SMRITI MADAN KANSAGRA versus PERRY KANSAGRA

[2021] 10 S.C.R.

SMRITI MADAN KANSAGRA

PERRY KANSAGRA

(Miscellaneous Application No.1167 of 2021)

(Civil Appeal No.3559 of 2020)

OCTOBER 07, 2021

[UDAY UMESH LALIT, HEMANT GUPTA ANDAJAY RASTOGI, JJ.]

Guardian and Wards Act, 1890 – Custody of minor child –Obtained by fraud – Contempt of Court – Guardianship petitionfiled by father (of Indian origin) settled in Kenya for custody of theminor child before Family Court, New Delhi – Allowed – AffirmedDby High Court – Undertaking given by him to submit to thejurisdiction of Indian Courts – High Court’s order challenged bymother – Appeal dismissed by majority judgment of Supreme Courtdtd. 28.10.20 – Custody of the child handed over to the father subjectto his obtaining mirror order from the concerned court in Nairobireflecting the directions contained in the said judgment –EUndertaking filed to abide by the directions contained in the majoritydecision – Originating Summons filed by him in the High Court ofKenya at Nairobi seeking registration of the judgment dtd.28.10.20and for obtaining mirror order – Registration granted vide orderdtd.09.11.20 – Mother filed M.A seeking modification of certainFdirections issued in paragraph 20 of the majority judgment –Application disposed of vide order dtd. 08.12.20 – Undertakinggiven by the father in Supreme Court to abide by the said order –Child taken to Kenya – Vacation access denied to the mother –Father also filed petition in Kenya inter alia challenging thejurisdiction of the Indian Courts – Held: At no stage the fatherGbrought the development to the notice of Supreme Court that theSummons moved by him seeking registration of the judgmentdtd.28.10.20 was subsequently dismissed by the High Court ofKenya at Nairobi – It was only on the basis of the solemnundertakings given by him and the order dtd.09.11.20 passed byHthe High Court of Kenya at Nairobi which was projected to be

mirror order in compliance of the directions issued by this Court,that the custody of the child was directed to be handed over to him– Further, order dtd.08.12.20, made it clear that the undertakinggiven to the High Court would continue to be operative, in additionto the undertakings given to this Court – However, such undertakingswere not only flagrantly violated but stand is now taken challengingthe very jurisdiction of the Indian Courts – Orders obtained byplaying fraud upon the Court – party approaching the Courtmust come with clean hands, more so in child custody matters –Non-disclosure of material facts by the father at relevant juncturesshows that he approached the Indian Courts with unclean hands –Judgment dtd.28.10.20 and the order dtd.08.12.20 recalled –Guardianship Petition filed by the father is dismissed – Custody ofthe child with him is illegal and void ab initio – Notice for contemptissued – Further directions issued.

Guardian and Wards Act, 1890 – Parens patriae jurisdiction –Held: Wherever the custody of minor is matter of dispute, theprimary custody of the minor in parens patriae jurisdiction is withthe Court which may then hand over the custody to the person whowould be the most suitable – Any action initiated to obtain suchcustody from the Court with fraudulent conduct and design wouldbe fraud on the process of the Court.

Disposing of the miscellaneous application and connectedinterim applications, the Court

HELD: 1.1 The documents and the developments show:

(i) ‘P’ (the father) had given an unequivocal undertaking tothe High Court that he would submit to the jurisdiction of theIndian Courts. He had also given solemn undertaking to thisCourt.

(ii) In response to specific submission raised inMiscellaneous Application No.2140 of 2020 (quoted in paragraph16), it was submitted by ‘P’ that he had subjected himself to thejurisdiction of this Court. While dealing with the rival submissionsin the Order dated 8.12.2020, this Court made it clear that theundertaking given by ‘P’ to the High Court would continue to beoperative, in addition to the undertaking given to this Court.

ABC

A(iii) The Judgment dated 28.10.2020 had called upon ‘P’ toobtain ‘Mirror Order’ from the concerned Court in Nairobi toreflect the directions contained in the Judgment dated28.10.2020. Thereafter, the Order dated 9.11.2020 passed by theHigh Court of Kenya at Nairobi along with the relevant applicationmoved by ‘P’ seeking registration of the Judgment datedB28.10.2020, was filed in this Court.

(iv) There was dispute whether the registration grantedvide order dated 9.11.2020 by the High Court of Kenya at Nairobiamounted to fulfilling the requirement of “Mirror Order”. Inparagraph 10 of the Order dated 8.12.2020, this Court observedCthat the registration of the Judgment of this Court by the HighCourt of Kenya at Nairobi was sufficient compliance of thedirections to obtain “Mirror Order” issued from CompetentCourt in Kenya.

(v) The Judgment dated 28.10.2020 and the Order datedD8.12.2020 passed by this Court were thus premised on thesubmission that the Order dated 9.11.2020 passed by the HighCourt of Kenya at Nairobiwhile registering the Judgment dated28.10.2020 passed by this Court was in fact the “Mirror Order”.

(vi) It now transpires that by subsequent Order datedE21.5.2021, the High Court of Kenya at Nairobi in Paragraph 13 ofits order observed that the judgment of this Court was notregistrable and dismissed the Originating Summons dated30.10.2020 filed by ‘P’.

(vii) At no stage ‘P’ brought this development to the noticeFof this Court that the Originating Summons moved by him seekingregistration of the Judgment dated 28.10.2020 passed by thisCourt was dismissed by the High Court of Kenya at Nairobi on21.5.2021. Having submitted to the jurisdiction of the IndianCourts it was the bounden duty of ‘P’ to keep this Court appraisedGof all the developments particularly when the “Mirror Order”was the fulcrum on the basis of which this Court handed over tohim the custody of ‘A’ (the child).

(viii) This infraction gets more pronounced in the light ofthe stand taken in his Affidavit dated 5.8.2021 filed in this Court

and referred to in Paragraph 22. In that affidavit ‘P’ unequivocallystated that he had not even the remotest intention to disobey theOrder passed by this Court including the Judgment dated28.10.2020. Yet, something as basic and fundamental like theOrder dated 21.05.2021 was not brought to the notice of thisCourt.

(ix) Miscellaneous Application No.1167 of 2021 filed by ‘S’(the mother) had annexed e-mails exchanged between her and‘P’ and prayed that ‘P’ be directed to comply with directionsregarding vacation access. In response, apart from stating thathe had no intentions to disobey the orders passed by this Court,‘P’ voiced concern about sending ‘A’ to India. Being well awareof the conditions in this Country, solution was devised by thisCourt in its Order dated 11.08.2021 and certain directions tofacilitate the entry of ‘A’ into and his exit from India in safemanner were issued. Pertinently on 11.08.2021, the attention ofthis Court was not invited to the fact that the Situational Reportdated 09.08.2021 to was made or that the matter was being lookedinto by the concerned authorities in Kenya.(x) Despite clear directions issued in the Order dated11.08.2021 ‘P’ had not taken any steps to comply with the Order.As matter of fact, by the time the matter was taken up for furtherhearing on 16.08.2021, ‘P’ sought to withdraw the authorizationin favour of the counsel who were all the while representing himbefore this Court. As disclosed in I.A. 100550 of 2021, week-end Skype meetings between ‘S’ and ‘A’ were not facilitated fromthe week-end of 14.08.2021 and 15.08.2021. ‘P’ also blocked allmeans of communications with ‘S’. Though in law the advocateswho had entered appearance on behalf of ‘P’ would continue torepresent him, notice was additionally directed to be served on‘P’ through Indian embassy of Nairobi.

(xi) In the light of the defiant attitude exhibited by ‘P’ andhis refusal to abide by the Orders passed by this court, ad-interimrelief in terms of prayers (d) (e) and (f) made by ‘S’ in her I.A.No.100550 of 2021 was granted by this Court vide its order dated17.08.2021.

[2021] 10 S.C.R.

