was not pleaded or proved, the
learned trial court opined that it must have been written down
during the period July, 2010 to March, 2012 in Kenya. There was
also no evidence that the Schedule was followed for the year 2010-
11. It was thus held that Smriti was never a guardian of the child,
therefore, Perry was not required to establish any of the causes
mentioned in Section 39 of the Act to succeed. In respect of
welfare of the child, it was held that Smriti lives in a multistorey
building in a market-place with her widowed mother and that she is
currently not working. The family thus constituted of two nonworking
women. It was held that depriving the child of his
legitimate right to inherit the aforesaid business was definitely not
in his best interest. The grooming of the child under the care of
Perry would be in his best interest. The child could also pick up
Kiswahili language, if brought up in the atmosphere where this
language is spoken or widely used. The future of the child,
therefore, was held to be most secure with Perry. The learned trial
court did not accept the allegation of suicidal tendencies in Smriti.
In respect of the allegation of adultery by Perry, the learned trial
16
court held that Smriti has not been able to establish adulterous
liaison. It was further held that parental alienation was proved
from prayer ‘c’ of the suit for injunction filed by Smriti and also
from the Aadhaar card and the bank account opening form where
name of Perry is not mentioned. The child was also admitted in the
School under ‘single parent category’. With the above findings, the
learned Family Court allowed the petition filed by Perry by granting
permanent custody to Perry and declared him as the guardian of
the child.
23. The High Court dismissed the appeal filed by Smriti, inter alia, for
the reason that Perry has been visiting the child every month since
2012 and had even sought extended visitation rights on numerous
occasions. The fact that Perry has business interest in Kenya and
United Kingdom was admitted by Smriti. The High Court held that
Smriti and maternal grandmother of the child are not working and
stay at home reaping rental income. Thus, Smriti would not be an
ideal role model for the child. The High Court proceeded to hold
that though financial superiority can never be the sole ground to
grant custody but the same can always be one of the factors to be
considered while ascertaining where the overall welfare of the
minor lies. Perry stays in a joint family with his parents having a
large house enabling the child to play around, whereas Smriti stays
with her aged mother in a flat who also doesn’t keep well and is
unable to sit or stand for long hours as having been diagnosed with
an ulcer in her left ankle. She also suffers from lumbar spondylosis
17
with degenerative disc disease. It was also found that Smriti had
at least on one occasion slit her own wrists.
24. The High Court referred to the report of the Counsellor dated
21.7.2016 and the photographs to return a finding that the child
shares a close bond with Perry and grandparents. Perry had
travelled from Kenya to New Delhi every month to meet the child
which showed genuine love and affection towards the child. The
High Court also referred to a transcript of the conversation
between the child and Perry’s family which showed that Smriti was
feeding the child with stories regarding witches in Nairobi, Kenya
and that the plane would crash in order to desist him from going
there. It was noted that Perry’s name was withheld from the
Aadhaar Card of the child and in the admission form submitted to
the school where Smriti got the child admitted as a single parent.
The High Court also held that Smriti kept her interests before the
interest of the child and used the interim custody of the child as a
leverage for bargaining better settlement terms for herself. The
High Court further held that Smriti refused the request of Perry for
consulting a second doctor at the residence of Smriti herself when
the child was ill by terming the request of Perry as mala fide. It
was held that though Smriti may be entitled to alimony, however,
using the child as a chattel to be traded for alimony or other
benefits could never be in the best interests of the child. Thus, the
High Court concluded that Perry was in better position to take care
of the child and the best interests of the child would be protected
18
by granting his custody to Perry.
25. Perry expressed his willingness before the High Court to file an
undertaking of his mother who is an Indian citizen to ensure
visitation rights to Smriti vide separate order of the same date.
Perry also stated that an undertaking would be filed before the
Indian Embassy at Kenya, the acknowledgment of which would be
produced in token of his acceptance of the order and of his
submitting to the jurisdiction of the courts in India and the
consequences which may follow in case the order is not faithfully
complied with.
26. During the pendency of the appeal before the High Court against
the final order passed by the Family Court, Smriti moved an
application under Order XLI Rules 27 and 28 of the Code of Civil
Procedure, 19086 to produce additional facts and documents on
record. The additional facts pertained to dam burst on 9.5.2018 in
the Republic of Kenya built by the family of Perry on Solai Farms.
The Republic of Kenya has registered a criminal case against Perry
being CMCR No. 997 of 2018 on various offences including 48
counts of manslaughter. In the present proceedings, Smriti has
referred to an order passed by the High Court of Kenya whereby
revision petition against Perry under Sections 362, 363 and 365 of
the Criminal Procedure Code as applicable in the said Country was
allowed. The High Court has set aside the order of acquittal
passed by the trial court on 3.2.2020 and ordered a retrial. It is
6 For short, the ‘Code’
19
submitted on behalf of Perry that an Appeal against such an order
is pending before the Higher Court.
27. There are a number of judgments regarding custody of child
wherein, foreign courts have passed orders regarding custody one
way or the other. But, in the present case, there is no order of any
foreign court regarding custody to either mother or father nor there
are any proceedings initiated in any other country except India
regarding custody of child. Therefore, custody of the child who is
ordinarily resident of Delhi is to be examined only keeping in view
the principles laid down under the Act read with the Hindu Minority
and Guardianship Act, 1956. The judgments arising out of foreign
courts are not relevant to determine the issues raised in the
present proceedings.
28. In Rosy Jacob v. Jacob A. Chakramakkal7, this Court held that
children are not mere chattels and nor are they mere play-things
for their parents. Absolute right of parents over the destinies and
the lives of their children has, in the modern changed social
conditions, yielded to the considerations of their welfare as human
beings so that they may grow up in a normal balanced manner to
be useful members of the society. The guardian court in case of a
dispute between the mother and the father, is expected to strike a
just and proper balance between the requirements of welfare of the
minor children and the rights of their respective parents over them.
7 (1973) 1 SCC 840
20
29. In a judgment reported as Nil Ratan Kundu & Anr. v. Abhijit
Kundu8, this Court has held that it is not the negative test that the
father is not unfit or disqualified to have custody of the son is
relevant but the positive test that such custody would be in the
welfare of the minor which is material and it is on that basis the
Court should exercise the power to grant or refuse the custody of
minor in favour of father, mother or any other guardian.
30. This Court in a judgment reported as Gaurav Nagpal v. Sumedha
Nagpal9 considered the argument of the father that he lives in a
posh locality and the house is built on nearly 3000 sq. yards
whereas the respondent, a teacher, resides with her parents in a
two-bed room flat. The custody of Child was given to mother
though father had better financial status. This Court reviewed the
law relating to custody in various countries and held as under:
“43. The principles in relation to the custody of a minor
child are well settled. In determining the question as to
who should be given custody of a minor child, the
paramount consideration is the “welfare of the child”
and not rights of the parents under a statute for the
time being in force.
xx xx xx
48. Merely because there is no defect in his personal
care and his attachment for his children—which every
normal parent has, he would not be granted custody.
Simply because the father loves his children and is not
shown to be otherwise undesirable does not necessarily
lead to the conclusion that the welfare of the children
would be better promoted by granting their custody to
him. ………..
8 (2008) 9 SCC 413
9 (2009) 1 SCC 42
21
xx xx xx
50. When the court is confronted with conflicting
demands made by the parents, each time it has to
justify the demands. The court has not only to look at
the issue on legalistic basis, in such matters human
angles are relevant for deciding those issues. The court
then does not give emphasis on what the parties say, it
has to exercise a jurisdiction which is aimed at the
welfare of the minor. As observed recently in Mausami
Moitra Ganguli case [(2008) 7 SCC 673 : JT (2008) 6 SC
634] , the court has to give due weightage to the child's
ordinary contentment, health, education, intellectual
development and favourable surroundings but over and
above physical comforts, the moral and ethical values
have also to be noted. They are equal if not more
important than the others.
51. The word “welfare” used in Section 13 of the Act
has to be construed literally and must be taken in its
widest sense. The moral and ethical welfare of the child
must also weigh with the court as well as its physical
well-being. Though the provisions of the special statutes
which govern the rights of the parents or guardians may
be taken into consideration, there is nothing which can
stand in the way of the court exercising its parens
patriae jurisdiction arising in such cases.”
31. In a recent judgment in Lahari Sakhamuri v. Sobhan Kodali10,
the Courts have delineated the following factors to be kept in view:
(1) maturity and judgment; (2) mental stability; (3) ability to
provide access to schools; (4) moral character; (5) ability to
provide continuing involvement in the community; (6) financial
sufficiency and last but not the least the factors involving
relationship with the child, as opposed to characteristics of the
parent as an individual.
32. Mr. Shyam Divan, learned Senior Counsel for Smriti argued that the
10 (2019) 7 SCC 311
22
findings of the Family Court and the High Court that the welfare of
the child is in the custody of Perry is based upon factually incorrect
reading of evidence and on impermissible principles of law. On the
other hand, Mr. Mehta, learned counsel for Perry has supported the
findings as recorded by both the courts. The arguments raised are
dealt with as under: -
(I) Welfare & Best Interest Principle
(II) Whether, the Financial superiority of a parent can be the
decisive factor to handover the custody to such parent.
(III) Whether, the Continued supervisory jurisdiction of Indian
Courts is essential for Child’s Welfare.
33. The arguments need to be appreciated keeping in view of the fact
that Perry and Smriti, both are natural guardians of the child in that
order. In terms of Section 17 of the Act, the Court has to take into
consideration the circumstances which are for the welfare of the
minor. To determine the welfare of the minor, the Court shall have
regard to the age, sex and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin to the
minor.
