Custody of a child obtained fraudulently is illegal and invalid, to be declared ab-initio void: Justice U. U. Lalit

In the case of Smriti Madan Kansagra v. Perry Kansagra (2021) C.A. 3559/ 2021, Justice U. U. Lalit of the Supreme Court heard the guardianship petition of the petitioner, the mother of a minor named Aditya Vikram Kansagra. The respondent is of Indian origin; however, his grandfather migrated to Kenya in 1935 since the family had business interests in Kenya and the United Kingdom; consequently, the respondent holds dual citizenship of Kenya and the United Kingdom. The respondent married the petitioner in New Delhi on July 29, 2007, wherein the coupled settled in Nairobi; however, the petitioner moved to India in 2009. Following the birth of their son, Aditya, the couple stayed together in New Delhi. On May 25, 2012, an ex-parte ad-interim order was passed by the Delhi High Court, wherein the respondent was restrained from removing the child from the custody of the petitioner; however, the respondent filed an application before the High Court to seek access to Aditya; consequently, the High Court permitted the respondent to meet the child under the supervision of the petitioner. The respondent filed for a guardianship petition before the District Court of Saket to admit himself as the legal guardian of the child under Section 7 of the Guardianship and Wards Act, 1890; additionally, the respondent and the petitioner submitted before the High Court that they desire to pursue their remedies in the pending guardianship proceedings before the aforementioned court whilst disposing the civil suits before the Delhi High Court.

On January 12, 2018, the Family Court passed a judgement in the aforementioned guardianship petition, wherein the legal custody of the child was given to the respondent after the fulfilment of the child’s academic year at the Delhi Public School, Mathura Road for 2017-18. Although the petitioner filed an appeal before the Delhi High Court to challenge the judgement of the Family Court, the High Court dismissed the petition by its judgement dated February 25, 2018, wherein the court affirmed the custody to the respondent. The High Court asked the respondent to grant visitation rights to the petitioner along with submitting an undertaking before the Indian Embassy in Kenya that he would submit to the jurisdiction of Indian courts. The High Court asked the respondent to do the following:

  1. The respondent shall apply for a Kenyan passport for the child.
  2. The petitioner shall be allowed to talk to the child every day for a minimum of 10 minutes over either audio calls or video calls at a mutually agreed time. The said time should not disrupt the schooling activities of the child.
  3. The respondent shall not bar the petitioner from exchanging e-mails, letters and other correspondences with the child.
  4. The respondent shall allow the petitioner to visit him in Nairobi, wherein the respondent, once a year, shall bear the expenses of the petitioner’s air travel from India to Kenya along with her seven-day accommodation in Nairobi; however, the petitioner is barred from taking the child out of Nairobi without the consent of the respondent.
  5. The petitioner shall not abuse her visitation and contact rights to brainwash the child with negative connotations about the respondent, respondent’s family and  Kenya.

The aforementioned directions of the Delhi High Court were challenged by the petitioner in the Supreme Court; however, the appeal was dismissed on October 28, 2020; however, the Supreme Court directed the respondent to get a mirror order from the respective court in Nairobi to reflect the directions of the Delhi High Court in order to protect the rights and interests of the petitioner. The Supreme Court affirmed that the primary jurisdiction exists in the area where the child had been ordinarily residing for a substantial period of time, wherein the court asked the respondent to get a mirror order from the court where the custody of the child is being shifted to act as an auxiliary order to the order passed by the court having the primary jurisdiction over the custody of the child. The Supreme Court held that the petitioner shall provide the Birth Certificate and the Transfer Certificate (from Delhi Public School) of the child within a week of filing the mirror order with the Supreme Court so as to allow the respondent to secure an admission for the child in a school in Nairobi.

The Supreme Court directed the respondent to uphold the liberty of the petitioner to engage with the child over the video-conferencing platform for no less than one hour on the weekends; however, the court added that the child shall be at the liberty to speak to the petitioner as and when he desires to do so. The respondent was directed to bear the cost of one trip in a year of one week for the petitioner and her mother to visit the child in Nairobi during the child’s vacations, wherein the costs would include the airfare and the costs of accommodation.