A(xii) Finally, Petition No.E301 of 2021 and – Notice ofMotion were moved on behalf of ‘P’, filed in the High Court ofKenya at Nairobi on 26.08.2021. The stand taken by ‘P’ in saidPetition and Notice of Motion is that it would be humiliating tocompel ‘A’ to take OCI Card; that wishes of ‘A’ were notascertained by this Court; that there was no valid Mirror OrderBand that the orders passed by this Court were without jurisdiction.He has prayed for declaration that there existed no valid “MirrorOrder” and in the circumstances the orders passed by this Courtare incapable of compliance and/or enforcement. [Para 34][802-A-H; 803-A-H; 804-A-E]C

1.2 These developments not only show the defiant andcontumacious posture now adopted by ‘P’ but prima facie supportthe submissions of ‘S’ made in Interim Applications referred toin paragraphs 25, 27, and 28. There appears to be concretematerial and reason to believe that it was well-plannedDconspiracy on part of ‘P’ to persuade this Court to pass orders inhis favour and allow him the custody of ‘A’ and then turn aroundand defy the Orders of this Court. It is fundamental that partyapproaching the Court must come with clean hands, more so inchild custody matters. Any fraudulent conduct based on whichthe custody of minor is obtained under the orders of the Court,Ewould negate and nullify the element of trust reposed by the Courtin the concerned person. Wherever the custody of minor is amatter of dispute between the parents or the concerned parties,the primary custody of the minor, in parens patriae jurisdiction,is with the Court which may then hand over the custody to the

Fperson who in the eyes of the Court, would be the most suitableperson. Any action initiated to obtain such custody from the Courtwith fraudulent conduct and design would be fraud on the processof the Court. [Paras 35, 36][804-F-H; 805-A-B]

1.3 Though, at every juncture solemn undertakings wereGgiven by ‘P’ to the High Court and this Court, such undertakingswere not only flagrantly violated but stand is now takenchallenging the very jurisdiction of the Indian Courts, despitehaving submitted himself to the jurisdiction of the Indian Courts.Such conduct, prime facie, can certainly be said to becontumacious calling for an action in contempt jurisdiction.H

Moreover, the non-disclosure of material facts by ‘P’ at therelevant junctures also shows that he approached the IndianCourts with unclean hands. It was only on the basis of the solemnundertakings given by ‘P’ and the order dated 09.11.2020 passedby the High Court of Kenya at Nairobi which was projected to bea “Mirror Order” in compliance of the directions issued by thisCourt, that the custody of ‘A’ was directed to be handed over to‘P’. Since the false and fraudulent representations made by ‘P’were the foundation, on the basis of which this Court waspersuaded to handover custody of ‘A’ to him, it shall be the dutyof this Court to nullify, in every way, the effect and impact of theorders which were obtained by playing fraud upon the Court. ThisCourt would therefore be well within its power and justified torecall all the orders and continue to assume jurisdiction to ensurethat the situation as it prevailed prior to the passing of the ordersby the Trial Court, the High Court and this Court, gets restored,whereafter appropriate decision can be taken in parens patriaejurisdiction. [Paras 39, 40][822-C-F]

1.4 It is true that ‘A’ is now in Kenya. But he was taken toKenya only on the basis of fraudulently obtained orders from thisCourt. The Indian Courts which were the Courts of first contactand had complete jurisdiction over ‘A’, must continue to exercisesuch power and jurisdiction to correct the wrongs which occurredas result of fraudulent conduct on part of ‘P’. It may be statedhere that at every juncture, welfare of ‘A’ was and will alwayscontinue to be the primary consideration for the Indian Courts.He was interviewed by very competent and qualified Counsellorswhose reports and assessments have been part of the record.‘A’ was also interviewed by the Trial Court, the High Court andthis Court. At no stage any mistreatment by ‘S’ was even remotelysuggested or adverted to by ‘A’. [Para 41][822-G-H; 823-A-B]

1.5 Following directions inter alia passed: -

(A) The Judgment dated 28.10.2020 and the Order dated08.12.2020 passed by this Court are recalled.

(B) The Guardianship Petition No.53 of 2012 filed by ‘P’ inthe District Court, Saket, New Delhi seeking permanent custody

Aof ‘A’ and the resultant proceedings arising therefrom includingMAT APP (F.C.) No.30 of 2018 filed in the High Court, aredismissed.

(C) The Orders granting custody having been recalled, thecustody of ‘A’ with ‘P’ is illegal and ab initio void.

(D) Issue Notice to ‘P’ as to why proceedings in contemptjurisdiction be not initiated against him for having violated thesolemn undertakings given to this Court, returnable on 16thNovember, 2021. The Registry is directed to register Suo MotuContempt Case and proceed accordingly.

(E) The Central Bureau of Investigation, New Delhi throughits Director to initiate appropriate proceedings by registeringcriminal proceedings against ‘P’ and to secure and entrust thecustody of ‘A’ to ‘S’.

(F) The Secretary, Ministry of External Affairs, GovernmentDof India, New Delhi and the Indian Embassy in Kenya to ensurethat all possible assistance and logistical support is extended to‘S’ in securing the custody of ‘A’. [Para 42][823-C-H]

S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC1: [1993] 3 Suppl. SCR 422; Indian Bank v. SatyamEFibres (India) (P) Ltd. (1996) 5 SCC 550 : [1996] 4Suppl. SCR 464; United India Insurance Co. Ltd. v.Rajendra Singh (2000) 3 SCC 581 : [2000] 2 SCR 264;Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319 :[2003] 4 Suppl. SCR 543; Hamza Haji v. State of KeralaF(2006) 7 SCC 416 : [2006] 4 Suppl. SCR 604; K.D.Sharma v. SAIL (2008) 12 SCC 481 : [2008] 10 SCR454; Meghmala v. G. Narasimha Reddy (2010) 8 SCC383: [2010] 10 SCR 47; Badami v. Bhali (2012) 11SCC 574 : [2012] 6 SCR 75 – relied on.

Case Law Reference

[1993] 3 Suppl. SCR 422[1996] 4 Suppl. SCR 464[2000] 2 SCR 264

relied onPara 37(a)relied onPara 37(b)relied onPara 37(c)

CIVIL APPELLATE JURISDICTION: Miscellaneous ApplicationNo.1167 of 2021.

Civil Appeal No. 3559 of 2020.

From the Judgment and Order dated 25.02.2020 of the High Courtof Delhi at New Delhi in MAT APP. (FC) No.30 of 2018.

Tushar Mehta, SG, Amarjit Singh Chandhiok, Ms. Sonia Mathur,Sr. Advs., B. V. Balaram Das, Prosenjeet Banerjee, Ms. Nidhi MohanParashar, Ms. Mansi Sharma, Ms. Shreya Singhal, Keshav Sehgal,Vikrant Kumar, Ms. Vidhi Jain, Anindit Mandal, Anunaya Mehta, Ms.Inderjeet Saroop, P. K. Manohar, Advs. for the appearing parties.

The Order of the Court was passed by

UDAY UMESH LALIT, J.

1. Civil Appeal No.3559 of 2020 arose from Guardianship Petitionfiled by Perry Kansagra (hereinafter referred to as ‘Perry’), father ofminor named Aditya Vikram Kansagra (hereinafter referred to as‘Aditya’), under Sections 7, 8, 10, 11 of the Act[1] before the DistrictCourt, Saket, New Delhi. Perry is person of Indian origin and Gujaratiby descent. His grandfather migrated to Kenya in 1935 and settled there.The family has business interests in Kenya and United Kingdom. Perryholds dual citizenship of Kenya as well as United Kingdom. Perry gotmarried to Smriti Madan Kansagra (hereinafter referred to as ‘Smriti’),an Indian citizen, on 29.07.2007 at New Delhi. Initially, the couple stayedat Nairobi, Kenya but Smriti returned to India in 2009. The couple wasblessed with son – Aditya on 02.12.2009 at New Delhi. Except for abrief period when the couple had gone to Kenya in 2012, Aditya alwaysstayed with Smriti in Delhi till the disposal of aforestated Civil AppealNo.3559 of 2020.

1 The Guardianship and Wards Act, 1890

[2021] 10 S.C.R.

A2. On 26.5.2012, Civil Suit (O.S.) No.1604 of 2012 was filed bySmriti against Perry and his parents in the High Court[2] seeking followingreliefs:

“(a) Pass decree of permanent injunction restraining thedefendants, their agents, representatives, servants and/ orBattorneys in perpetuity form in any manner removing the childeither from the lawful custody of the Plaintiff No.2 or removingthe child from Delhi; the jurisdiction of this Hon’ble Court oraccessing the child in his School “Toddlers Train” at Sunder Nagar,New Delhi.

(b) Pass an order directing the Airport Authority of India,CImmigration Authority of India, ‘FRRO’ to ensure compliance ofprayer ‘a’ above.

(c) Pass decree of permanent injunction restraining theDefendants, their agents, representatives, servants and/ orattorneys in perpetuity from meeting Plaintiff No.1 without theDconsent/ presence of Plaintiff No.2"

3. On 25.05.2012, an ex-parte ad-interim order was passed bythe High Court restraining Perry from removing Aditya from the custodyof his mother. In this suit, I.A. No.12429 of 2012 was filed by Perryseeking access to Aditya. Though Smriti was not averse to Perry’sEmeeting Aditya, it was submitted that the meetings be held only underher supervision. By its order dated 13.07.2012, the High Court permittedPerry to meet Aditya under the supervision of Smriti. Similar orderswere passed from time to time.

4. On 06.11.2012, Perry filed Guardianship Petition No.53 of 2012Fbefore the District Courts, Saket, New Delhi praying inter alia:“a. Declare the petitioner who is natural father of the minor childmaster Aditya Vikram Kansagra as the legal guardian underSection 7 of the Guardianship and Wards Act, 1890;

b. Grant the permanent custody of the minor child master AdityaVikram Kansagra to the Petitioner;Gc. Pending the hearing and final disposal of the Suit, the Petitionermay be allowed to take minor child master Aditya Vikram to visithis parental home in Kenya MS, 166, 167, James Gichuru Road,Lavington Green, Nairobi, Kenya;

H2 The High Court of Delhi at New Delhi

d. Pending the hearing the final disposal of the Suit, the Petitionermay be allowed to take minor child master Aditya Vikram for allholidays summers/ Diwali/ Christmas and any other holiday inIndia and abroad.”

5. During the pendency of these proceedings, Aditya was admittedto Delhi Public School, Mathura Road, New Delhi. On 31.08.2015, boththe parties submitted before the High Court that they would pursue theirremedies in the pending guardianship proceedings before the Family Courtand that the suit be disposed of. The suit was accordingly disposed of on31.08.2015.