(I) Welfare & Best Interest Principle
The welfare principle is examined in the following manner in view
of the judgment of this court in Lahari Sakhamuri.
(a) Maturity and Judgment & Mental Stability
34. As per Perry, his grandfather shifted to Kenya in the year 1935 and
23
with hard work, he established a business empire in Kenya as well
as in UK. Even though, the family is settled in Kenya for about 75
years in the year 2007 but still his first preference was to marry an
Indian woman which is evident from the fact of publishing an
advertisement in the newspaper as also his previous marriage with
a woman from Mumbai. Perry pleaded that he and his family are
based in Kenya and are exposed to western culture and lifestyle.
This shows that Perry and his family have not assimilated in Kenya
to Kenyan culture and ethos even after living in Kenya for many
years. He looked for a spouse in India, though he himself professes
that he is exposed to western culture and lifestyle. This shows that
the action of Perry does not match with his written stand. He
comes out to be a person who is not sure whether he is Western or
an Indian but in no case Kenyan.
35. Perry submitted an affidavit in evidence as Ex.PW-1/A and
appeared as PW-1 as his own witness. He had also attached the
photographs to show his means and affluence so as to provide all
facilities and comforts to his child. He had stated that he is an
Industrialist having business establishments all over the world.
Perry and his child have dual citizenship of Kenya and UK and
enjoys a high social status and respected all over the world. He
examined his father, Mansukh Patel as PW-2. He had stated that
Smriti is a practicing lawyer. She remains busy and occupied in her
work and there is no one else in her family to take care of the child.
24
36. In cross-examination, Perry denied any matrimonial advertisement
given by a Bombay based lawyer Ms. Sejal Chacha on behalf of his
family seeking an alliance of a girl based in India. On the other
hand, PW2 Mansukh Patel, father of Perry, admitted that Ms. Sejal
Chacha is their family friend. In cross examination conducted on
6.5.2017, Perry stated, thus:
“It is wrong to suggest that matrimonial advertisement
Mark-A given in Hindustan Times, New Delhi dated 1st
October, 2006 was given on my behalf or even on behalf
of my family in respect of me. I have already testified
that no matrimonial advertisement was given in respect
of my marriage either by me or by my family or on
behalf of either of us. Ms. Sejal Chacha, Advocate is our
family friend and I have not been actively consulting
with her on all matters. I occasionally mark a copy of my
e-mail conversation with Smriti to Ms. Sejal Chacha,
Advocate.”
37. Smriti tendered her evidence by way of an affidavit Ex.RW1/A and
appeared as her own witness as RW-1. She had produced the
matrimonial advertisement published in Hindustan Times
newspaper on 1.10.2006 as Ex.RW1/1. The contact person in the
said matrimonial advertisement was Ms. Sejal Chacha. As per
Smriti, this advertisement was on behalf of Perry and his family and
they responded to such advertisement, which led to marriage
between the parties. The said advertisement reads, thus:
“Overseas Based. Business Tycoon. Only Son.
1974/5’8”, B.B.F. (UK) Seeks Very Beautiful Cultured Girl.
Contact Sejal (Advocate) (022) 26xxxx52, 0981xxxxx67.
E-mail: sejal_xxxxxxx@yahoo.co.in. (Caste no bar)
25
We are in Delhi Oct, 6, 7, 8”.
(Note: The complete email address and mobile number is not
made part of the order so as to protect the privacy of the
individual)
38. Smriti deposed that she met Perry in Hotel Inter-Continental,
Barakhamba Road, New Delhi in Room No. 1415 in response to
such advertisement. Ms. Sejal Chacha was present in the meeting.
She further deposed that her mother was in touch with Ms. Sejal
Chacha during the alliance discussion. Perry is still in touch with
Ms. Sejal Chacha as his e-mails dated 25.2.2015 (Ex.RW1/DA143)
and 9.12.2016 have been marked to her as well. RW-2 Manju
Madan, Smriti’s mother also supported her daughter in respect of
meetings with Ms. Sejal Chacha and that she was in touch with her
when the alliance proposal was being discussed. Perry in his cross
examination, as reproduced above, admitted that he occasionally
marked a copy of his e-mail conversations with Smriti to Ms. Sejal
Chacha, Advocate, though he stated that he was not actively
consulting with her on all matters.
39. In this regard, Mr. Mehta relied upon a judgment in Ravinder
Kumar Sharma v. State of Assam & Ors.11 to contend that
newspaper reports are merely hearsay and not proof of facts
stated therein. I do not find any merit in the arguments raised. In
the said case, the Appeal had arisen out of suit for damages for
malicious prosecution. It was found that newspaper reports
regarding Central Government decision could not be any basis for
11 (1999) 7 SCC 435
26
the respondents to stop action under the Assam Foodgrains
(Licensing and Control) Order, 1961. It was held that the
presumption of genuineness under Section 81 of the Indian
Evidence Act, 187212 to newspaper reports cannot be treated as
proof of the facts stated therein. However, Smriti has not relied
upon the newspaper report by any correspondent or any reporter.
The reliance is upon paid advertisement appearing in the classified
matrimonial column of the Hindustan Times. In other words, Smriti
is not relying upon any news published in the newspaper but
reliance is on an advertisement on behalf of Perry or his family
disclosing purpose of the advertisement and the contact person.
The news published is on the basis of a report filed by a
correspondent. The primary evidence in such situation would be
the reporter himself. But an advertisement is not news based on a
report of a newspaper reporter. It is an insertion on the basis of
payment made. The fact of advertisement could be rebutted by
Perry by producing Sejal as witness to depose that no such
advertisement was published with her being the contact person.
Still further, the stand of Perry is that his marriage with Smriti was
an arranged marriage. There is no other evidence as to how the
marriage was “arranged”. Therefore, I find the said judgment is
not applicable to the facts of the case as the talks of the
matrimonial alliance were finalized on the basis of an
advertisement published on behalf of Perry.
40. Perry was earlier married to a woman from Mumbai whom he
12 For short, the ‘Evidence Act’
27
divorced in the year 2005. Perry, though admitting that his
marriage with Smriti was arranged, denied that any advertisement
in the matrimonial column was got inserted for him. He however
deposed that Ms. Sejal Chacha, Advocate is their family friend and
that he had not been actively consulting with her on all matters
though occasionally he marks a copy of his e-mail conversation
with Smriti to Ms. Sejal Chacha, Advocate. When Smriti appeared
in examination-in-chief, she submitted the relevant page of the
Hindustan Times but the same was objected to on the ground that
the complete newspaper has not been produced. However, no
further cross-examination was carried out on Smriti regarding the
veracity of the advertisement or that matrimonial alliance between
the parties was arranged in some other manner other than the
newspaper advertisement published in the Hindustan Times. Also,
Perry did not examine Sejal Chacha as a witness to rebut the stand
of Smriti that she was the one who was in touch with Smriti and
her mother before the matrimonial alliance was finalized as
deposed by RW-2 Manju Madan. This only goes to show that Perry
is not a truthful person.
41. The child was born on 2.12.2009 at New Delhi. As per Smriti, Perry
wanted the child to be born and brought up in India. Perry admitted
that he visited India every month before birth of the child and in
fact thereafter as well. He has given in writing the schedule of stay
of child for two years (2010 & 2011). Such writing shows that the
child was to remain in India for seven months; England for one
28
month; and Kenya for four months. He denied that the schedule
Ex. PW1/R1 was written by him voluntarily. He stated that the
Schedule Ex.PW1/R1 was written by him on the instructions of his
wife. He admitted that the Schedule Ex.PW1/R1 runs into two
pages on two sheets in the notebook.
42. It is also admitted by him that such schedule for the year 2010 and
2011 was broadly followed except that the child never went to
England and stayed in India instead. I find that the stand of Perry
that he has written such schedule on the dictation of Smriti to say
the least is preposterous. Perry, a successful businessman and of
more than 33 years of age, is not a child to whom the schedule of
stay of the child could be dictated. The stand of Smriti is that it
was a voluntary schedule written by Perry so as to imbibe Indian
values and culture in the child. The fact that it was the voluntary
decision of Perry to let the child in India for two years after his birth
is also corroborated by the fact that in the application form to seek
UK Passport, the residential address of Smriti alone was given. Still
further, Perry has not produced any email or any other evidence
except his bald statement objecting to the stay and bringing up of
child in India. Perry is proved to be consenting of Smriti and child
staying in Delhi at least till 26.4.2012. The triggering factor
appears to be the messages in the mobile of Perry which Smriti
found out on 22.4.2012. Therefore, it cannot be said to be an act of
abandonment of matrimonial home by Smriti.
43. It is admitted from the evidence on record that the first birthday of
29
the child was celebrated in Hotel Claridges, New Delhi on
2.12.2010, which was attended to by Perry. The child was admitted
in Toddler’s Train Play School in September, 2011 by both parents.
The second birthday was celebrated in Defence Colony Club, New
Delhi on 2.12.2011, which was again attended by Perry. Thus, at
no stage, Perry ever insisted upon the child not to stay in India
which fact is apparent from his conduct from the time Smriti came
to India till 26.4.2012, when Perry left India.
44. It is thereafter that the child was admitted in Delhi Public School,
Mathura Road in 2013, wherein Smriti had got the child admitted to
the school as a ‘single parent’. Later, while obtaining Aadhaar
card, again, Perry’s name was not mentioned. The Courts below
have found such aspect to be acts of parental alienation by Smriti.