On October 30, 2020, the respondent filed an undertaking with the Supreme Court submitting that he would abide by and comply with all the directions contained in the judgement of the Supreme Court. The same was given by the petitioner on November 05, 2020.

On July 29, 2021, the petitioner filed the present civil suit in the Supreme Court where she claimed that the petitioner’s access to the child was allegedly being reduced slowly, wherein the petitioner’s weekly access over a video-conferencing platform was reduced from one hour to 20 minutes. The petitioner claimed the following assertions in the present case:

  • The petitioner had not met the child for the last seven months, wherein the respondent had allegedly not provided 50% of the annual vacation to the petitioner whilst obstructing the petitioner’s access rights to the child. The petitioner claims that she wrote an e-mail to the respondent on July 11, 2021, wherein she requested the respondent to let the child visit India between August 01, 2021, and August 27, 2021. The said e-mail was not responded to by the respondent; consequently, the petitioner rewrote a reminder e-mail on July 15, 2021, wherein the petitioner pointed out the judgement of the Supreme Court to the respondent.
  • The respondent was informed via an e-mail on July 16 about the impossibility of providing the aforementioned access to the petitioner. The respondent held that it would not be able to comply with the directions of the Supreme Court owing to the COVID-19 pandemic; additionally, the respondent purported that the child and he are observing a one-year mourning period owing to the death of the respondent’s father, wherein the respondent and the respondent’s family have allegedly decided to not travel anywhere for one year.
  • The petitioner wrote another e-mail on July 21 to reiterate her request to receive the child in India whilst informing the respondent about the reduced cases of COVID-19 in New Delhi; however, the respondent replied by saying that the child would be sent to New Delhi after the COVID-19 situation settles in the city.
  • On July 24, 2021, the respondent replied in an aggressive, bitter and unpleasant manner over e-mail to the petitioner.

The present application is filed by the petitioner to pray before the Supreme Court to direct the respondent to comply with the directions of the Supreme Court’s judgement dated October 28, 2020.

Mr. A. S. Chandiok, learned Senior Advocate appearing for the petitioner submitted that the petitioner had booked flights from Nairobi to New Delhi on August 13, 2021, for the child to be with the petitioner till September 01, 2021; additionally, the advocate held that the child enjoyed the status as “Overseas Citizen of India” and hence, the child could travel and stay in India for the aforementioned period, wherein the advocate added that the OCI status of the child would allow for such travel between Nairobi and India. The Supreme Court passed an order to direct the respondent to renew the OCI status of the child in the Office of the Indian Embassy at Nairobi, wherein the court ordered the said office and the respondent to process the application immediately so that the child can board a flight to New Delhi on August 18, 2021.

A hearing in the Supreme Court on August 16, 2021, revealed that neither the child was allowed by the respondent to board the aforementioned flight to New Delhi nor the respondent had approached the Indian High Commission in Nairobi to renew the child’s OCI Card Status; additionally, the respondent blocked the petitioner on Whatsapp and E-mail whilst refusing to respond to the e-mails issued by Mr. Chandiok to remind the respondent about the compliance to the orders and judgement of the Supreme Court. The Supreme Court held that the actions of the respondent had a malicious intent while impeding and obstructing the administration of justice; additionally, the court held that the actions of the respondent harm the welfare of the child whilst diluting the authority of the judgement of the Supreme Court. In a nutshell, it was revealed that the respondent had no intentions of complying with the judgement of October 28, 2020. The court held that the respondent had violated the oath to comply with the directions of the court under the undertaking given vide an affidavit of compliance given by him to the court. It is worth mentioning that the video conferencing scheduled for 14th and 15th of August had not taken place, wherein the petitioner has been blocked on all means of communication, including e-mail, since August 14 by the respondent; additionally, the respondent allegedly informed his advocates (Mr. Anunaya Mehta and Mr. P. K. Manohar) about his desire to discontinue their legal services whilst blocking all contact between the respondent and his advocates.