6. By various orders the visitation schedule was modified by theFamily Court from time-to-time permitting Perry to have access to andenjoy visitation with Aditya. The interim proceedings taken up in theGuardianship Proceedings were adverted to in detail in the majoritydecision of this Court dated 28.10.2020 while disposing of Civil AppealNo.3559 of 2020.

7. By its judgment and order dated 12.01.2018, the Family Courtallowed the Guardianship Petition and granted custody of Aditya to Perrywhich was to come into effect after the end of academic session 2017-2018.

8. Smriti being aggrieved, challenged the decision of the FamilyCourt by filing Mat. App. (F.C.) No. 30 of 2018 before the High Court,which appeal was dismissed by the High Court by its judgment andorder dated 25.02.2020. The High Court affirmed the decision that thecustody of Aditya be granted to Perry. By separate order passed onthe same date, it recorded that Perry was willing to file an undertakingof his mother, holding an Indian passport to ensure compliance of theOrder of the Family Court granting visitation rights to Smriti. It alsodirected Perry to swear an undertaking before the Indian Embassy inKenya to the effect that he would submit to the jurisdiction of the IndianCourts; which undertaking would then be filed in the proceedings, intoken of his acceptance of the Order.

The High Court also passed following additional directions:

“(i) Perry shall apply for Kenyan passport for the child, if notalready done, and Smriti would co-operate in filing the application;(ii) Smriti shall be entitled to talk to the child over audio calls/video calls for at least 10 minutes everyday at mutually agreedtime which is least disruptive to the schooling and other activitiesof the child;

(iii) Smriti shall be entitled to freely exchange e-mails, letters andother correspondences with the child without any hindrance byPerry or his family;

(iv) In addition to the grant of temporary custody of the child toSmriti during summer and winter vacations on the dates to beBmutually agreed upon. Smriti may visit the child at Nairobi, Kenya.However, she shall not be entitled to take the child out of Nairobi,Kenya. Perry shall bear the cost of her return air-ticket for travelfrom India once year and accommodation for seven days;

(v) Smriti shall also file an undertaking before the Court once theCorder has attained finality that the directions of the Family Courtand the directions given by this Court shall be complied with. Theundertaking shall state that the period of visitation as stipulatedwould be strictly adhered to, and she would return the child to therespondent at the stipulated time. Further she would not abuseher visitation and contact rights to brainwash the child with negativeDcomments about the respondent, his family or Kenya.”

9. In view of the directions of the High Court, following undertakingwas sworn by Perry in Kenya and filed in the High Court:-

“I Mr. Perry Kansagra S/o Shri Mansukh Lal Patel, aged about45 years, r/o MS 167 James Gichuru Road, Lavington Green,Nairobi, Kenya do hereby solemnly affirm and undertake as under:-

1. That I am executing the present undertaking in compliance ofOrder dated 25.02.2020 passed by Hon’ble High Court of Delhiin Mat. App. (F.C.) No.30 of 2018.

2. That I undertake to honour and comply with the visitationsrights that have been granted to Mrs. Smriti Madan Kansagravide Judgment dated 12.01.2018 passed by Family Court SouthEast, Saket, Delhi in G-53/2012 and the same has been upheldvide Judgment dated 25.02.2020 passed by the Hon’ble High Courtof Delhi in MAT APP (F.C.) No.30 of 2018.

3. That I further undertake to submit to the jurisdiction of theIndian Courts.

DEPONENT”

10. The aforestated decision of the High Court was challengedby Smriti by filing Civil Appeal No.3559 of 2020 in this Court, whichappeal was dismissed on 28.10.2020. While affirming the findings,following observations were made in the majority decision of this Court:–

“(a) To safeguard the rights and interest of Smriti, we haveconsidered it necessary to direct Perry to obtain mirror orderfrom the concerned court in Nairobi, which would reflect thedirections contained in this Judgement.

(b) Given the large number of cases arising from transnationalparental abduction in inter-country marriages, the English courtshave issued protective measures which take the form ofundertakings, mirror orders, and safe harbour orders, since thereis no accepted international mechanism to achieve protectivemeasures. Such orders are passed to safeguard the interest ofthe child who is in transit from one jurisdiction to another. Thecourts have found mirror orders to be the most effective way ofachieving protective measures.

(c) The primary jurisdiction is exercised by the court where thechild has been ordinarily residing for substantial period of time,and has conducted an elaborate enquiry on the issue of custody.The court may direct the parties to obtain “mirror order” fromthe court where the custody of the child is being shifted. Such anorder is ancillary or auxiliary in character, and supportive of theorder passed by the court which has exercised primary jurisdictionover the custody of the child. In International Family Law, it isnecessary that jurisdiction is exercised by only one court at atime. It would avoid situation where conflicting orders may bepassed by courts in two different jurisdictions on the same issueof custody of the minor child. These orders are passed keeping inmind the principle of comity of courts and public policy. The objectof mirror order is to safeguard the interest of the minor child intransit from one jurisdiction to another, and to ensure that bothparents are equally bound in each State.The mirror order is passed to ensure that the courts of the countrywhere the child is being shifted are aware of the arrangementswhich were made in the country where he had ordinarily beenresiding. Such an order would also safeguard the interest of theparent who is losing custody, so that the rights of visitation andtemporary custody are not impaired.”

Hemant Gupta, J., authored dissenting view with followingobservations:-

“102. The issue is to find out the welfare of the Child in parenspatriae jurisdiction of this Court. The question required to beexamined is whether this Court should permit the child to be outBof its supervisory jurisdiction so as to be mute spectator to thepossibility of defiance of the order of this Court. I am of the opinionthat welfare of the Child would be to stay in India with his motherwho has brought up the child for last 11 years. The Child isintelligent but not mature enough to take decisions by himself.Even, the law recognizes that the child of less than 18 years isCincapable of representing himself. Therefore, any opinion of thechild is not determinative of the final custody of the child but thisCourt as parens patriae is duty bound to assess the entire situationto return finding whether the welfare of the child will be withthe mother with visitation rights to the father or custody with theDfather with visitation rights to the mother. If the child is moved toKenya, there is no way that this Court can enforce the orders toget the child back to India, even if it so desires.”

11. In the light of its discussion, the directions issued in paragraphs20 to 22 in the majority decision of this Court were:-E“(a) We direct Perry Kansagra to obtain mirror order from theconcerned court in Nairobi to reflect the directions contained inthis judgement, within period of 2 weeks from the date of thisjudgment. copy of the Order passed by the court in Nairobimust be filed before this Court;

F(b) After the mirror order is filed before this Court, Perry shalldeposit sum of INR 1 Crore in the Registry of this Court, whichshall be kept in an interest-bearing fixed deposit account (on auto-renewal basis), for period of two years to ensure compliancewith the directions contained in this judgment.

If this Court is satisfied that Perry has discharged all his obligationsGin terms of the aforesaid directions of this Court, the aforesaidamount shall be returned with interest accrued, thereon to therespondent;

(c) Perry will apply and obtain fresh Kenyan passport for Aditya,Smriti will provide full co-operation, and not cause any obstructionHin this behalf;

(d) Within week of the mirror order being filed before this Court,Smriti shall provide the Birth Certificate and the TransferCertificate from Delhi Public School, to enable Perry to secureadmission of Aditya to School in Kenya;

(e) Smriti will be at liberty to engage with Aditya on suitablevideo-conferencing platform for one hour over the weekends;further, Aditya is liberty to speak to his mother as and when hedesires to do so;

(f) Smriti would be provided with access and visitation rights for50% once in year during the annual vacations of Aditya, eitherin New Delhi or Kenya, wherever she likes, after due intimationto Perry;

(g) Perry will bear the cost of one trip in year for period of oneweek to Smriti and her mother to visit Aditya in Kenya during hisvacations. The costs will cover the air fare and expenses for stayin Kenya;

(h) Smriti will not be entitled to take Aditya out of Nairobi, Kenyawithout the consent of Perry;

(i) We direct Perry and Smriti to file Undertakings before thisCourt, stating that they would abide and comply with the directionspassed by this Court without demur, within period of one weekfrom the date of this judgement.

21. As an interim measure, we direct that till such time that Perryis granted full custody of the child, he will be entitled tounsupervised visitation with overnight access during weekendswhen he visits India, so that the studies of Aditya are not disturbed.Perry and his parents would be required to deposit their passportsbefore the Registrar of this Court during such period of visitation.After the visitation is over, the passports shall be returned to themforthwith.

22. This appeal shall be listed before the Court after period offour weeks to ensure compliance with the aforesaid directions,and on being satisfied that all the afore-stated directions are dulycomplied with, the custody of Aditya Vikram Kansagra shall behanded over by his mother Smriti Kansagra to the father PerryKansagra.”