Even though Perry’s name was not mentioned in the admission
form while seeking admission of the child to the school or in the
Aadhaar card, the fact remains that Perry continued to avail
visitation rights all throughout. It cannot be even remotely inferred
that Perry or his parents were alienated from the child in any
manner in view of the Counsellor’s report dated 21.7.2016. Also, it
is Perry who did not continue with Mediation. Similarly, the stand
against visitations to Perry was in Court to convey her concerns.
There is no instance where Smriti violated any direction of the
Court granting visitation rights to Perry.
45. As per Perry, he had booked return tickets for the child and Smriti
30
for 6.6.2012 but before that date, Smriti had filed suit for injunction
on 26.5.2012 wherein a restraint order was granted on 28.5.2012.
In that suit itself, Smriti had averred about the marital infidelity.
Smriti had invoked the jurisdiction of the Court on the allegations
that Perry had threatened to take the child forcibly away from her.
Smriti had lodged a police complaint on 5.5.2012 that she has
received a phone call from UK number of Perry on 5.5.2012 at 5:12
pm and later at 5:25 pm. She felt intimidated by his tone as he
had used violent language and asked her to send the child to
Kenya immediately. Perry had denied such allegations but the fact
remains that the dispute had arisen between the parties, thus
Smriti could be justified in invoking the jurisdiction of the Court to
protect the custody of the child with her.
46. The allegation of Smriti that Perry is racist has to be examined in
view of this background that even though Perry is a 3rd generation
resident of Kenya, he is still not looking for a matrimonial alliance
with a local woman. If he has a western lifestyle as professed by
him, then he should be looking for matrimonial alliance from the
western world. Maybe he believes that Indian women are gullible
who can be allured with the glamour of money which he has made.
Many in India believe that the grass is greener on the other side of
India. The mansions and the other possessions are shown to
women to attract them to marry. At least two of Indian women
have fallen trap to the web of this rich Non-Resident Indian. It is
this trap which led the woman from Mumbai and also Smriti to fall
31
in the web of Perry. It appears that the only purpose of marrying
an Indian woman is to use her for procreation. This observation
gets supports from the statement of Smriti that from the day she
conceived, the reaction of the family changed. Although they were
happy with the birth of the child as an heir apparent but the
position of Smriti was that of a caretaker of the child and not that
of a wife who, according to Indian customs, entitled to share life
jointly with her husband. She was used only to procreate child for
Kansagra family.
47. The allegation of slitting of wrists by Smriti was denied by her in
evidence when she deposed that they were old scars. The Court
have disbelieved such part of statement. During the course of
hearing, Smriti has filed notes for arguments wherein, it has been
stated that the scar on the left hand was the result of an injury
when she was around 11-12 years old in or around the year 1987.
The accident occurred at her home in Shimla when she accidentally
banged into a wooden door with a glass pane. The injury had to be
treated with about 7-8 stitches. The scar occurred many years
before marriage and appears to be visible in one of the wedding
photographs, the copy of which is attached with the Notes for
Arguments submitted by her. She stated that the faint scar on the
right hand was the result of a glass bangle breaking, which also
happened many years before marriage. She is not even able to
recall the incident which caused the injury as it is a very faint scar
and barely visible. However, the photograph does not show the
32
scar. Perry has not asserted the date, time or place of so-called
attempt to suicide nor has he examined any Psychologist or a
Doctor to determine the period of injury so received.
48. Therefore, I find that the plea to discredit Smriti was raised without
any legal or medical evidence. In fact, the Family Court discarded
the theory of suicidal tendencies and the evidence of self-inflicting
injury but the High Court reversed those findings without any good
or reasonable ground. The parties are in Court since 2012 and in
almost 8 years of litigation there has been never any incident or
allegation of self-harm or harm to the child on Smriti’s part.
49. Smriti also averred that Perry travels for 18 days in a month
outside Kenya. In response to such assertion, Perry in the written
statement has evasively denied the same however it has not been
disclosed as to for how many days he actually travels. In terms of
Order VIII Rule 3 of CPC, it shall not be sufficient for the defendant
to deny generally the grounds alleged by the plaintiff, but the
defendant must deal specifically with each allegation of fact of
which he does not admit the truth. Reference will be made to the
judgment of this Court in Badat and Co. Bombay v. East India
Trading Co.13, wherein, this Court considered the provisions of
Order VIII, Rule 3, Rule 4 and Rule 5 of the Code and held as under:
“11. xx xx xx
These three rules form an integrated code dealing with
the manner in which allegations of fact in the plaint
should be traversed and the legal consequences flowing
13 AIR 1964 SC 538
33
from its non-compliance. The written statement must
deal specifically with each allegation of fact in the plaint
and when a defendant denies any such fact, he must
not do so evasively, but answer the point of substance.
If his denial of a fact is not specific but evasive, the said
fact shall be taken to be admitted. In such an event, the
admission itself being proof, no other proof is
necessary……”
50. A perusal of the evasive reply in the replication filed by him, which
is part of pleadings in terms of Order VIII Rule 9 of the Code, shall
be treated as admission.
51. Perry was asked to produce his Passport for the period 2009-2012
in his cross-examination. It was stated that his old Passport was
taken by the Authorities at the time of renewal of Passport in the
year 2015. He denied the suggestion that the details of his visits as
indicated in Para 31 of his affidavit were unreliable. He stated that
it was wrong to suggest that he spent time in attending his
business activities in Mumbai and Rajkot on his visits to India. It
was admitted by him that he along with Smriti and child came to
India on 10.3.2012. He stayed for 9-10 days whereas Smriti and
the child remained in India with return tickets booked for 6.6.2012.
He has disclosed his working hours on a working day but the dates
of travel have been withheld from the Court. Perry did not produce
the best evidence and submitted that the passport has been taken
by the Authorities while issuing the new passport. It has to be
noted that even after renewal of the passport, the old passport is
returned to the holder as the passport is a valuable document,
having travel permissions etc. The days of travel outside Kenya
34
was within his knowledge alone, therefore, in terms of Section 106
of the Evidence Act, the onus was on Perry to disclose his dates of
travel in a month to rebut the stand of Smriti. It is reasonable to
infer that Perry needs to travel abroad quite frequently.
52. Perry having not cross-examined Smriti on the aspect of
matrimonial advertisement published; slitting of wrists by Smriti
and of his travels for more than 18 days in month or even the
explicit messages received by Perry on his mobile, shall be deemed
to be accepted by him. This Court in a Judgment reported as
Arvind Singh v. State of Maharashtra14 referred to rule of
evidence that it is absolutely essential to the proper conduct of a
cause, where it is intended to suggest that a witness if not
speaking the truth on a particular point, to direct his attention to
the fact by some questions put in cross-examination showing that
imputation is intended to be made, and not to take his evidence
and pass it by as a matter altogether unchallenged. This Court held
as under:
“57. The House of Lords in a judgment reported
as Browne v. Dunn, (1894) VI The Reports (67)
HL, considered the principles of appreciation of
evidence. Lord Chancellor Herschell, held that it is
absolutely essential to the proper conduct of a cause,
where it is intended to suggest that a witness if not
speaking the truth on a particular point, to direct his
attention to the fact by some questions put in crossexamination
showing that imputation is intended to be
made, and not to take his evidence and pass it by as a
matter altogether unchallenged. It was held as under:
“Now, my Lords, I cannot help saying that it
seems to me to be absolutely essential to the
14 2020 SCC OnLine SC 400
35
proper conduct of a cause, where it is intended
to suggest that a witness is not speaking the
truth on a particular point, to direct his attention
to the fact by some questions put in
crossexamination showing that that imputation
is intended to be made, and not to take his
evidence and pass it by as a matter altogether
unchallenged, and then, when it is impossible
for him to explain, as perhaps he might have
been able to do if such questions had been put
to him, the circumstances which it is suggested
indicate that the story he tells ought not to be
believed, to argue that he is a witness unworthy
of credit. My Lords, I have always understood
that if you intend to impeach a witness you are
bound, whilst he is in the box, to give him an
opportunity of making any explanation which is
open to him; and, as it seems to me, that is not
only a rule of professional practice in the
conduct of a case, but is essential to fair play
and fair dealing with witnesses. Sometimes
reflections have been made upon excessive
cross-examination of witnesses, and it has bene
complained of as undue; but it seems to me that
a cross-examination of a witness which errs in
the direction of excess may be far more fair to
him than to leave him without crossexamination,
and afterwards to suggest that he
is not a witness of truth, I mean upon a point on
which it is not otherwise perfectly clear that he
has had full notice beforehand that there is an
intention to impeach the credibility of the story
which he is telling.”
xx xx xx
63. Thus, the prosecution is required to bring home the
guilt beyond reasonable doubt. It is open to an accused
to raise such reasonable doubt by cross-examination of
the prosecution witnesses to discredit such witness in
respect of truthfulness and veracity. However, where the
statement of prosecution witnesses cannot be doubted
on the basis of the touchstone of truthfulness,
contradictions and inconsistencies, and the accused
wants to assert any particular fact which cannot be
made out from the prosecution evidence, it is
incumbent upon the accused to cross examine the
relevant witnesses to that extent. The witness, in order
36
to impeach the truthfulness of his statement, must be
cross-examined to seek any explanation in respect of a
version, which accused wants to rely upon rather to
raise an argument at the trial or appellate stage to infer
a fact when the opportunity given was not availed of as
part of fair play while appreciating the statement of the
witnesses. Thus, we hold that a party intending to bring
evidence to impeach or contradict the testimony of a
witness must give an opportunity to explain or answer
when the witness is in the witness box” .