Owing to the aforementioned predicament, the Supreme Court ordered an ad-interim relief to the petitioner on August 17, 2021, wherein the court ordered the following:

  1. Restraining the respondent from taking any action or/ and taking any steps, or/ and initiating any proceeding/s or any action of any nature before the courts of Kenya or any other court of law which will create an impediment in the implementation of any order/ judgement passed by the Supreme Court of India in this case.
  2. Restraining the respondent from seeking any modification of the mirror order obtained from the High Court of Kenya, Family Division on November 11, 2020.
  3. Compelling the respondent to submit the Kenyan and British passport of the child to the officer authorized by the Indian High Commission in Nairobi.

Although the present advocates of the respondent have been relieved of their duties by the respondent himself, the court ordered them to continue representing the respondent. The court sent a copy of the order to the Indian Embassy in Nairobi to serve it to the respondent whilst sending another copy to the learned Solicitor General of India to take appropriate steps in the matter herein.

On August 26, 2021, the respondent filed a petition for declaring the aforementioned orders of the Supreme Court to be invalid and incapable of enforcement while getting a permanent injunction barring the petitioner from taking the child outside the jurisdiction of the High Court of Kenya. It is worth noting that the High Court of Kenya passed an order on November 09, 2020, to reflect the directions contained in the judgement of the Supreme Court on October 28, 2020, wherein the order of the High Court of Kenya was an outcome of an application moved by the respondent seeking registration of the judgement of the Supreme Court on October 30, 2020; however, the Supreme Court questioned if the order of the High Court of Kenya amounts to a mirror order. The Supreme Court observed that the application for the registration of the judgement of the Supreme Court moved by the respondent in the High Court of Kenya was sufficient to be deemed as a mirror order issued by a competent court of Kenya. It is worth noting that the order of the High Court of Kenya on May 21, 2021, declared the aforementioned judgement of the Supreme Court to be non-registrable while dismissing the registration application filed by the respondent on October 30, 2020. The said move by the High Court of Kenya was not informed by the respondent to either the petitioner or the Supreme Court. The court held that the ideal thing to do would have been to bring the child back to India.

The court observed that it was a well-planned conspiracy by the respondent to persuade the Supreme Court to pass orders of the custody of the child in the favour of the respondent, wherein the defiant and contumacious posture was adopted by the respondent to defy the orders of the Supreme Court. The court added that any fraudulent conduct on part of a party to gain the custody of a child would be a fraud on the process of parens patriae jurisdiction of the court, wherein the custody shall be eventually negated and nullified by the court of law. The learned Solicitor General of India (SGI) submitted that the Indian High Commission in Kenya would provide all logistic support to the petitioner in any action initiated by her, wherein the SGI called the custody of the child with the respondent as illegal and invalid while asking the court to initiate contempt proceedings against the respondent owing to his defiant conduct.

The three-judge divisional bench of the Supreme Court of Justice U. U. Lalit, Justice Hemant Gupta and Justice Ajay Rastogi declared the following orders in the present case:

  1. The judgement dated October 28, 2020, and the order dated December 08, 2020, are recalled.
  2. The proceedings around the Guardianship Petition moved by the respondent in the District Court of Saket for permanent custody of the child are dismissed.
  3. The custody of the child is illegal and ab initio
  4. The court shall initiate a suo motu Contempt Case against the respondent, wherein the respective notice shall be issued to the respondent via e-mail for violating the solemn undertakings given to the court.
  5. The Central Bureau of Investigation is directed to initiate criminal proceedings against the respondent whilst securing the custody of the child to the petitioner.
  6. The Ministry of External Affairs, Government of India and the Indian Embassy in Kenya shall provide all logistical assistance and support to the petitioner in securing the custody of the child.
  7. Out of Rs. 1 crore deposited by the respondent in the Supreme Court, an amount of Rs. 25 lakhs is to be handed over to the petitioner towards the legal expense incurred/ required to be incurred hereafter by the petitioner.

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