A12. Direction (C) issued in paragraph 20 of the majority decisionwas thereafter modified by order dated 03.11.2020 passed in M.A.No.2066 of 2020 moved by Perry. By said order, Perry was permitted totake Aditya to Kenya on the strength of one-time travel documentissued by the High Commission of Kenya in New Delhi and to apply forand obtain Kenyan Passport after arrival of Aditya in Kenya.B

13. On 30.10.2020, Perry filed an undertaking in this Courtsubmitting that he would abide by and comply with all the directionscontained in the majority decision dated 28.10.2020, without any demur,and in letter and spirit. The undertaking which was sworn in Kenyawas: -C

“I am Perry Kansagra s/o Shri Mansukh Lal Patel, aged about 45years, r/o MS 167 James Gichuru Road, Lavington Green, Nairobi,do hereby solemnly affirm and stated on oath as under: -

1.That I am the respondent in the captioned matter and Iam conversant with the facts and circumstances of theDpresent case and competent to swear the presentaffidavit.

2.I am executing the present undertaking in complianceof Judgment dated 28.10.2020 passed in the aforesaidmatter.

3. I truly and faithfully undertake to abide and comply withall the directions as mentioned in the Judgment dated28.10.2020 passed by this Hon’ble Court without demurand in its letter and spirit.”

FSimilarly, Smriti also filed an undertaking on 05.11.2020 undertakingto abide by and comply with the directions of this Court without anydemur.

14. On 30.10.2020, Perry moved an Originating Summons in theHigh Court of Kenya at Nairobi seeking registration of the Judgmentdated 28.10.2020 passed by this Court and for obtaining ‘Mirror Order’.GThe title of the application and the opening recitals were:-

“REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBIFAMILY DIVISION MISCELLANEOUS APPLICATION

NO. OF 2020

IN THE MATTER OF FOREIGN JUDGMENTS(RECIPROCAL ENFORCEMENT)

ACT, CAP 43 OF THE LAWS OF KENYA

IN THE MATTER OF AN ORDER OF THE SUPREMECOURT OF INDIA

ISSUED ON 28th OCTOBER 2020

IN THE MATTER OF AVK (A CHILD)

AND IN THE MATTER OF SECTION 4, 22, 113 OF THECHILDREN ACT AND

ARTICLE 53 OF THE CONSTITUTION OF KENYA 2010

FOR AN APPLICATION FOR MIRROR ORDERS

PERRY KANSAGRA—————EX PARTE APPLICANT

Originating Summons

[Under Sections 3, 4, 5 & 6 of the Foreign Judgments (ReciprocalEnforcement) Sections 4, 22, 113 of the Children Act and Articles53 of The Constitution of Kenya 2010, the Inherent Powers ofthe Court and all Enabling Provisions of the Law].

LET ALL PARTIES CONCERNED attend the HonourableJudge in Chambers for the hearing of this application which isissued on the application of PERRY KANSAGRA of Post OfficeBox Number 76817 – 00620, Nairobi for orders:

1. THAT this application be certified as urgent, deserving priorityhearing and directions ex parte in the first instance.

2. THAT the judgment delivered by the Supreme Court of Indiain Supreme Court Civil Appeal No.3559 of 2020 – SmritiMadan Kansagra v. Perry Kansagra be registered.

3. THAT further, or other orders, be granted so as to give effectto the orders of and in compliance with judgment of the SupremeCourt of India made on 28th October 2020.”

After referring to the directions issued by this Court, the applicationstated :-

A“7. That the application is brought in the best interest of the childand to facilitate his return to Kenya to be reunited with his fatherand family.

8. That the orders sought are necessary to facilitate the taking ofsuch other steps and proceedings as ordered by the Supreme CourtBin India….”

15. The Order dated 09.11.2020 passed by the High Court ofKenya at Nairobi on the aforestated application was:-

“REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

HCFOS/EO31 OF 2020

IN THE MATTER OF FOREIGN JUDGMENTS

(RECIPROCAL ENFORCEMENT) ACT, CAP, 43

OF THE LAWS OF KENYA

IN THE MATTER OF AN ORDER OF THE SUPREME

COURT OF INDIA

ISSUED ON 28th OCTOBER 2020

AND

IN THE MATTER OF ADITYA VIKRAM KANSAGRA (ACHILD)

AND IN THE MATTER OF SECTION 4, 22, 113,

OF THE CHILDREN ACT, AND

ARTICLE 53 OF THE CONSTITUTION OF KENYA, 2010

FOR AN APPLICATION FOR MIRROR ORDERS

PERRY KANSAGRA ————————————Exparte

APPLICANT

IN COURT ON 9th DAY OF NOVEMBER 2020

BEFORE HON. MR. JUSTICE A.O. MUCHELULE

THIS MATTER coming up for hearing UNDERCERTIFICATE OF URGENCYbefore Hon. Justice A.O.Muchelule; AND UPON READINGthe application;

IT IS HEREBY ORDERED;

1.THATapplication certified urgent.

2. THAT the order of the Supreme Court of India issued on28.10.2020 is hereby registered as prayed.

GIVEN under my hand and the seal of this Court this 9[th] dayof November, 2020.

ISSUED at Nairobi this 11th day of November 2020

I CERTIFY THIS IS TRUE COPY OF THE ORIGINAL

DEPUTY REGISTRAR DATED 11/11/2020

HIGH COURT OF KENYA, NAIROBI ____”

16. Smriti, however, filed Miscellaneous Application No.2140 of2020 seeking modification of certain directions issued by this Court inparagraph 20 of the majority decision, which application was disposedof by this Court by its Order dated 08.12.2020. Some of the submissionsraised by Smriti may be set out here for facility:-

“d. Perry’s undertaking dated 02.03.2020 [pg. 30 of Application]that he shall continue to submit to the jurisdiction of the IndianCourts, duly filed by Perry in the High Court and relied upon byhim in Supreme Court, kindly be accepted.

e. Perry’s mother’s undertaking dated 27.02.2020 [pg. 33 ofApplication] given before the High Court and duly relied upon inSupreme Court, may kindly be accepted.”

16.1 The aforestated submissions were dealt with by this Court inits Order dated 08.12.2020 as under: -

“(iii) With regard to the issue at placitum ‘d’, the learned counselfor the respondent has accepted that having given an undertakingto this Court, the respondent has subjected himself to the jurisdictionof this Court. Mr. Shyam Divan, learned Senior Advocate for theappellant however relied upon paragraph 3 of the undertakingdated 02.03.2020 given to the High Court to emphasize the absence

Aof such clear stipulation in the present undertaking regardingsubmission to the jurisdiction of the Indian Courts. Though, weaccept the submission made by the learned counsel for therespondent, it is hereby clarified that paragraph 3 of the undertakinggiven by respondent dated 02.03.2020 to the High Court shallcontinue to be operative, in addition to the undertaking given toBthis Court.

(iv) In the context of the matter mentioned against placitum ‘e’, itmust be stated that this Court did not deem it appropriate to bindthe paternal grandmother of Aditya, because of the various otherdirections issued in the Judgment, including the one requiring theCrespondent to obtain Mirror Order. The High Court had notinsisted upon furnishing of any Mirror Order and, therefore, thedirection to have the affidavit of the grandmother who is an Indiancitizen, was issued. However, the direction to obtain Mirror Orderwas taken to be sufficient security by this Court, to take care ofDany apprehension that the respondent may not fulfil the obligationscast upon him by the Judgment.”

16.2. With regard to the issue regarding mirror order, the rivalsubmissions as well as the findings of this Court were as under:-

“8. We now turn to the issue regarding Mirror Order. It is submittedEby Mr. Divan, learned Senior Advocate for the appellant that whatis contemplated by the directions issued in the Judgment is bindingand valid Mirror Order. In his submission, the Mirror Order must,in all respects, be one which is fully enforceable, and on whichcomplete reliance can be placed by this Court. He has invited ourattention to the Foreign Judgments (Reciprocal Enforcement) Act,FCAP, 43 enacted by the Parliament of Kenya (“the Act”, for short)to make provisions for the enforcement of judgments given incountries outside Kenya which accord reciprocal treatment tojudgments given in Kenya and for other purposes in connectiontherewith.

GThe submissions of Mr. Divan on this issue are:-

A)India and Kenya are not reciprocating countries and, assuch, the provisions of the Act will not be applicable.

B)In any case, by virtue of Section 3(3) of the Act, nothing inthe Act will apply to proceedings in connection with “theHcustody or guardianship of children”.

C)In terms of Section 6(1) of the Act, the registration of ajudgment rendered by foreign court can be granted, if“the High Court is satisfied as to the proof of matters requiredby this Act and any rules of court”.

D)Since the Act itself will not apply to proceedings in connectionwith the custody or guardianship of children, the registrationof the Judgment under the Act will be without anyconsequence in law.

E) Any submission about validity of registration can be takenby judgment debtor in terms of Section 10 of the Act andhave the registration set aside.

It is thus submitted that mere registration of the Judgment willnot make it enforceable. Reliance is placed on legal opiniongiven by Ms. Rubeena Dar practising lawyer in Kenya. copyof Mirror Order dated 14.05.2018 issued by Superior Court, J.D.of Stamford, Norwalk pursuant to the directions of the High Courtof Delhi in Dr. Navtej Singh vs. State of NCT and another[3] isalso relied upon to submit what Mirror Order must normallycontemplate and provide. The relevant portion of said Order dated14.05.2018 reads:-

“1. Plaintiff’s Motion for Order is granted on the applicationto Show Cause, docketed at #114.00.