(Emphasis supplied)
53. The rule of evidence in criminal trial is beyond reasonable doubt to
convict an accused but in civil cases is to prove a fact. The Rule of
evidence is much stricter in Criminal trial that the onus of proof in
Civil Cases. In the present case, attention of Perry was drawn to
various aspects mentioned earlier but he had not cross examined
Smriti on these material aspects leading to admission of facts as
deposed by Smriti.
54. A reading of the plaint of the Guardianship petition shows that
Perry relies upon availability of his parents in Kenya to take care of
the child and, on the other hand, stress on the physical condition of
Smriti’s mother to look after the child. I find that the entire basis to
seek appointment as guardian of the child is the availability of his
parents in Kenya and the physical condition of Smriti’s mother.
The entire basis is incorrect as in the presence of parents of the
child, the grandparents are not the determining factor to appoint a
guardian. The question of where does the welfare of the child lie
thus narrows down to the mother who has stopped practicing law
to nurture child as against the father who travels quite
substantially every month. In the absence of the father, the child
37
will be in the custody of nannies, maids and servants. The
grandparents would not be able to take care of the growing needs
of a young child. All things being equal, the presence of
grandparents can tilt in balance but where a mother who is
available 24/7 for guiding, caring and nurturing a growing child as
against a father who needs to travel outside his normal place of
stay frequently, I find that the mother is more suitable in whose
hands the welfare of the child is secured.
55. It is made clear that I am not commenting upon the allegations of
cruelty or lack of conjugal rights as it is a matter of trial in the
matrimonial proceedings to avoid any prejudice to the rights of the
parties in the said case.
56. The argument of Mr. Mehta that the child is about to enter into his
teens, therefore, he will be more comfortable with the father, is
based upon assumptions. The requirement of a growing child can
be better understood by the mother who has the opportunity to
have supervision over the child at all times and in this case from
his birth. Further, the conduct of Perry and his parents is inclined
towards pampering the child inasmuch as an iPhone was given to
the child when he was of six years of age. Perry and/ or his parents
have pampered the child by giving him 4-5 iPads. It is unrebutted
testimony led by Smriti. She has also deposed that child had once
broken one newly purchased iPad but Perry bought another iPad for
the child immediately without any counselling to value the things
38
purchased. These are instances which suggests pampering the
child. From the controlled and supervised household of the mother,
if the custody is given to the father, the sudden exposure to the
materialistic things have the potency to derail the studies and wellbeing
of the growing child.
57. It is also to be considered that Perry is facing a charge of
manslaughter on 48 counts. Though Perry was acquitted by the
first Court but the High Court has set aside the order of acquittal
and ordered re-trial. The matter, as argued by Perry, is currently
pending before the Superior Court. Maybe, Perry and his family are
involved in philanthropic work in Kenya but the threat of criminal
prosecution is writ large over Perry. In these circumstances, putting
the child to the trauma of trial in Kenya would not be in his best
interests and will have adverse psychological impact on him.
Sharing a bond with the father for some time where the father and
grandfather occasionally visit and pamper the child is different than
staying in a wholly new environment as it is a difficult
transformation for the child of a young age with new fellow
students and teachers.
58. Perry has relied upon the recordings made by him on 7.1.2015 and
8.1.2015 prior to filing of his affidavit Ex. PW-1 on 23.1.2015. Perry
had also produced transcripts wherein the child purportedly stated
that Smriti has told him that there are witches in Kenya. However,
the said transcripts were not put to Smriti or her mother when they
39
appeared as witnesses. Smriti was not confronted either with the
CDs or the transcripts to elucidate response from Smriti.
59. I find that creation of recording is nothing but an attempt to create
evidence using child of almost six years of age. One recording is
dated 7.1.2015 (Ex.PW1/5) which has a heading “India Visitation
DVD no. 09 Video clip no. 328, Date: 07 Jan 2015, Time: 17:33” and
another recording is dated 8.1.2015 which has a heading “India
Visitation DVD no. 09 Video clip no. 330, Date: 08 Jan 2015, Time:
15:31”. It only shows that the recording on the DVDs was only to
fabricate the evidence against Smriti. It shows that Perry can stoop
so low so as to create evidence by using an innocent child of six
years. It appears that the first DVD is 9th video clip recorded on
7.1.2015. Maybe, the other earlier 8 video clips were not helpful to
Perry. Similarly, video clip no. 330 recorded on 8.1.2015 also shows
that there were intervening video clips as well which have been
withheld from the Court. Such production of the evidence to say
the least shows the mental state of mind of Perry which disentitles
him from the guardianship of the child. Still further, Smriti has not
been confronted with such recordings so as to give any opportunity
to explain the utterances of the child.
60. Another argument was raised by Mr. Mehta that the child is staying
in India only on account of pending court cases. I do not find that
any benefit can be granted to Perry on account of time gap due to
pending court cases. The fact is that the child has grown in the
40
last eight years during the pendency of the proceedings. The child
is at such a stage in life where he will soon undergo his
psychological changes. Though, ideally both the parents should
nurture the child, but the next best solution is the exclusive
custody with Smriti and liberal visitation rights to Perry.
61. Another factor which cannot be lost sight of that there is nothing
which prohibits Perry from marrying again. If that is to happen, the
child would be left to be brought up by the house help or
grandparents or by step-mother as against Smriti who is bringing
up the child in India. Smriti is possessed of substantial means as is
required from an upper middle-class family. Perry may be super
rich but keeping in view his professional commitments and his
adventurous background, I find that custody of the child should
remain with Smriti. The child should be given liberty to choose his
destination after he comes out of age. Since, it was Perry who has
invoked the jurisdiction of the Family Court to seek his appointment
as the guardian, the onus of proof that the welfare of minor rests
with him is on him. I find that Perry has failed to discharge such
onus.
62. I find that Smriti has no disability so as to take custody from her.
She is well educated, was a practicing Advocate who left her law
practice to nurture her child. Therefore, she has the maturity and
sense of judgment. She has mental stability as even though the
parties are at loggerheads, the child has a cordial relation with
Perry. Therefore, I find that there is no valid plausible reason to
41
take custody of Child from Smriti to hand over to Perry as a chattel.
(b) Ability to provide access to Schools
63. Delhi Public School is one of the prestigious schools in National
Capital Region. The child is studying in the said school since 2013.
I have no doubt that there are good schools in Kenya as well
however the education of the child in Delhi Public School cannot be
said to be in any way inferior to the education in Kenya. At times,
we tend to believe that other countries are better in every sphere
as compared to India, though it is true. Therefore, shifting of child
at this stage of life would be counter-productive to the growth of
child.
64. Mr. Mehta raised an argument that the child was not regular in
School for the years 2015-16 and 2016-17. The child was 4-5 years
of age back then. It was not any high academic session which the
child was deprived of. The absence of the child from the school for
some days at such a young age is wholly inconsequential as it is
basically a play time for the children and not a time for serious
studies.
(c) Moral Character
65. There is no allegation or evidence against Smriti regarding her
character whereas there is evidence of relationship of Perry with
another woman. There is allegation of liaison with other woman
during the subsistence of marriage. Perry was confronted with the
subject matter of the seven messages (Mark B) but he denied the
same. The five SMSs were received by Perry on 2.4.2012 and
another two on 4.4.2012. The copies of such messages confronted
to Perry has the mobile number of Perry and of Sonia. Admittedly,
the parties came to India on 10.3.2012. Perry left India after some
days and again came back on 21.4.2012. It is then, as alleged by
Smriti, that she stumbled upon these explicit messages on the
Blackberry phone with Vodafone as a service provider of Perry
which she forwarded to her mobile on 22.4.2012. Smriti has
produced such messages forwarded to her mobile phone on the
same day between 1:52 am to 1:56 am on 22.4.2012. It was then
forwarded to her e-mail account on 5.5.2012 and 6.5.2012. The
date format is MMDDYYYY. It has not been disputed that the mobile
number mentioned in such messages and e-mails from which the
messages were received and/ or forwarded is used by Perry.
66. Perry denied the suggestion that in April, 2012, he showed no
interest in talking to or interacting with his wife and child and was
busy in chatting/texting on phone throughout. He denied the
suggestion that he was having extramarital affair with Sonia. He
stated that it was wrong to suggest that he had denied any
conjugal relations with his wife since 2010. He denied the
suggestion that in April, 2012, his wife came across text messages
between him and Sonia and also denied that the text messages
contained in seven sheets (Mark-B) relate to him. He stated that
he did not know anyone by the name Sonia from Mozambique.
67. Perry has denied any connection with Ms. Sonia. In the suggestions
given to Smriti, the veracity of messages which were forwarded to
an e-mail account of Smriti has not been disputed. Once the
messages were in the mobile of Smriti, the print-out could be taken
by sending the same on an e-mail or by taking screenshots and
then by sending it to e-mail or directly from a compatible printer.
Maybe, some people are not user friendly to take screenshots and
then to take print-out but Smriti adopted the second alternative of
sending the messages on her e-mail ID which she did on 5.5.2012
and 6.5.2012. The extract from one of the printouts of e-mail reads
as under:
“Fw: ******
Smriti Madan Kansagra <smriti…..@hotmail.com>
5/6/2012 5:05 AM
To: smritixxxx@hotmail.com <smritixxxx@hotmail.com>
--------SMS
From: +91981xxxx433
Received: 22 Apr 2012 01:52
Subject: Morning ******
*************
Sent on my BlackBerry® from Vodafone”
(Note: The complete email address, mobile number and the
message is not made part of the order so as to protect the
privacy of the parties.)
68. Such messages forwarded to her email account are supported by
an affidavit of Smriti under Section 65B of the Evidence Act.
