Supreme Court directs CBI to bring back child from Kenya after father fraudulently obtained custody

The Supreme Court on Thursday directed the Central Bureau of Investigation (CBI) to bring back a child from his father’s “fraudulently obtained” custody in Kenya to his mother in India (Smriti Madan Kansagra v. Perry Kansagra)..The Bench of Justices UU Lalit, Hemant Gupta and Ajay Rastogi passed the order in a case where the mother of the child challenged the custody order granted to the father on the ground that the latter had misrepresented facts to obtain such an order from the Court.The Bench noted that the solemn undertakings given by the father to the High Court of Kenya at Nairobi and the Supreme Court of India were flagrantly violated, and that he had also challenged the jurisdiction of the Indian courts, despite having submitted himself to the same..“Such conduct, prima facie, can certainly be said to be contumacious calling for an action in contempt jurisdiction. Moreover, the non-disclosure of material facts by Perry at the relevant junctures also shows that he approached the Indian Courts with unclean hands,” reads the judgment. .The Court has now ordered the CBI to register criminal proceedings against the father and to ensure the safe custody of the child to his mother in India. It has also directed the Union Ministry of External Affairs and the Indian Embassy in Kenya to provide all logistical support needed to ensure the custody of child back in India. A notice has also been issued to the father, who is required to show why contempt proceedings should not be initiated against him for having violated the solemn undertakings given to the top court..On October 28 last year, the apex court had granted permanent custody of an 11-year-old boy to his Indian-origin father Perry Kansagra. While doing so, the Court required the father to obtain a “mirror order” from the Kenyan court reflecting the conditions and assurances arrived at between the parents before the Supreme Court.However, it came to light that the High Court of Kenya refused to recognise the order passed by the Supreme Court of India..In December 2020, the mother approached the apex court saying that a mere registration of the Supreme Court’s judgment was not a guarantee for its enforcement. Kenya has a Foreign Judgments (Reciprocal Enforcement) Act to make provision for enforcement of judgments delivered in foreign countries..In its judgment passed today, the Court noted that while the child was presently in Kenya, he was taken there on the basis of fraudulently obtained orders from this Court."In our considered view, the Indian Courts which were the Courts of first contact and had complete jurisdiction over Aditya, must continue to exercise such power and jurisdiction to correct the wrongs which occurred as a result of fraudulent conduct on part of Perry. It may be stated here that at every juncture, welfare of Aditya was and will always continue to be the primary consideration for the Indian Courts," the top court held. .The Court thus recalled its October 28, 2020 judgment granting custody of the child to his father, as a result of which the custody was declared to be illegal and ab initio void. The proceedings pending before the District Court Saket relating to the father's plea for permanent custody of the child have also been dismissed..It was also ordered that out of the amount of ₹1 crore deposited by the father, an amount of ₹25 lakh be handed over to the wife towards legal expense incurred or required to be incurred hereafter. The rest of the money shall continue to be kept with the Registry till further orders..The parties in the case were married in 2007 and had a child in 2009. They had 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 granting 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..By a 2:1 judgment, the Court granted custody of the child to his father after the former expressed his desire to live with that latter.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."The majority of Justices UU Lalit and Indu Malhotra ordered the father to get a "mirror" order reflecting its judgment from a court in Nairobi, Kenya. Justice Hemant Gupta had passed a separate, dissenting judgment..Supreme Court grants custody of child to father in transnational guardianship case, asks for mirror order from Nairobi court.[Read Judgment]