2. The prior orders for sole physical and legal custody infavour of the Plaintiff shall be recalled.

3. The prior orders remain in place that Jasmeet Kaur is toreturn immediately to Connecticut with the minor children.

4. The minor children shall remain in the custody of JasmeetKaur, and the Plaintiff shall have reasonable interim visitationwith the minor children as agreed or Court ordered uponthe minor children’s return with Jasmeet Kaur toConnecticut, until further custody orders are determinedby the Connecticut Superior Court after granting adequateopportunity of hearing to both the parties.

3 (2018) SCC OnLine Del 75-11 – which was affirmed by this Court in (2019) 17SCALE 672

5. That the Affidavit of Undertaking of the Plaintiff,confirming how he has conformed his conduct to the Orderof the High Court of Delhi at New Delhi on March 6, 2018,submitted as Exhibit to the Motion for Order (Tab 2 ofExhibit 2) is hereby approved and so ordered.

6. That Attorney William Taylor is hereby appointed asescrow agent pursuant to Exhibit to the Motion for Order

(Tab 3 of Exhibit 2).”

9. On the other hand, Mr. Anunaya Mehta, learned Advocate forthe respondent has relied upon the provisions of the JudicatureAct of Kenya which empower the High Court of Kenya to exercisejurisdiction in accordance with common law principles and doctrineof equity and upon Article 2(5) of the Constitution of Kenya, 2010,which recognizes the general rules of international law as formingpart of laws of Kenya. The opinion given by M/s. GMC Advocatesis also relied upon, the relevant portion of which reads as under:-

“Reference may additionally be had to the provisions ofSections 4, 22 and 113 of the Children’s Act 2010 andArticle 53 of the Constitution of Kenya 2010 whichprovide that the best interest and welfare of the child isparamount which would justify grant of orders in the natureof mirror orders.

Mirror Order is issued by another Court which containsthe same terms as those that are contained in the Orderbeing mirrored. It is the practice in Courts in Kenya that aMirror Order is granted by registration of entire Judgmentof the Foreign Court by the Court in Kenya. This is done soas to avoid any variation in context, form or substance. Theregistration of the Foreign Judgment by the Court of Kenyais itself the Mirror Order. Nothing further is required.

Reference may be had to Judgment In Re Matter of I WP (Infant) [2013] eKLR) where in matter concerning ajudgment passed by foreign court in relation to custody andguardianship of minor, the High Court of Kenya at Nairobihad granted mirror order.

Having regard to the law applicable in Kenya, the applicationfor grant of mirror order in accordance with the directions

contained in the judgment dated 28-10-2020 passed bysupreme Court of India in case titled as “Smriti MadanKansagra vs. Perry Kansagra” [CA No. 3559/2020] wasmade on 09-11-2020 before the High Court of Kenya atNairobi. The application was an ExParte application, as theorders sought were noncontentious in nature, given the factthat the matter was extensively and conclusively dealt withby the Supreme Court of India and only Mirror Order wassought from High Court of Kenya at Nairobi.

The application for grant of mirror order was allowed bythe High Court and the judgment dated 28-10-2020 passedby Supreme Court of India in case titled as “Smriti MadanKansagra vs. Perry Kansagra” [CA No.3559/2020] wasregistered in its entirety by order dated 09-11-2020.

Accordingly, the order dated 09-11-2020 issued by HighCourt of Kenya at Nairobi in case bearing No. HCFOS/E031 of 2020 whereby the judgment dated 28-10- 2020passed by Hon’ble Supreme Court of India in case titled as“Smriti Madan Kansagra vs. Perry Kansagra” [CA No.3559/2020] has been registered is mirror order incompliance with the said judgment.”

10. Having considered the rival submissions, in our view, the Orderpassed by the High Court of Kenya respectfully deserves andmust be shown due deference. Nothing turns on the form andformat of the Order, so long as the High Court of Kenya wasapprised of all the facts, and the context in which it was approached,for compliance of the directions passed by this Court in theJudgment. Since the registration of the Judgment passed by thisCourt has been done under the orders of the High Court of Kenya,we accept the submissions made by the respondent. In our view,the registration of the Judgment is sufficient compliance of thedirection to obtain Mirror Order issued from competent courtin Kenya. The fact that the registration was given at the instanceof the respondent and the unconditional undertaking given by therespondent to this Court, are sufficient compliance of the directionsissued by this Court.”

16.3. In the end, following directions were issued by this Court inits Order dated 08.12.2020:-

A“A)Except for direction issued earlier in paragraph 20 of thisOrder, and matters accepted by the learned counsel for therespondent, no orders are called for in respect of any of thedirections sought for by the appellant.

B)All the directions issued in paragraph 20 of the JudgmentBhold good, with the addition of the one issued in paragraph20 of this Order.

C)A further affidavit shall be filed by the respondent withinthree days of this Order, that he shall abide by this Orderand the additional direction issued in paragraph 20 of thisCOrder.

D)The respondent is not required to obtain any fresh MirrorOrder in respect of the aforesaid additional direction, beforeAditya is taken to Kenya, and it shall be sufficient if anappropriate application to have this Order registered, in theDsame manner as the Judgment was registered, is preferredwithin two weeks of Aditya reaching Kenya, and the copyof such registration is thereafter filed in this Court at theearliest.

E)After filing of the further affidavit as stated above, theErespondent shall be at liberty to take Aditya to Kenya asdirected earlier in the Judgment.”

17. Perry filed an undertaking dated 09.12.2020 in this Court thathe would abide by the Order dated 08.12.2020. The undertaking was asunder: -F

“I Mr. Perry Kansagra s/o Shri Mansukh Lal Patel, aged about45 years, r/o 167 James Gichuru Road, Lavington Green, Nairobi,Kenya presently in Delhi, India do hereby solemnly affirm andstate on oath as under: -

G1. That I am the respondent in the captioned matter and I amconversant with the facts and circumstances of the present caseand competent to swear the present affidavit.

2. I am executing the present affidavit in compliance of thedirections in paragraph 21(C) of the Order dated 08.12.2020 passedin the aforesaid matter.H

3. I state that I shall truly and faithfully abide by the Order dated08.12.202 and additional direction issued in paragraph 20 of theOrder dated 08.12.2020 passed by this Hon’ble Court.”

18. In the aforestated circumstances, in terms of the orders issuedby this Court, custody of Aditya was handed over to Perry and Adityawas taken by Perry to Kenya in December 2020.

19. On 29.07.2021, Miscellaneous Application No.1167 of 2021was filed by Smriti in Civil Appeal No.3559 of 2020 with followingassertions:-

“5. This Hon’ble Court had directed that the Appellant also begranted additional access to Aditya, i.e. two trips of one weekeach to Kenya to meet Aditya. Accordingly, Appellant soughtadditional access to the child during the Easter break falling inApril, 2021 in terms of para 21 of the judgement dated 28.10.2020.The Appellant requested the Respondent to facilitate access andvisitation in Kenya for week in April during Aditya’s EasterHolidays. However, the said access could not take place. Copyof the email dated 30.03.2021issued by the Respondent cancellingthe visitation during easter is annexed hereto and marked asAnnexure P-3 (pg. no. 161 to 162).

6. Though the custody of Aditya was given to the Respondentfather vide the judgment dated 28.10.2020, the Appellant’s/motherwas granted visitation and access rights to the child. This Hon’bleCourt ensured that both parents were equally involved in thedevelopment of Aditya and protected the Appellant’s rights suchas including her in the school records and having access to Aditya’sschool and participation, when possible, in school events etc. TheRespondent is not complying with the orders passed by this Hon’bleCourt. The Appellant-mother’s access and visitation is slowly beingreduced. The Appellant’s weekly access over Skype has beenreduced from 1 hour to 20 minutes week.

7. That Aditya has not met the Appellant in last 7 months. ThisHon’ble Court had also directed that Appellant was entitled to50% of the annual vacation. The Respondent is obstructing theAppellant’s access rights to Aditya. Hence, the Appellant isconstrained to file the present application seeking compliance ofthe directions of this Hon’ble Court in relation to the Appellant’s

Aaccess rights during summer vacation wherein Aditya is to be inthe temporary custody of the Appellant for 50% of the summervacations. Aditya’s school summer vacations have started andthe Appellant’s precious time with Aditya is being lost. Theobstruction of the Respondent is made evident by the followingfacts:B

a.In terms of judgment dated 28.10.2020, the Appellant wrotean email to the Respondent on11.07.2021informing theRespondent that she would like Aditya to visit India01.08.2021 to 27.08.2021, i.e., 50% of his summer vacationfalling between 10.07.2021 to 01.09.2021. copy of theCemail dated 11.07.2021 is annexed hereto and marked asAnnexure P-4 (pg. no. 163).

b.b. That the Appellant received no reply to her email dated11.07.2021 and was constrained to issue an urgent reminderto the Respondent vide email dated 15.07.2021 wherein theDAppellant reiterated her request to the Respondent ofurgently confirming the dates of Aditya’s visit to India, interms of the judgement dated 28.10.2020 and order dated08.12.2020. copy of email dated 15.07.2021 is annexedhereto and marked as Annexure P-5 (pg.no. 164)