Though, it was argued by Mr. Mehta that the affidavit is not proper
in terms of requirement of Section 65B of the Evidence Act but the
fact remains that the transfer of messages was firstly made to the
mobile device of Smriti and later to her e-mail. Such affidavit
satisfies the requirement of law as has been held by this Court in
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantya 2020 SCC Online SC 571 decided on 14.7.2020.
“65. It may also be seen that the person who gives this
certificate can be anyone out of several persons who
occupy a ‘responsible official position’ in relation to the
operation of the relevant device, as also the person who
may otherwise be in the ‘management of relevant
activities’ spoken of in Sub-section (4) of Section 65B.
Considering that such certificate may also be given long
after the electronic record has actually been produced
by the computer, Section 65B(4) makes it clear that it is
sufficient that such person gives the requisite certificate
to the “best of his knowledge and belief” (Obviously, the
word “and” between knowledge and belief in Section
65B(4) must be read as “or”, as a person cannot testify
to the best of his knowledge and belief at the same
time)”.
69. The messages sent to Perry may not be proved by Smriti to be
from Sonia, a woman from Mozambique. But in terms of Section
106 of the Evidence Act, the fact whether such messages were
received by Perry or not in his mobile phone, was within his means
of knowledge. Thus, the burden of disproving such fact was upon
Perry. He failed to rebut the evidence led by Smriti. The necessary
consequence is that the e-mails showing explicit sexual talks
between Perry and another woman were duly proved. The fact
that such messages were found in the mobile used by Perry are
indicative of his adventures outside marriage.
70. I find that both the Courts have misread such printouts to hold that
they are not proved as Perry was not in India in the month of May,
2012. The Courts overlooked the fact that the messages were
forwarded by Smriti to her mobile on 22.4.2012 when admittedly
Perry was staying with Smriti at her house in Defence Colony. He
left India only on 26.4.2012. The messages were sent from the
Indian mobile number used by Perry. Perry has not given any
explanation how the messages came to be delivered to his phone.
The denial of knowing Ms. Sonia is of no consequence as it was for
him to explain how the messages were in his mobile. Therefore, I
have no hesitation to hold that the conduct of Perry in April, 2012
in reference to the exchange of messages with a woman are
enough to create bitterness in the relationship of the parties.
71. I do not find any merit in the argument raised by Mr. Mehta that
Smriti has been taking contradictory stand about these messages.
It is argued that no reference was made to these messages in the
police complaint made on 5.5.2012 or in the suit for injunction filed
on 26.5.2012. Even in her Affidavit in evidence dated 3.7.2017, she
has deposed that Perry has received these messages on 22.4.2012,
which she immediately forwarded to her email account. In the
written submissions submitted before this Court, it was submitted
that the messages were dated 22.4.2012, which were emailed to
her account in May 2012. It is also argued that the Certificate
under Section 65B of the Evidence Act is not proper as she has only
averred that messages are the same as the content of her Inbox of
email account.
72. I do not find any merit in the arguments raised that Smriti has not
mentioned about these messages in the police complaint filed by
her. The police complaint was regarding the alleged threats stated
to be given by Perry to take Child from her custody. The messages
were not expected to part of such information. Secondly, in the
Plaint (Para 23), she has made reference to messages though
without further details. The subject matter of suit was injunction
regarding custody of child and not the inter-se marital disputes.
The requirement of Order VI, Rule 2 of the Code is to give “material
facts” on which party relies for his claim. In the Suit for injunction,
the detailed mention of these messages was not warranted. Firstly,
it was suit for injunction for limited relief against forcible custody of
Child and not divorce petition, or maintenance application or
custody proceedings. Further, her affidavit in evidence submitted
on 3.7.2017 is not being read correctly. She had stated that in the
month of April, 2012, when Perry was visiting Delhi, she came
across certain messages, which she immediately emailed to her
email account. There is no cross examination on the veracity of the
messages, as mentioned in earlier paras of this order. Still further,
she has not stated that the messages were dated 22.4.2012. The
entire statement has to be read. The word “immediately” is an act
of forwarding the messages to her email account and not in the
context of receipt of the messages. The written submissions
submitted is not an evidence on oath, prepared by the Advocates
engaged by her. The written submission cannot be used to contract
a statement made on oath. I do not find any merit in the argument
that Certificate on affidavit given is not proper. The fact is that she
had limited access to mobile of Perry only to forward the messages
to her email account. She cannot be expected to do impossible
thing, to verify the contents of messages on the mobile of Perry.
This Court in Arjun Panditrao Khotkar held that Section 65B(4)
makes it clear that it is sufficient that such person gives the
requisite certificate to the best of his knowledge or belief.
73. Still further, Perry has not produced any of his house staff either
from Kenya or India or his cousin in USA or UK who could depose
about the behaviour or conduct of Smriti. Perry has levelled
unsubstantiated allegations against Smriti.
74. It may be further stated that it is categorical statement of Smriti
that there was no restitution of conjugal relationship since the year
2010. Such fact was sought to be rebutted by Mr. Mehta, learned
counsel appearing on behalf of Perry, on the basis of an affidavit
filed in support of the petition for dissolution of marriage wherein
she has sworn that the parties have been living separately since
26.4.2012 and there has been no resumption of cohabitation
and/or conjugal rights since 26.4.2012. Such argument of Mr.
Mehta was rebutted by Mr. Shyam Divan, learned senior counsel
appearing on behalf of Smriti on the ground that such affidavit was
in support of the petition of dissolution of marriage. Smriti has
48
categorically stated in the petition about absence of conjugal
relationship since 2010 after the birth of the child and the fact that
Perry never intended to work in order to have a successful and
happy married life. Perry got married to her for the purpose of
procreation and her utility after giving birth to child was to only
take care of him. The stand of Smriti cannot be brushed aside,
though in the present proceedings such stand need not be
examined as the primary question before us is as to where the
welfare of the child lies.
(d) Ability to provide continuing involvement in the community
75. Smriti has left her active law practice to nurture her child. She has
relatives in Delhi and also in many other cities. She is continuously
involved in providing healthy and holistic upbringing of the child.
Though Perry has been regularly visiting India every month to visit
the child, but that does not entitle him to the guardianship of the
child as he is not a truthful person. He has the audacity to deny
the marriage proposed initially through a matrimonial
advertisement. He has not led evidence in respect of sexually
explicit messages received by him from another woman. He has
been found to pamper child which has the potential of derailing the
education and further upbringing in the crucial years of teens.
(e) Relationship with the child and Parental alienation
76. When the matter was pending in appeal before the High Court
against an interim order of the Family Court in Guardianship
49
proceedings, the Court appointed Ms. Sadhana Ramachandran as a
Mediator by its order dated 6.5.2016. The Child was produced
before the Court on 11.5.2016 after he had interaction with the
learned Mediator and Ms. Swati Shah, Child Counsellor. The Court
in its order observed as under:
“4. We also note that the child was comfortable in his
interaction with his father and grandparents in court.
The child has expressed happiness at his visitations with
his father and grandparents. He unreservedly stated
that he looks forward to the same. Master Aditya Vikram
Kansagra is also able to identify other relatives in Kenya
and enthusiastically refers to his experiences in that
country. It is apparent that the child has bonded well
with them.
5. We must note that the child is at the same time
deeply attached to his mother and Nani. His bearing and
personality clearly bear the stamp of the fine upbringing
being given to him by the appellant and her mother.”
77. Ms. Swati Shah, the Counsellor who interacted with the child when
he was 7 years old, gave report on 21.7.2016. She reported as
under:
“Aditya, son of Perry and Smriti is almost seven years
old. He studies in the second standard at one of the
reputed schools in Delhi. Two sessions were held in the
children’s room of the Mediation Centre to interact with
Aditya. For the first impression, he appeared to be
smart, intelligent kid who hesitated a bit while talking.
He held good eye contact. His eye-hand co-ordination
seemed age appropriate. He often repeated words
while completing his sentences. He also looked
somewhat more mature for his age. He seemed familiar
with the words like ‘visitation’, ‘court’, ‘visa’, etc. I also
happened to meet his parents Perry and Smriti for a
brief while during the first session.
Aditya stays with his mother in Delhi while his father
travels from Kenya once every month to visit him. While
speaking of his parents, Aditya showed lot of closeness
50
and affinity for his father which was surprising for a child
who lives with his mother and spends very little time
with father only during visitations. Father seems to be
the person he idolises. He also talked affectionately of
his Dada in particular and Dadi (paternal grandparents).
He talked about the house in Kenya which he might be
knowing only through pictures seen during visitation as
he was very young when Smriti returned to India along
with him.
Various questions were asked to know more about
Aditya’s leanings towards his father and whether his
expressions of love and affinity were genuine. Aditya is
ready to go to Kenya. He also mentioned that if he can’t
go to Kenya now, he would do so when he grows up a
bit. He talked about staying in England for further
education which is Papa would provide for. His affect
and bond with his father seemed genuine and not
something that appears tutored or forced in some
manner.
Aditya seems comfortable with his mother and Nani
(maternal grandmother) as well. In my second session
with Aditya, he talked about his recent vacation in
Kashmir along with his mother and how he went fishing
there. When asked that if he goes to Kenya and doesn’t
like it there or misses his mother what could be done, he
answered that he would come back to Delhi. However,
he is not uncomfortable at the idea of making a trip to
Kenya. When asked about acquiring a toy game or a
skill (playing darts) his talk was all father-centric.
According to Smriti, his scholastic progress is
satisfactory at the moment. However, he may face
difficulties in higher grades as it was observed that his
general ability to spell and calculate seems somewhat
weak.
In matrimonial disputes, when custodial issues arise,
young children generally show affinity and inclination
towards the parent to whom their custody belongs and
they live with. Aditya surprisingly shows more affection
towards Perry and his demeanour sounds genuine.
