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In a matter concerning Inter-State custody of Child, Supreme Court today hinted at recalling order which handed over custody of minor son to the father residing in Kenya. The Court, while acknowledging subsequent developments, prima-facie remarked that the respondent is in Contempt of Court’s order and is deliberately acting against the same.

A Division Bench of Justice UU Lalit and Justice Ajay Rastogi, while hearing the matter today, passed directions to the registry, for seeking appropriate instructions from the Hon’ble CJI to list the matter before a 3-Judge bench, comprising Justice Hemant Gupta. It was considered appropriate to do so as the judgment in the matter was passed in the ratio 2:1 by a bench of Justice Indu Malhotra, Justice UU Lalit and Justice Hemant Gupta (dissenting).

“The man has led this Court up the garden path by saying that yes the Orders will be complied,” the bench while hearing the matter, said.

By order dated October 28, 2020, the Top Court directed the applicant mother to hand over the custody of Aditya Kansagra to respondent father upon production of a Mirror Order by the Kenyan Court.

It was informed that due to certain developments, the mirror order upon which the custody was given, stands differed.

Submissions were made by Learned SGI Mr Mehta, upon Court’s instructions for assistance.

Senior Counsel Mr. Mukul Rohatgi and Sonia Mathur appeared for the applicant wife.

“This is a case of International kidnapping. I would suggest CBI should be brought in and also Red Corner notice be issued against the respondent,” Mr. Rohatgi submitted.

Ms. Mathur informed the Court that both, the son and the father, possessed dual citizenship – of Kenya and the UK.

Enumerating the prayer, Sr. Adv. Mukul Rohatgi added four points –

(1) Recall of judgment dated October 28, 2020 and the subsequent order of December 8, 2020;

(2) Impleading CBI and issuing directions for registering a case against the respondent;

(3) Issue Criminal Contempt;

(4) Explore what can be done with the fact that the respondent also holds a citizenship of the UK.

“We don't have any treaty by which we can enforce orders of this Court. Technically, he can take this plea that he is not served as he is a Kenyan Citizen. The impression of the Foreign Secretary and also the Embassy is that he is deliberately avoiding,” SGI Mr. Mehta informed the Court.

The matter is expected to be heard next on Friday.

Background

The Top Court heard and disposed appeals arising out of Guardianship Petition filed by the Respondent-­father under Section 7, 8, 10 and 11 of the Guardian and Wards Act, 1890 for the custody of ­Aditya Vikram Kansagra, by order dated October 28, 2020.

Justice Indu Malhotra, in a judgment for herself and Justice UU Lalit, allowed custody of Child to the Father on “Welfare and Best Interest” principle, imposing the following Conditions:

1. 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 the Top Court.
2. After the mirror order is filed, Perry shall deposit a sum of Rs. 1 Crore with the Registry, which shall be kept in an interest bearing fixed deposit account (on auto-­renewal basis), for a period of two years to ensure compliance with the directions contained in the judgment.
3. Perry will apply and obtain a fresh Kenyan passport for Aditya, Smriti will provide full co­operation, and not cause any obstruction in this behalf;
4. Within a week of the mirror order being filed before the Top 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;
5. 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;
6. 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;
7. 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;
8. Smriti will not be entitled to take Aditya out of Nairobi, Kenya without the consent of Perry;
1. We direct Perry and Smriti to file Undertakings before the Top 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.

Case Title: Smriti Madan Kansagra v. Perry Kansagra