Ec.That the Respondent vide his email dated 16.07.2021informed the Appellant that the summer vacation visitationwould not be possible. The Respondent declined to complywith the directions of this Hon’ble Court in view of theongoing Covid-19 pandemic and for the one-year mourningFperiod being undertaken by Aditya and the Respondent forthe Respondent’s father wherein the Respondent and hisfamily including Aditya have purportedly decided not to travelor go to any hotels. copy of email dated 16.07.2021isannexed hereto and marked as Annexure P-6 (pg. no. 165to 166)

d.The Appellant reiterated her request of sending Aditya toIndia vide email dated 21.07.2021. The Appellant assuagedthe Respondent’s unreal fears and informed him that Covid-19 cases in Delhi have drastically reduced, and the situationhas improved in Delhi. The cases are on an all-time low inHDelhi as compared to April-May 2021. Appellant, being

Aditya’s mother is concerned about his safety and healthand only made request for visitation when the situationregarding Covid-19 cases improved in Delhi. The Appellantalso suggested that she was open to working out anarrangement which would be safest and best for Aditya.The copy of the email dated 21.07 .2021 is annexed heretoand marked as Annexure P-7 (pg. no. 167 to 168)

e.The Respondent, instead of working out solution andarrangement for Aditya to meet the Appellant replied videemail on 24.07.2021 in bitter, unpleasant and aggressivemanner and again denied the Appellant’s request. copyof email dated 24.07.2021is annexed hereto and marked asAnnexure P-8 (pg. no. 169 to 171).

13. Thus, in view of the above, the present application is beingmoved for necessary directions directing the Respondent to complywith the judgment dated 28.10.2020 and order dated 08.12.2020and facilitate Aditya’s meeting with the Appellant. The saiddirections are necessary for the welfare and best interests of thechild. The vacation visitation shall ensure that Aditya has realand effective contact with the mother.”

20. The application thus prayed:-

“(a) Pass an order directing the Respondent to comply withthe judgment dated 28.10.2020 and order dated 08.12.2020 byfacilitating Aditya’s vacation access to the Appellant: inter aliafor breach relating to the direction of Aditya being in the temporarycustody of the Appellant during 50% of the summer vacations”

21. The emails dated 11.07.2021, 15.07.2021, 16.07.2021,21.07.2021 and 24.07.2021 are quoted hereunder for facility:-

“Email dated 11.07.2021

“Dear Perry,

As per the term dates on the website of Pepponi School, Nairobi,Aditya’s summer vacation has commenced from 09.07.2021 andcontinues till 02.09.2021. I would like to have Aditya visit me from01.08.2021 to 27.08.2021. (half of the summer vacation as grantedto me by the Hon’ble Supreme Court).

ABC

Kindly confirm the same by email.

Regards

Smriti”

Email dated 15.07.2021

“Dear Perry,

Please refer to my email dated 11.07.2021, wherein I had urgentlyrequested you to confirm the dates of travel for Aditya to visit meduring his summer break ‘2021 in terms of the Hon’ble SupremeCourt order. I had suggested 1[st] Aug 2021 to 27th Aug 2021.

Furthermore, I am informed that an Air India flight (bubble flight)once week (apparently on every Friday) is functional from Kenyato Delhi via Ahmedabad. Kindly arrange for him to visit me on23[rd] July 2021 or 30th July 2021or 6[th] August 2021 for half of hissummer break i.e. appropriately 27 days. I am flexible on dates,provided the Hon’ble Supreme Court orders are adhered to.

I am anxiously awaiting your response and affirmation.

Regards

Smiriti”

Email dated 16.07.2021

“Dear Smriti,

I would like to inform you that the whole world is currently in themidst of major pandemic and throughout the World, CovidVariants like Delta, Delta Plus, Lambda and Kappa are rampantand causing unprecedented infections and deaths.

India has gone through brutal and lethal Second Wave of Covidwhich has caused unprecedented deaths in India. There arescientific predictions that India is going to have Third Wave ofCovid Pandemic sometime in August 2021 and the third wave islikely to infect children more.

Several Countries World over including the UK, Russia, France,Italy, Holland, Germany and Bangladesh amongst many, manyothers have been experiencing the third wave of Covid. The signsof the Third wave of Covid are also evident as some states in

India have already started seeing rise in the number of Covidcases. Aditya is aged 12 years and is very well aware of Covidsituation and he is very conscious for the safety of himself and hisfamily.

I would also like to inform you that all passenger flights betweenKenya and India are suspended due to Covid. You are also awarethat due to Covid, Aditya has recently lost his Paternal grandfather.There is year long mourning in the family and Aditya has chosennot to celebrate any events and also not to travel. Since thisPandemic has caused an irreparable loss to my Family, for thesafety and well being of Aditya it is not in the interest of Aditya totravel. As you know, there is no Vaccine for children yet.

After reading your email dated 11-7-2021 and 15-7-2021 I amdisappointed that when the whole world is facing such pandemicand people are keeping their children home to protect them fromthe Covid Pandemic, you want Aditya to risk his life to travel fivethousand Kilometers and be exposed to Covid Virus.

Your Information with respect to operation of passenger flightsby Air India is extremely incorrect. Air India is operating flightsonly under The Vande Bharat Mission for evacuating nationals.

The Relevant portion of Air India Circular for Travel attached.

The Relevant extract of KCAA Circular Kenya attached.

Other Relevant attachments: -

• https://www.livemint.com/news/india/india-may-witness-third-covid-wave-from-next-month-sbi-report-11625457429589.html

•https://swachhindia.ndtv.com/third-wave-of-covid-19-likely-to-attack-children-vaccinate-the-parents-quickly-dr-devi-shetty-of-narayana-health-59277/

•https://telanganatoday.com/experts-call-for-caution-ahead-of-third-wave

Therefore in view of the Covid circumstances I am constrainedto inform you that Summer vacations visitation with Aditya wouldnot be possible.

Regards.

Perry”

Email dated 21.07.2021

“Dear Perry

Pretty surprised to note the aggressive content in your responsedated 16[th] July 2021 to my email. After all, I am only seekingcompliance of the Hon’ble Supreme Court order. Why do youwant to make this adversarial?

You pressed for an urgent hearing of the appeal in the SupremeCourt in the midst of the pandemic. The Hon’ble Supreme Courtpermitted you the custody of Adu in middle of pandemic on yourasking. You travelled to India from Kenya with your revered nowdear departed father in order to take the custody of Adu and thentook him to Kenya; all during the pandemic. Clearly all yourpandemic related pretexts to not comply with the Hon’ble SupremeCourt order are just afterthoughts. And yes, Aditya travelled withyou to Kenya in December 2020, very much during the pandemicwhen there were limited flights permitted, just as in the presentsituation.

The Hon’ble Supreme Court gave the custody of Adu to you aswell as visitation rights to me during the pandemic. Access grantedto me was not to begin after the pandemic was over.

Being Aditya’s mother, I am most careful and concerned abouthis safety and security. Please be assured that I will nevercompromise Aditya’s safety. It has been seven months since Adityahas met his mother and grandmother, who he is extremely closeto. Continued physical separation from his mother and grandmothershall have an adverse impact on Aditya.

No doubt that the second wave in India was brutal, but cases inDelhi have reduced drastically and presently there are on anaverage only 40 new cases being reported. Positivity of the virusis only 0.1%. Large number of the population in Delhi have alsogot vaccinated. All over India the cases are constantly comingdown. There is no requirement of lockdown nor indeed is thereone in Delhi. Even national institutions are opening physically. Thesecond wave of covid is all but finished in India. Moreover, mymother and I are also fully vaccinated. In fact the situation inDelhi regarding Covid-19 cases may be relatively better than inNairobi, Kenya. There is no third wave in India. Chances of

possible third wave in India, even if it were to occur, is only expectedin late September and October 2021. This is as per the IndianCouncil for Medical Research; the Apex Medical Body in thisregard. There are even chances that the third wave may not occurat all. The child’s right to meet his mother cannot be violated onsuch distant apprehensions. Your approach is casual anddismissive.

Your revered father’s demise was really sad. I have extended myheartfelt condolences to you and your family. I reiterate them toyou. May his soul rest in peace. I pray that you and your motherfind strength to navigate through this difficult time. However, fora child to meet his mother is nothing to do with breach of mourningthat your family may be undertaking. For my child to meet mecannot be seen to be breach of any custom of your family!Moreover, Aditya meeting his mother and grandmother will onlybeing him love and warmth which is in fact necessary for Adityaright now.

Your email completely denying Aditya’s access to his mother andgrandmother is not only against the best interest of Aditya but isalso unreasonable and unfair. Instead of finding via media or anarrangement where Aditya can meet his mother and grandmotherin the safest possible way, your absolute denial is nothing but anattempt to alienate Aditya from me.

Your attempt to alienate Aditya is also revealed from your consistentattempt in reducing Aditya’s weekly skype time from l hour tonow 15-20 minutes. During these Skype sessions Aditya lookslike he is being controlled and appears to be sad and low. Youappear to be intending to chip away at the sacrosanct SupremeCourt orders. Not acceptable.