While adopting holistic approach to the child’s growth, it
may be considered to allot more time to Perry during
further visitations and then extend it to overnight
visitation.
51
If Aditya’s interaction with his father increases with
longer visitations the progress in their relationship could
be gauged after a couple of months. That could pave
the way for negotiations between his parents.”
78. Ms. Sadhana Ramachandran, the Mediator in her report dated
3.11.2016 submitted as under:
“However, on 31.10.2016, the undersigned received an
e-mail from the Respondent, Mr. Perry Kansagra
requesting her to close the mediation proceedings. The
said e-mail is annexed herewith. The undersigned
informed the Appellant of the said communication.
xx xx xx
The undersigned believes that the entire credit for
Aditya being happy and balanced at home and in school
goes to both his parents Smriti Madan and Perry
Kansagra, who have made very possible effort to ensure
that even in the trying circumstances that the child is in,
he loves both his parents and his maternal grand
mother and paternal grand parents.”
79. The child counsellor as well as the Mediator have credited Smriti for
the upbringing of the child even though there is discord in the
matrimonial life. The credit has to go to Smriti who has brought up
the child in a balanced way without feeding any ill will against
Perry.
80. Mr. Mehta argued that the report of the Counsellor alone can be
read in view of the intra-parties’ judgment of this Court in Perry
Kansagra v. Madan Kansagra16 and that the Report of the
Mediator submitted to the Court cannot be taken into
consideration. I find that the Mediator’s report, to the extent that it
16 2019 SCC Online SC 211
52
reported that the mediation proceedings were dropped on the basis
of an email from Perry, is relevant and can be taken into
consideration. I find that child is attached to both parents.
Therefore, there is no compelling reason to alter the existing
arrangement. He has his entire life to learn business skills or the
entrepreneurship. He will develop these aspects in life in the later
part of his education and not while he is studying in a school.
81. Arguments on behalf of Perry are that filing of a suit for injunction
on the basis of incessant fights between the parties, allegation of
adultery on the part of Perry which Smriti discovered in April, 2012
and the alleged threat given by Perry that he will remove the child
from Smriti in India are baseless. It was also argued that instances
of adulterous relationship were neither mentioned in the suit filed
on 26.5.2012 nor in the police complaint made on 5.5.2012. It was
argued that filing of suit was mala fide and that Smriti’s
abandonment of her maternal home, removal of child from Kenya
and from the custody of Perry must be held against her. It was
further submitted that Perry is more suitable and a better guardian
keeping in view the bond shared between him and his son, future
prospects of the child, living conditions and surroundings in Kenya
and overall personality development of child. It was also argued
that Smriti was unfit to retain custody because of parental
alienation supported by school records, Aadhaar Card, transcript
(Ex.PW1/5), filing of suit, obstruction to visitations and no genuine
concern for child which may not be good influence over child.
53
82. I do not find any merit in the arguments raised by Mr. Mehta that
Smriti has alienated Perry from the child. The filing of suit on the
basis of alleged threats of taking of child from her custody cannot
be said to be a case of parental alienation as Smriti has invoked
the jurisdiction of the Court which is lawfully vested in her. Much
ado has been made in respect of prayer (c) in a suit for injunction
filed by her. The prayer is only in respect of unsupervised meeting
of Perry and his parents with the child. It has also come on record
that Perry and his parents were granted visitation rights during the
pendency of the suit. Therefore, filing of such a suit cannot be said
to be considered as instance of parental alienation. The allegation
of adventurism on the part of Perry with another woman during the
subsistence of marriage has not been rebutted by Perry in any
substantive manner. Perry denied knowing this woman from
Mozambique but apart from denial, he has not explained how such
explicit messages arrived in his mobile. The argument that Smriti
has not disclosed the instances of such messages in her suit for
injunction or in the report to the Police on 5.5.2012 is without any
substance. The report to the Police was against threatened
abduction of the child by Perry. It was not in respect of conduct of
Perry as against Smriti as his wife. Therefore, such instances were
not warranted to be mentioned in the Police report. Similarly, the
suit was also against threatened forceable custody of the Child by
Perry. It was disclosed in the plaint itself that Perry would be
constantly text messaging someone from his mobile which she
54
realised later on that it was related to his breach of marital fidelity.
Therefore, the suit cannot be held to be mala fide. Smriti had a
reasonable belief on the basis of conduct of Perry which compelled
her to invoke the jurisdiction of the competent Court, therefore,
invocation of jurisdiction of a competent Court cannot be treated to
be an adverse circumstance against her.
83. It was argued that Perry was the one indulging in parental
alienation which was detrimental to the welfare and development
of the child and the time he spent during visitation as he
constantly showed the photographs and videos of the houses in
Kenya, the farm in Solai and by giving expensive gifts to him.
Smriti deposed as under:
“69. That the Petitioner and his family are not making
any efforts to bond with the child but are trying to buy
the child's love with expensive and highly inappropriate
gifts for the child. The Petitioner has bought the child a
cell phone and handed it to him during one of the
visitations. The child is of a young and impressionable
age and therefore the use of cell phones at such a
young age is not in the best interest of the child.
Therefore the act of the Petitioner to give a cell phone to
the child was contrary to the welfare and interest of the
child. The Petitioner without informing me or consulting
me, forcibly put a cell phone in the hand of the child and
immediately tried to leave. I had to stop the Petitioner
and inform him about my objection with the child who is
merely 6 years of age to use a cell phone. However the
Petitioner paid no heed to my concern and left.
70. The Petitioner has also bought the child multiple
(four - five) iPads. On a visitation, the Petitioner and his
parent had taken the child at the time was six (5) to a
mall. They went into an electronics shop where the
Petitioner bought an iPad for the child. Just as they were
exiting the shop, the child dropped the iPad and it broke.
The Petitioner simply threw away the broken iPad and
bought another one for the child immediately, without
55
admonishing the child or trying to explain the
importance of money and how to be careful with
objects. Instead of making this incident a learning
opportunity, the Petitioner completely neglected his
responsibilities as a parent.”
84. Admittedly, no cross-examination has been conducted on Smriti
regarding her statement contained in paras 69 and 70, as
reproduced above. Mr. Mehta argued that no such pleading was
raised and therefore such evidence was beyond the pleadings.
Smriti had filed the written statement in the year 2013, when the
child was three years of age. The incidents referred above are of
the time when the child was 6 years of age. They being subsequent
events could very well be taken into consideration. Even if it was a
new fact, Perry had to cross examine the witness and seek his reexamination,
if he wanted to rebut the evidence given by Smriti.
Therefore, such evidence led by Smriti cannot be ignored, which
shows that the child of six years was pampered.
85. In fact, the recorded version of unproved conversation with the
child shows the vicious mind of Perry to prompt child to say
negative things about Smriti. Smriti has not been confronted with
the recorded version or the transcript nor such recorded version is
said to be proved by furnishing a certificate as required under
Section 65B of the Evidence Act. Had Perry confronted Smriti with
recorded version, Perry could be asked as to why selective
recordings have been produced and not all the recordings made by
him which is evident from the title and recordings made on
56
7.1.2015 and 8.1.2015. Another argument raised by Mr. Mehta is
that the child is watching his mother and grandmother surviving on
rental income, therefore, the child is not learning that working is
necessary to live a life. I do not find any merit in the said
argument. Upbringing of a child warrants full time attention. Perry
may engage nannies and maids but that will not be comparable to
mother’s contribution in upbringing of the child. The mother is well
educated, a law graduate and had been practicing law. Therefore,
merely on the strength of financial superiority, Perry cannot
denounce the effort of Smriti in upbringing of the child. Smriti is
categorical that the conjugal relationship has come to an end after
her separation as the sole intention of Perry was to use Smriti to
procreate child for him. His lack of respect for his spouse earlier
led to the separation with a woman from Mumbai. The said trait
has manifested again now as against Smriti.
86. Mr. Mehta has argued that the basis of parental alienation is in
prayer (c) in the suit for injunction filed by Smriti is that she
applied for admission to Delhi Public School under ‘single parent
category’, the child’s Aadhaar card does not mention Perry’s name
and that the child has spoken against Perry and Kenya in a
transcript of conversation (Ex.PW1/F) in January, 2015. I find that
the instances of parental alienation alleged by Perry are wholly
untenable. The instances such as admission of child in Delhi Public
School without the name of Perry, Aadhaar Card without Perry’s
name are not the acts of parental alienation. Parental alienation is
57
to be assessed in respect of rights of visitation and custody to a
parent. The admission of child to a School or issuance of Aadhaar
Card with a single parent name may not be proper but such acts
cannot be said to be parental alienation.
87. The prayer (c), as reproduced in Para 7 above, in the suit for
injunction is that the child should not be removed to pass a decree
for permanent injunction restraining Perry and his parents, agents
and representatives from meeting the child “without
consent/presence” of Smriti. The invocation of jurisdiction and
claim of relief in a suit does not amount to alienation of the father.
Firstly, the prayer is not absolute but only to the extent that the
defendants should not meet the child without the consent and
presence of Smriti. Smriti has therefore not claimed absolute right
over the child in such proceedings but only foreseeable custody of
the child. Secondly, invocation of the jurisdiction of the Court for
vindication of one’s right will not amount to alienation of the father
wherein Perry has exercised rights of visitation including
unsupervised visitation rights.
