Custody of the child obtained by playing fraud on a null responsible court ab Initio: SC


The Supreme Court recalled an order granting custody of a child to a Kenyan citizen of Indian descent after finding that he defrauded the court and approached it with “unclean hands” by suppressing material facts (Smriti Madan Kansangra vs. Perry Kansangra).

The court declared its earlier order granting custody to the father who played the fraud as “illegal” and “ab initio null”.

Finding that the party defied the conditions imposed by the Court to take the child to Kenya after being granted custody, the Court ordered the CBI to initiate proceedings to obtain and give custody of the child to its mother. . The court also asked the Center and the Indian Mission in Kenya to assist the mother and ordered the registration of a suo motu contempt case against Perry Kansagra, the child’s father. The Court ordered the physical presence of Perry Kansagra before it on November 16 and asked the registry to pay Rs 25 lakh as litigation costs, out of the amount deposited earlier by him with him, to his wife.

A bench including Judges Uday Umesh Lalit, Ajay Rastogi and Hemant Gupta observed in the judgment as follows:

“It is fundamental that a party going to court should have a clear cut, especially when it comes to child custody. When the custody of a minor is the subject of a dispute between the parents or the parties concerned, the primary custody of the minor, in the parens patriae jurisdiction, rests with the court, which can then hand over custody to the person who, at the eyes of the court, would be the most suitable person.

Substantive facts

In October 2020, a bench of three Supreme Court judges ruled by a 2: 1 majority that the Indian-born father, then residing in Kenya, was entitled to custody of the child. While Judges UU Lalit and Indu Malhotra (since retired) handed custody of the son to the father, Judge Hemant Gupta dissented, asserting that the mother was entitled to custody.

The majority imposed a condition that the father should obtain a “mirror order” from the corresponding Kenyan court within two weeks to take the child to Kenya. The mother later filed an application claiming that the father had obtained custody by allegedly giving a falsified or erroneous mirror order from the High Court of Kenya. It was also alleged that he not only refused to obey instructions granting visitation or reunion rights to the mother, but also asked the Kenyan court to declare Indian jurisdiction and / or laws invalid. and / or judgments denying, violating and / or threatening to infringe the fundamental rights of the minor by judgments and orders allegedly unenforceable in relation to the minor under Article 23 (3) (d) of the Constitution of Kenya.

The Supreme Court found that at every moment Perry’s solemn undertakings to the Court had not only been blatantly violated, but that a position is now being taken to challenge the very jurisdiction of Indian courts, although he submitted to the jurisdiction of the Indian courts.

“Such conduct, prima facie, can certainly be characterized as in absentia calling for contempt legal action. Further, Perry’s non-disclosure of material facts at the relevant times also shows that he approached the Indian courts with unclean hands, “said the bench.

“These developments not only show the provocative and absent-minded posture now adopted by Perry, but at first glance support the mother’s observations made in the interim requests … There appears to be concrete material and reason to believe that it was. of a well-planned plot on Perry’s part to persuade this Court to make orders in his favor and allow him custody of the son, then to turn around and defy the orders of this Court, ”observed the magistracy in judgment.

The following instructions have been issued:

New Delhi’s Central Bureau of Investigation (CBI), through its Director, is responsible for initiating the appropriate proceedings by registering criminal proceedings against Perry and ensuring and placing the custody of Aditya in Smriti, did he declare.

The Secretary of the Ministry of Foreign Affairs, the Government of India in New Delhi and the Embassy of India in Kenya are instructed to ensure that all possible assistance and logistical support is provided to the mother to secure custody of the son, he said. Perry’s petition for guardianship in Saket District Court for permanent custody of the son and the resulting High Court proceedings are dismissed, he said.

The custody orders having been recalled, custody of the son with Perry is declared illegal and void ab initio.

Notify Perry of the reasons why no contempt proceedings are instituted against him for violating the solemn undertakings given to this Court, reportable November 16, 2021. The registry is invited to register the Suo Motu contempt case and proceed as a result, he said.

From the amount of 1 crore of rupees filed by Perry in this Court, at this point an amount of 25 lakhs of rupees will be remitted to the mother for legal costs incurred or to be incurred thereafter. The rest of the money will remain on deposit with the registry until further notice.

Case title: Smriti Madan Kansangra v. Perry kansangra

Coram: Judges Uday Umesh Lalit, Judge Hemant Gupta and Judge Ajay Rastogi

Reference: LL 2021 SC 555

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