Thus, it is of utmost importance that Aditya is able to meet hismother and grandmother. Though Delhi is safe now, I am open toworking out an arrangement which will ensure maximum securityand safety for Aditya. You are aware that My mother and I stayedin Shimla at our house from April to June and it was extremelysafe. I could take Aditya to Shimla in order to ensure maximumsafety. I am also open to working out any other arrangementkeeping Aditya’s safety in mind. Shimla has negligible covid cases.

Kindly book Aditya’s tickets at the earliest so that he can meet hismother and grandmother.

Eagerly waiting to meet Aditya. Looking forward to yourcooperation.

Regards

Smriti”

Email dated 24.07.2021

“Dear Smriti,

Your perpetual habit of living in hallucination and La La landcontinues.

Your email dated 21-7-2021 raising aspersions on the Hon’bleSupreme Court of India are uncalled for. Let me remind you thatyou left no stone unturned to make sure that the custody case inIndia gets delayed in perpetuity and you tried to do the same beforethe Hon’ble Supreme Court of India. You employed various tacticslike filing frivolous applications one after another, so don’t forgetyour own conduct, acts and deeds.

In December 2020, the regular passenger flights were operatingintra country albeit with reduced capacity. It is also relevant tomention that the fresh Covid cases in India in December 2020were very less as compared to current figure of around 45,000daily Covid cases. However currently passenger flights betweenIndia and Kenya are completely suspended and I had providedyou with the details of said suspension of flights vide my earlierreply email dated 16-7-2021.

Your concern for safety of Aditya in the email does not matchwith your insistence of calling Aditya to India in the presentcircumstances and Covid environment. The second wave ofCorona is not yet over in India and as matter of fact as per TheGovt of India, the third wave will hit India between August andOctober 2021 (Refer to attached link). If the vaccine was theanswer to the pandemic, then the whole World would have openedway back and there would not have been severe restrictions andlockdowns. Lockdowns and restrictions that are increasing bythe day.

It seems that your memory is either weak or extremely short, asdue to Covid I also did not have my visitations with Aditya fromApril 2020 till December 2020. That is 9 months of physicalseparation of Aditya from me due to Covid and at that time Inever kept writing you emails for visitations because I was sensibleenough to understand the Covid circumstances and restrictions.

With regret I need to tell you that your approach towards Covid isCasual and dismissive, you are behaving as if there is no covid atall. Do not forget the death toll of Covid cases in India stands atstaggering 3-5 million people (Refer to attached link).

With respect to your reference to Shimla, it is extremely unsafeas the humungous Tourists visiting Shimla make it unsafe quaCovid. Secondly, Currently Himachal Pradesh is undergoingmassive landslides and road blocks due to the ongoing Monsoons.

As you will recollect that earlier also I had requested you to mendyour ways with respect to skype meetings with Aditya but youpaid no heed to the same. Please note that the duration of theskype is in the realm of Aditya and nothing to do with me. In casehe is talking to you for 15-20 minutes, it appears that yourconversation is not sufficient enough to keep him engaged duringthe skype though you are still having Skype with Aditya everyweekend.

Aditya is extremely happy in Kenya, barring the week he lost hisgrandfather who was very dear to him. In case Aditya is sad andlow during skype talks with you, it reflects the non interest ofAditya in your pathetic conversation with him.

Relevant attachments:-

*https://economictimes.indiatimes.com/news/india/true-deaths-due-to-covid-likely-to-be-in-several-millions-not-hundreds-of-thousands-arvind-subramanian/articleshow/84575636.cms

*https://timesofindia.indiatimes.com/india/second-wave-not-yet-over-centre-writes-to-states-says-no-room-for-complacency/articleshow/84404841.cms

*https://www.hindustantimes.com/india-news/covid-3rd-wave-has-it-arrived-what-government-latest-projection-reports-say-101626620955675. html

*https://www.hindustantimes.com/cities/chandigarh-news/growing-tourist-rush-raises-covid-concerns-in-himachal-B101625903253886.html

I again reiterate my stand that was conveyed to you vide myreply email dated 16-7-2021.

Regards.

CPerry”

22. In his reply dated 05.08.2021 which was supported by anaffidavit sworn in Kenya on 05.08.2021, Perry responded as under:-

“1. At the outset, the Respondent seeks to state that there is noteven the remotest intention on his part to disobey or violate theorders passed by this Hon’ble Court including the judgment dated28.10.2020 passed in the captioned matter. However, the ensuingcircumstances as result of the COVID-19 pandemic and itssweep across the World, in the Respondent’s submission, are suchthat compliance of the direction in relation to visitation of the childin India with the Appellant would not be in the best interest of thehealth of the child and therefore, the Respondent prays forexemption from strict compliance of the said direction for thepresent. …”

“2. There is also logistical issue in Aditya travelling to India. TheFAir-bubble flight between Kenya and India would not allow Adityato travel to India from Kenya since Aditya does not fall under anyof the permitted categories of persons who are entitled to travelto India. Even otherwise the current Covid-19 environmentprevalent in India and in the world is not safe for the child toGundertake long distance travel.”

“7. The Respondent, however, is not at all averse to the Appellantmeeting the child and is not in any manner intending to deprive theAppellant of her right of visitation under the orders passed by thisHon’ble Court. If the Appellant can find an alternative method of

travelling to Kenya even at present, the Respondent would bemore than willing to visitation of appellant with child Aditya inKenya for the current vacations.”

In reply to paragraph 7 of the application, it was asserted:-

“That para 7 of the application as stated is wrong, false andvehemently denied. It is denied that the Respondent is obstructingthe Appellant’s access and visitations, as alleged. Rather, it is onlyas result of supervening circumstances, as explained in detail inthe preliminary submissions, that the Respondent believes thatAditya’s travel to New Delhi will not be in his best interest andwelfare, especially from the point of view of his health, and it isfor this reason that the Respondent prays for exemption fromstrict compliance of the direction qua visitation in Delhi at present.Pertinently, the reasons for hiccup in the visitation schedule isfor reasons completely beyond the control of the Respondent –similar to the circumstances when the Respondent could not travelto India for about 9 months i.e. from April 2020 till December2020 during the pendency of the main appeal before this Hon’bleCourt in view of the Covid-19 pandemic.”

23. In her rejoinder to the aforesaid reply, Smriti appended variousdocuments dealing with the apprehension expressed by Perry andsubmitted: -

“b) That most restrictions imposed by the State Government andCentral Government have been lifted or relaxed and large partof the population in Delhi has already been vaccinated. There hasbeen no lockdown in Delhi for the last two months and all theimportant public and private institutions are either already openand functioning or are in the process of doing so. …

2. Thus, in view of the above, it is absolutely safe for Aditya totravel to Delhi and meet his mother and grandmother. Theapprehension and fear of the Respondent regarding Aditya’s visitto India are misplaced and unjustified.

3. As far as Aditya taking flight and being exposed to otherfellow passengers is concerned, Aditya would travel in first classand shall have minimum exposure just like he did when he travelled

Afrom Delhi to Nairobi in December, 2020. Thus, this fear of theRespondent of Aditya travelling in flight is not only misplacedbut also unreasonable and self-serving. Moreover, all internationalflights are following prescribed covid appropriate protocol duringthe flights, similar to the protocol followed in the December 2020flight taken by Respondent for Aditya while travelling to Nairobi.B

4. It is respectfully submitted that the Aditya is close to his motherand grandmother and it would be incorrect to suggest that hedoes not want to come to India to meet his mother and grandmother.Aditya’s close attachment to his mother and grandmother hasalso been observed and noted by this Hon’ble Court when itCinteracted with Aditya on 17.02.2020. …”

24. The matter was taken up on 11.08.2021 when the followingorder was passed by this Court: -

“In the judgment dated 28.10.2020 in C.A. No.35589/2020 andDsubsequent order dated 08.12.2020 passed by this Court, severalissues were touched upon and one of the issues was concerningvacation access to be enjoyed by the mother of the child.

In terms of the directions issued by this Court, the child-Adityawas required to join the company of the mother during his vacation.EHowever, because of the prevailing situation pursuant to Covid-19 Pandemic, the father was apprehensive and as such Adityahas not yet joined the company of his mother.

In the circumstances, M.A. No.1167 of 2021 has been preferredby the mother seeing appropriate directions to facilitate Aditya’svacation access to the mother.F

Mr. A.S. Chandiok, learned Senior Advocate appearing for themother submits that she has already booked the flights and Adityacan board the flight leaving Nairobi on 13.08.2021 to be with themother till 01.09.2021.

GAccording to Mr. Chandiok, since the child enjoys the status as“Overseas Citizen of India” card holder, even under the presentregime of Air Transport Bubbles, the child can certainly come toIndia and after the vacation gets over, go back to Nairobi.

Mr. Anunaya Mehta, learned advocate submits that the OCI cardHholder status enjoyed by Aditya was attached to his earlier passport.

It is submitted that as noticed in the Judgment dated 28.10.2020,the original passport having been lost, new passport has beenissued in favour of Aditya and the number of said passport doesnot appear in the OCI Card of Aditya.

Since in terms of the order passed by this Court, the vacationaccess is to be enjoyed by the mother and the fact that Adityawas holding status of OCI card holder, we direct as under:

(a) Let an appropriate application seeking renewal of the statusas OCI Card Holder be preferred by Perry Kansagra-father ofAditya today itself in the Office of the Indian Embassy at Nairobi.