88. In fact, the High Court, vide order dated 31.5.2018, granted interim
custody of the child to Perry for a week i.e. from 9.6.2018 to
15.6.2018. The Counsellor’s report also gave credit to Smriti that
in spite of having an exclusive custody over the child, she has not
tutored child against Perry or grandparents. Thus, Perry has failed
to prove any parental alienation by Smriti. In fact, Perry himself has
58
come out to be a person who is not truthful, uses his money to
pamper the child and poison him against Smriti.
(II) Whether Financial Superiority can be the decisive factor to
handover the custody to a parent
89. Though, Perry is possessed of much more financial capacity than
Smriti but Smriti is living in Defence Colony having one floor to
herself and another with her mother. Defence Colony is one of the
good localities in Delhi. Maybe, it is not comparable to the Farm
House of Perry in Kenya of 13 bedrooms as mentioned by him but,
keeping in view the Indian standards of living, the Child is being
very well taken care of. The rental income accruing to the mother
of Smriti is of more than Rs. 20 lakhs, as admitted by Perry himself,
whereas even after paying Rs.7 lakhs (approx.) as monthly
installment of the loan taken from the Bank, Smriti has sufficient
means available to take care of herself and the child. It is not
comparable to the status of Perry in Kenya in any manner, which
she is entitled to as wife of Perry. However, such assessment is
subject to the rights of the parties in the pending maintenance
proceedings.
90. Mr. Divan had raised an argument that Perry’s financial superiority
cannot be a decisive factor to hand over the custody to him. The
Family Court held that Smriti lives in a flat in a multi-storied
building, the ground floor of her house is a commercial
establishment and upper floor is used for residence. Factually, the
statement of Smriti is that she is residing on one floor of a house in
59
Defence Colony whereas her mother is residing on a separate floor
in the same building. Smriti has deposed that there are six
bedrooms, two drawing rooms, two dining rooms, six bathrooms
and the entire terrace. This kind of accommodation which is
available is sufficient for three people. There was no crossexamination
conducted by Perry on this part of testimony of Smriti.
Perry is contributing Rs. 1,00,000/- per month as maintenance
towards the child only from February, 2016 and has not given any
maintenance to Smriti and the child since 2012 till February, 2016.
This Court in a judgment reported as Smt. Surinder Kaur
Sandhu v. Harbax Singh Sandhu & Anr.17 held as under:
“8. Some of these circumstances mentioned by the
learned Judge are not beside the point but, their
comparative assessment is difficult to accept as made.
For example, the “traumatic experience of a conviction
on a criminal charge” is not a factor in favour of the
father, especially when his conduct following
immediately upon his release on probation shows that
the experience has not chastened him. On the whole,
we are unable to agree that the welfare of the boy
requires that he should live with his father or with the
grandparents. The father is a man without a character
who offered solicitation to the commission of his wife's
murder. The wife obtained an order of probation for him
but, he abused her magnanimity by running away with
the boy soon after the probationary period was over.
Even in that act, he displayed a singular lack of respect
for law by obtaining a duplicate passport for the boy on
an untrue representation that the original passport was
lost. The original passport was, to his knowledge, in the
keeping of his wife. In this background, we do not regard
the affluence of the husband's parents to be a
circumstance of such overwhelming importance as to tilt
the balance in favour of the father on the question of
what is truly for the welfare of the minor. At any rate, we
17 (1984) 3 SCC 698
60
are unable to agree that it will be less for the welfare of
the minor if he lived with his mother. He was whisked
away from her and the question is whether, there are
any circumstances to support the view that the new
environment in which he is wrongfully brought is more
conducive to his welfare. He is about 8 years of age and
the loving care of the mother ought not to be denied to
him. The father is made of coarse stuff. The mother
earns an income of £100 a week, which is certainly not
large by English standards, but is not so low as not to
enable her to take reasonable care of the boy.”
91. In Gaurav Nagpal; Surinder Kaur Sandhu; and, Dhanwanti
Joshi v. Madhav Unte18, it was held that financial superiority of
one parent cannot be the criteria for the change of custody from
one parent to the other. Therefore, though Perry has more
financial resources with him, but that alone would not entitle him
to have physical custody of the child.
(III) Continued Supervisory Jurisdiction of Indian Courts is
essential for Aditya’s Welfare
92. Mr. Divan has vehemently argued that this Court exercises parens
patriae jurisdiction over the children who reside within the local
limits of the jurisdiction of this Court. It was argued that the
continuing supervisory jurisdiction is a necessary concomitant of
this Court. The jurisdiction of the Family Court at Delhi was
invoked by Perry for the reason that the child is an ordinary
resident in Delhi. The jurisdiction of Courts in India over the child
continues even after an order of appointment of guardian.
Sections 26, 39(h), 43 and 44 of the Act ensure that the Court
continues to have supervisory jurisdiction over the ward even after
18 (1998) 1 SCC 112
61
passing of the orders.
93. Mr. Mehta relied on Section 26 of the Act to contend that the
jurisdiction of this Court would continue even after the ward is
away from the territorial limits of this Court. He relied upon a
judgment of this Court in Jasmeet Kaur v. State (NCT of Delhi)
& Anr.19 that he is willing to have an order from the Kenyan Court
to ensure that Perry remains bound by the orders of this Court
which can be executed, if need be, by the Kenyan Court. It was
also stated that the argument raised by Smriti that child is well
settled in India and the apprehension that the Courts in India will
lose jurisdiction are unfounded and baseless. The contention
regarding the incident of dam burst was said to be irrelevant in the
present matter since there is an appeal pending before the Higher
Court of Kenya. Also, the allegations of alcoholism and racism were
denied by Perry.
94. I do not find any merit in the said argument raised by Mr. Mehta.
Section 26 of the Act puts a restriction on the rights of a guardian
to not remove the ward from the limits of the jurisdiction without
leave of the Court except for such purposes as may be prescribed.
In terms of Section 4(5) of the Act, the District Court is having
jurisdiction to entertain an application under the Act. The
Jurisdiction of the Court within the meaning of Section 26 of the Act
is the territorial jurisdiction of Court. It does not mean extraterritorial
jurisdiction beyond the physical boundaries of India. The
19 2019 (17) Scale 672
62
Court can permit the movement of Child within India and not
beyond. Similarly, a guardian appointed by the Court can be
removed under Section 39(h) of the Act, if the guardian ceases to
reside within the local limits of the jurisdiction of the Court.
Section 44 contemplates penalty for removal of ward from the
jurisdiction of the Court i.e. Delhi. The Court can grant permission
only within the territorial limits to which the Act is applicable.
Therefore, a guardian appointed by the Family Court under the Act
cannot remove the ward from the jurisdiction of Delhi Family Court.
The Family Court could permit the removal of the ward from the
limits of its jurisdiction but within country as the Family Court
would become incompetent to ensure compliance of its directions
once the child is removed from the boundaries of the country.
95. The judgment in Jasmeet Kaur arises out of very different facts.
In that case, both the parents were US citizens. The father had filed
a writ of Habeas Corpus for production of his children who were
said to be illegally abducted by the mother from his custody in USA
before the Court along with their US passports. Such petition was
allowed by the High Court and the mother was directed to return to
US along with the two minor children within a period of 3 weeks. It
was observed that the parties had abandoned their domicile of
origin i.e. India and set up their matrimonial home in US. Therefore,
when the mother decided not to return to US, it was held that she
acted in her self-interest and not in the best interest of the
children. The High Court held that the children have a right to be
63
brought up by both the parents as a family is in U.S.
96. The father had instituted custody proceedings before US County
Court as well wherein an ex-parte interim order granting temporary
custody of both the children to the father was passed with
supervised visitation rights of the mother. Thereafter, the Court
passed a final order directing the mother to return to US with the
minor children and granted sole legal and physical custody of both
the children to the father with supervised visitation rights to the
mother.
97. The mother also had filed a petition under the Act for permanent
and sole custody of her children in India. In such petition, the
father filed an application seeking rejection of the plaint under
Order VII Rule 11 CPC. The Family Court allowed the application
and dismissed the guardianship petition. Such order was affirmed
by the High Court in appeal. Still aggrieved, the mother had filed
an appeal before this Court. This Court set aside the order passed
under Order VII Rule 11 CPC. The case was remitted to the Family
Court to be decided on merits. Thereafter on remand, Family Court
held that Indian Courts would not have jurisdiction to entertain
petition under the Act. The Family Court held that paramount
interest of the children would lie in the shared parenting by parties
in US and the mother was not entitled to the sole custody of the
children. The Family Court also held that the Indian Courts would
lack jurisdiction to entertain the guardianship petition. The first
64
appeal was dismissed by the High Court as well on the same
ground. Further, since there was an order of competent US Court,
the High Court directed the father to submit an affidavit of
undertaking to comply with the directions by the Superior Court of
Stanford. The mother finally agreed to return to US with the minor
children in agreement to the directions issued by this Court. The
said judgment would not be applicable to the facts of the present
case as there is no order of competent Foreign Court in respect of
custody of minor.
98. It may be noticed that India and Kenya are not signatory to the
Convention on Civil Aspects on International Child Abduction, 1980.
This Court in Nithya Anand Raghavan v. State (NCT of Delhi)
& Anr.20, considering such aspect, held that as regards the non-
Convention countries, the law is that the court in the country to
which the child has been removed must consider the question on
merits bearing the welfare of the child as of paramount importance
and reckon the order of the foreign court as only a factor to be
taken into consideration. There can be summary jurisdiction in the
interests of the child or an elaborate inquiry as welfare of the child
is of paramount consideration. This Court held as under:
“40 …Thus, while examining the issue the courts in India
are free to decline the relief of return of the child
brought within its jurisdiction, if it is satisfied that the
child is now settled in its new environment or if it would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable position or if
the child is quite mature and objects to its return. We
are in respectful agreement with the aforementioned
20 (2017) 8 SCC 454
65
exposition.”
