Supreme Court grants custody of child to father in transnational guardianship case, asks for mirror order from Nairobi court

The Supreme Court, in a 2:1 judgment, granted custody of a child to the father after the 11-year-old expressed his desire to live with that latter..The Court has thus ordered the father to get a mirror order reflecting its judgment from a court in Nairobi, Kenya (Smriti Madan Kansagra v. Perry Kansagra)..The majority judgment by Justices UU Lalit and Indu Malhotra, dealing with an international family law case, notes that the 11-year-old had a "strong and deep bond with his father." Justice Hemant Gupta passed a separate, dissenting judgment..The parties in the case were married in 2007 and had a child in 2009. They have been living separately since 2012. The mother, who was a practicing lawyer, is an Indian citizen, whereas the father holds dual citizenship of Kenya and United Kingdom, with businesses in both countries.The litigation began with the mother filing a suit for permanent injunction restraining the father and his parents from removing the child from her custody. During the pendency of this suit, numerous orders were passed regarding visitation rights to the father.Thereafter, the father filed a petition under Section 7 of the Guardians and Wards Act, 1860 before the Family Court at Saket in November 2012..The custody of the father over the child was upheld by the family court in 2018. On appeal, the Delhi High Court affirmed the order in February this year. This prompted the mother to approach the Supreme Court in appeal..In their judgment, Justices Lalit and Malhotra state that the primary concern before the Court was the best interest of the child, and whether the child was capable of making an intelligent preference..After the Bench interacted with the child, it found him to be deeply attached to his mother and maternal grandmother, with whom he lives. At the same time, it was noted that he 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"..The majority judgment held that 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."However, in order to safeguard the rights and interests of the mother, the Court ordered the father to obtain a mirror order from the concerned court in Nairobi reflecting the directions of this judgment to "so that the rights of visitation and temporary custody are not impaired"..Elaborating on the concept of mirror orders, the majority judgment states that such orders are important "given the large number of cases arising from transnational parental abduction in intercountry marriages." The Court held,.'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."Majority judgment of Supreme Court.The two judges further elucidate that the primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time. This court may direct the parties to obtain a “mirror order” from the court where the custody of the child is being shifted, it was noted."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.".The Court maintained that 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.However, it was clarified that judgment of the court which had exercised primary jurisdiction of the custody is not binding on the Nairobi court, and that the former judgment would only have "great persuasive value"..In addition to the direction to obtain the mirror order, the Court passed the following directions:(i) After the mirror order is filed before this Court, Perry (father) shall deposit a sum of Rs 1 Crore in the Registry, which shall be kept in an account for a period of two years to ensure compliance with the directions contained in this judgment. The amount shall be returned with interest accrued after the directions of the Court are complied with.(ii) Perry will apply and obtain a fresh Kenyan passport for Aditya (child), Smriti (mother) will provide full cooperation, and not cause any obstruction in this behalf;(iii) 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; (iv) 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;(v) 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; (vi) 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; (vii) Smriti will not be entitled to take Aditya out of Nairobi, Kenya without the consent of Perry..Dissent by Justice Hemant Gupta.Dissenting from the majority verdict, Justice Gupta stated that the custody of the child should be handed over to the mother as 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". His judgment goes on to state."In the absence of the father, the child 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."Dissenting judgment.Justice Gupta also notes that the father is facing a charge of manslaughter on 48 counts, and though he was acquitted by the first court, the High Court has set aside the order of acquittal and ordered re-trial. In this light, Justice Gupta noted,"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.".[Read judgment]