Friday, 16 April 2021

What Is the basic concept of Mirror Order In A Child Custody Case?

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

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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.

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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

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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.

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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

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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

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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.

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(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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