99. The judgment of this Court in Sri Nilanjan Bhattacharya v. The
State of Karnataka & Ors.21 arises out of a Habeas Corpus
petition filed by the appellant in respect of 3½ years old child. The
Superior Court of New Jersey, Hudson County, Chancery Division,
USA has passed an order in favour of the appellant for custody and
for return of the minor child. Later, the Court granted legal and
temporary custody of the child to the appellant. The appellant was
aggrieved by the following two conditions imposed by the High
Court while allowing the child to take back to USA. The conditions
were as follows:
“(a) That the minor child shall be repatriated only after a
certificate being issued by the Officer of the rank of
District Health Office of Bengaluru in certifying that this
Country is free of COVID - 19 pandemic and it is safe for
the travel of minor child to USA;
(b) Simultaneously the petitioner herein shall also
secure a certificate from the concerned Medical
authority at USA in certifying that the condition in USA,
particularly in the region where the petitioner is residing
is congenial for shifting the residence of minor child –
Master Adhrit Bhattacharya in compliance of the order
passed by the Court of New Jersey;”
100. This Court examined the issue having regard to parens patriae
having jurisdiction of this Court not restricted to the two conditions
imposed. This Court held that the mother has not shown any
particular inclination to retain the child in India. The Court came to
the conclusion that the welfare of the child will be best served in
21 Civil Appeal No. 3284 of 2020 decided on 23.9.2020
66
US as the child was born in US and was citizen of US by birth. The
father has taken the responsibility for shared parenting when the
child was in US. It was further held that the child was remained in
India for a short period and it would not be contrary to his interest
to allow the father to take him back.
101. I find that the said judgment is of no help to the arguments raised
by Mr. Mehta. In the present case, the child was born in India. The
child is a citizen of both the countries on account of dual
citizenship of Kenya and England of Perry. The child has stayed in
India as per the arrangements arrived at between the parties at
least till 26.4.2012. Thereafter, Perry has been granted visitation
rights which he has availed. The report of the Counsellor, the
Mediator and the order of the High Court show that the child is
equally comfortable with both the parents.
102. This 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
67
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.
103. It was argued that, on 28.9.2020, when the hearing of the present
appeal was deferred for 30.9.2020, a day in between i.e. on
29.9.2020, Perry had obtained a certificate from the Office of the
President of Kenya, Ministry of Interior and Coordination of National
Government. The certificate was that Perry continues to be very
popular with all the people of Solai and there is absolutely no
threat at all to the family. The influence which Perry exercises in
Kenya is made out from the said certificate which was produced in
a day’s time after the hearing closed on 28.9.2020 and the
remaining arguments were to be heard on 30.9.2020. Such good
character certificate is not really relevant in the proceedings
pending before the Court regarding cases of manslaughter against
him. Considering such influence that Perry has in Kenya, Smriti will
not be able to face Perry and his family in any litigation whatsoever
in the event Perry choses to defy the orders of the Court. Smriti is
categorical, which I have no reason to doubt that she will not be in
position to take course to her legal remedies in Kenya on account
of logistic issues as well as the financial and political power of Perry
and his family. The Courts in India will not have jurisdiction over
68
Perry and the Child, both being Citizens of Kenya and United
Kingdom, once they are out from the territorial limits of India. Any
remedy in Kenya or United Kingdom is not an easy solution for
Smriti. There is nothing on record to show how the orders of this
Court can be enforced by the Kenyan Courts in the event Perry
refuses to comply with the directions of this Court at a subsequent
stage.
104. Further, Mr. Mehta relied upon judgments of this Court reported as
Elizabeth Dinshaw (Mrs) v. Arvand M. Dinshaw & Anr.22,
Vivek Singh v. Romani Singh23 and Kalpana Mehta & Ors. v.
Union of India & Ors.24 in support of his arguments that the
order passed by High Court does not warrant any interference.
105. In Elizabeth Dinshaw’s case, the appellant (mother) was a
citizen of the United States of America, whereas the respondent
(father) was an Indian. The parties married in a State of Michigan.
The Michigan Court passed an order at the instance of the mother
dissolving the marriage and also giving custody and control of the
minor child of the parties until he reaches the age of 18 years or
until the further orders of that Court. The father was given
visitation rights. In violation of the visitation rights, the father
picked up the child from the school and secretly left the United
States of America for India after selling his immovable property.
Since there was a violation of the order passed by the Michigan
Court, the mother filed a writ of Habeas Corpus in India. This Court
22 (1987) 1 SCC 42
23 (2017) 3 SCC 231
24 (2018) 7 SCC 1
69
ordered that it will be in the best interests and welfare of the child
that he should go back to the United States of America and
continue his education under the custody and guardianship of the
mother to whom the custody and guardianship is entrusted by the
competent court in that country.
106. As mentioned earlier, the cases wherein, the foreign courts have
passed an order of visitation rights or custody stand on different
footing as the present is a case where there is no proceeding
before any other Court other than the Family Court, Delhi.
Therefore, the said judgment does not provide any assistance to
the arguments raised.
107. In Vivek Singh’s case, the mother has invoked the jurisdiction
under the Act for the custody and appointment of the guardian of
the minor daughter. The Principal Judge, Family Court found that
the father is a fit person to retain the custody of the child and
therefore dismissed the petition. The High Court allowed the
appeal and handed over the custody of the child to the mother,
inter alia, for the reason that the girl child was less than five years
of age at the relevant time, and the mother was better suited to
take care of the child. The custody of the child continued with the
father, during the pendency of the appeal, in view of the interim
order passed by the High Court. However, visitation rights were
granted to the mother by way of an interim arrangement. This
Court held as under:
“13. Second justification behind the “welfare” principle
is the public interest that stand served with the optimal
70
growth of the children. It is well recognised that children
are the supreme asset of the nation. Rightful place of
the child in the sizeable fabric has been recognised in
many international covenants, which are adopted in this
country as well. Child-centric human rights
jurisprudence that has been evolved over a period of
time is founded on the principle that public good
demands proper growth of the child, who are the future
of the nation. …
xx xx xx
15. It hardly needs to be emphasised that a proper
education encompassing skill development, recreation
and cultural activities has a positive impact on the child.
The children are the most important human resources
whose development has a direct impact on the
development of the nation, for the child of today with
suitable health, sound education and constructive
environment is the productive key member of the
society. The present of the child links to the future of the
nation, and while the children are the treasures of their
parents, they are the assets who will be responsible for
governing the nation. The tools of education,
environment, skill and health shape the child thereby
moulding the nation with the child equipped to play his
part in the different spheres aiding the public and
contributing to economic progression. The growth and
advancement of the child with the personal interest is
accompanied by a significant public interest, which
arises because of the crucial role they play in nation
building.”
108. This Court found that though the child is staying with the father
since she was 21 months old, but the father has not said anything
about the positive traits of the mother. The matrimonial discord
between the two parties would have been understood by the child,
as given by the father. Psychologists termed it as “The Parental
Alienation Syndrome”. This Court has granted custody of the child
to the mother for at least one year so that level playing field is
granted to both the parents. However, in the present case, the
report of the Child Counsellor and/or the Mediator as well as the
order of the Court do not suggest that there is any “Parental
Alienation Syndrome” against Perry.
109. In the present case, the child has grown up in India in the last 11
years. At this age, the child would be exposed to physical and
psychological harm, if he is shifted to Kenya amongst fellow
students and teachers but without any friends. He would be taken
care of by nannies, maids with libera pampering by the
grandparents and the father. Therefore, I do not find any merit in
the arguments raised by Mr. Mehta.
110. The High Court vide a separate short order dated 25.2.2020 gave
visitation right to Smriti to talk to the child over audio calls/video
calls for at least 10 minutes every day at a mutually agreed time
which is least disruptive to the schooling and other activities of the
child. It was also ordered that Smriti shall be entitled to freely
exchange e-mails, letters and other correspondences with the child
without any hinderance by Perry or his family. Smriti was given
right to visit the child during summer and winter vacations on the
dates to be mutually agreed upon but she shall not be entitled to
take the child out of Nairobi, Kenya. Perry was to bear the cost of
her return air tickets for travel from India once a year and
accommodation for seven days. Perry was also directed to file an
undertaking before the High Court once the order has attained
finality that the order of the Family Court and the directions given
72
by the High Court would be complied with. It is an illusory order
not capable of enforcement in any manner, in the event Perry
refuses to comply with the order. I do not think that this Court
should pass an order which leads to irreversible situation.
111. I find that the order of the High Court granting visitation rights for
one week is a farce. Perry has been coming to India quite
frequently and has unsupervised visitation rights over the child as
well. Therefore, instead, it will be in the interest of justice, if Perry
is given unsupervised visitation rights in India or abroad for a
month during summer or winter holidays either in parts or
consecutively. The travel documents of the child will be retained
by Smriti so that child is not removed from the jurisdiction of this
Court, if the Child is with Perry in India.
112. In the event Perry decides to Holiday in any other country than
India, Perry shall make arrangements for the travelling and stay of
Smriti on the agreed destination. The travel documents of the
child shall be kept in safe custody in Indian Embassy or in the
event, Indian Embassy or its Consulate Office is not available, with
the local Police which can be taken back only at the time of
travelling back of Child to India.
113. In view of the above, the appeal is allowed. The orders passed by
the Family Court and the High Court are set aside with grant of
visitation rights to Perry. However, liberty is given to the parties to
seek further orders, as may be required from time to time, from the
Family Court, New Delhi.
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
OCTOBER 28, 2020.
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