(b) Upon such application being preferred, the Indian Embassy atNairobi is directed to process the application immediately.

(c) If the Embassy Office finds that Aditya is entitled to the renewalof the OCI card holder Status, appropriate endorsement shall bemade or fresh card shall be issued so as to enable Aditya boardthe flight on 13.08.2021.

(d) Perry Kansagra-father of Aditya is at liberty to produce copyof this order before the Indian Embassy at Nairobi for facility.

Thus, there would be no impediment in Aditya’s boarding the flightto Delhi on 13.08.2021 and return on 01.09.2021. In this process,the vacation access to his mother shall stand fulfilled.

List the matter on 16.08.2021 for reporting compliance.”

25. On 16.08.2021, I.A. No.100550 of 2021 was filed by Smritisubmitting: -

“4. That the Respondent did not allow Aditya to board the flighton 13.08.2021 and from enquiries made by the Appellant from theIndian High Commission at Nairobi, the Respondent has not takenany steps to renew Aditya’s OCI Card Status. To perpetuate andin furtherance of his mala fides, the Respondent refused to respondto the e-mails issued by the counsel for the Appellant quacompliance of the aforementioned orders of this Hon’ble Court,as also blocked the Appellant on WhatsApp and email, and alsosought to withdraw his legal representation in India, day beforethe hearing before this Hon’ble Court. The Respondent has notanswered the phone calls of the Appellant. The Appellant has

detailed the specific acts and conduct of the Respondent in thisrespect in her affidavit dated 14.08.2021 filed before this Hon’bleCourt, which may be read as an integral part of this applicationalso. It is respectfully submitted that the aforementioned deliberateconduct of the Respondent is not only mala fide but impedes andobstructs the administration of justice and harm the welfare ofAditya, while seeking to dilute the majesty of this Hon’ble Court.

6. That the fact the Respondent did not get OCI of the childrenewed and attach it to the new passport or take nay steps toapply for visa for Aditya to travel to India shows that theRespondent did not have any intentions of complying with thejudgment dated 28.10.2020 from the day it was pronounced. Theconduct of the Respondent post the passing of the Judgment dated28.10.2020 and order dated 08.12.2020 and 11.08.2021 has nowestablished that the Respondent had no intention to allow accessbetween the child and the mother.7. The respondent has violated the undertaking given vide anaffidavit of compliance given by him to this Hon’ble Court dated20.11.2020 wherein he had given his undertaking to this Hon’bleCourt, on solemn oath and affirmation, to comply with its directions.The Respondent had also obtained mirror order dated 11.11.2020from the High Court of Kenya, Milimani Law Courts, FamilyDivision wherein the final judgment of this Hon’ble Court dated28.10.2020 was registered (hereinafter referred to as “the mirrororder”). The Respondent has thus, willfully defied his undertakinggiven to this Hon’ble Court and also the mirror order obtainedfrom the Kenyan High Court. …

8. The Respondent had also given an affidavit of undertaking inthe proceedings before the High Court of Delhi to comply withthe orders of the Hon’ble Court. The Respondent’s mother hadalso given an undertaking to the High Court of Delhi to complywith the orders of the Hon’ble Court. It requires mention that thisundertaking of the mother was not included in the order of08.12.2020 as this Hon’ble Court found that the mirror orders andthe Respondent’s undertaking and Rs.1 crore security wereadequate. …

12. The Appellant has had no physical access to Aditya since10.12.2020. The weekly Skype call as per the final judgment dated28.10.2020 which was to take place on the weekend of 14.08.2021and 15.08.2021 was also not facilitated by the Respondent. TheAppellant has now been blocked on all means of communication,WhatsApp, Skype, phone and email since 14.08.2021. TheAppellant has also left voice message for Master Aditya to callher back but has not received any call back.”

The prayers made in the application are not extracted here as thesame were quoted in the subsequent order dated 17.8.2021 passed bythis Court.

26. Since the directions issued by this Court were not compliedwith, this Court in its Order dated 16.08.2021 stated:-

“This is in continuation of the order dated 11.08.2021 passedby this Court in Miscellaneous Application No.1167/2021.

Despite clear directions issued by this Court in the order dated11.08.2021, the father-Perry Kansagra has not followed the same.No application has been preferred seeking renewal or grant ofOCI Cardholder status. In fact as disclosed by Smriti Kansagrahas not even responded to any of the calls made by her.

Mr. Anunaya Mehta, learned Advocate instructed by Mr.Inderjeet Saroop and Mr. P.K. Manohar who was representingPerry Kansagra all the while now reports that Perry Kansagradoes not wish to continue their services as Advocates representinghim. He further states that no instructions are being received fromMr. Perry Kansagra and no contact is getting established betweenthe instructing advocates and Mr. Perry Kansagra.

It was on certain clear understanding that this Court allowedthe custody of the child to be with Perry Kansagra subject tocertain conditions. Those conditions implied that during vacation,the vacation access shall be enjoyed by mother of the child. Nonobservance of these conditions shows the attitude of PerryKansagra. Non observance of the conditions as well as makinghimself inaccessible definitely betrays defiance on part of PerryKansagra.

Considering these facts, we direct that Mr. Inderjeet Saroopand Mr. P.K. Manohar, learned advocates shall not be dischargedand shall continue to represent Perry Kansagra.

Let copy of this order be immediately transmitted to the IndianEmbassy at Nairobi to be served upon Perry Kansagra.

Additionally, the Registry is also directed to send copies of thisorder as well as order dated 11.08.2021 to the Indian Embassy atNairobi for its record and facility.

List this mater for further consideration as first item on Boardon 17.8.2021.”

27. The Order dated 17.08.2021 passed by this Court the nextday quoted the reliefs prayed for in I.A.No.100550 of 2021 and proceededto pass directions as stated therein: -

“I.A. No.100550/2021 has been filed on behalf of Smriti MadanKansagra-mother of Aditya praying inter alia:

“a. Pass an order taking suo motu cognizance of the conductof Respondent-Perry Kansagra and initiate appropriateproceedings against him and pass all consequential orders:

b. Issue show cause notice to Respondent-Perry Kansagraas to why he should not be suitably charged, convicted andsentence in accordance with law and for this purpose directthe Indian High Commission at Kenya and London to seekthe assistance of the appropriate authorities to secure thepersonal presence of Kansagra before this Hon’ble Courtby taking him into custody or otherwise;

c. Revert the custody of Aditya Vikram Kansagra to theAppellant;

d. Restrain the Respondent-Perry Kansagra from takingany action, or/and taking any steps, or/and initiating and/orprosecuting any proceedings or any action of any naturebefore the Courts in Kenya or any other court which willcreate an impediment in the implementation or executionof order dated 11.08.2021 or any other order or judgementpassed by this Hon’ble Court’

e. Restrain the Respondent-Perry Kansagra from seekingany modification of the mirror order dated 11.112020 fromthe High Court of Kenya, Milimani Law Courts, FamilyDivision.

f. Compel the Respondent-Perry Kansagra to yield boththe Kenyan passport and the UK passport of Aditya VikramKansagra to the Officer authorised by the Indian HighCommission.

g. Pass an order impleading the Union of India through theMinistry of External Affairs in the present proceedings andtake the amended memo of parties being Annexure P-10on record.

h. In view of the mirror order dated 11.11.2020, direct theIndian High Commission at Nairobi, Kenya to take theassistance of the Kenyan Authorities to take steps to locateAditya Vikram Kansagra and bring him back to India on aflight arranged by the Appellant;

i. Direct the Indian High Commission at Nairobi Kenya toissue an emergency travel document for Aditya VikramKansagra renewing his OCI on his present/current Kenyanpassport.

j. Direct responsible official of the Indian High Commissionat Kenya to travel with Aditya from Nairobi to New Delhiand to hand over Aditya upon reaching New Delhi to theAppellant;

k. Pass an order directing the Union of India to issue redcorner notice against Perry Kansagra.

l. Revive the undertaking of Respondent’s mother, Mrs.Sucheta Patel, dated 27.02.2020 given before the High Courtof Delhi and bind her to the orders passed by this Hon’bleCourt.

m. Pass an order striking of the defence of the Respondent-Perry Kansagra in the pending proceedings arising out ofthe marriage with the Appellant and dismiss the counterclaim filed by the Respondent as mentioned in paragraphNo.21(e).

n. Pass ad interim ex parte orders in terms of prayers ‘a’ to‘m’ hereinabove.

o. Pass any other order it may deem fit in the interests ofjustice.”

Heard Mr. A.S. Chandhiok and Ms. Sonia Mathur, learnedSenior Advocates for Smriti Kansagra.

Considering the facts and circumstances on record, we issuenotice on this application.

Since, learned advocates for Perry Kansagra are present, noBseparate notice is actually necessary. However, we direct issuancenotice to Mr. Perry Kansagra-father of Aditya on this application.

We also direct the Indian Embassy at Nairobi, Kenya to servea copy of this order upon Mr. Perry Kansagra.

CAt this stage, we grant ad interim relief in terms of Prayers(d), (e) & (f) made in the aforesaid application. In order to considerand effectuate the relief prayed for in prayer (g) and for theassistance required in the instant matter, we issue notice to theCentral Agency, returnable on 19.08l.2021. Additionally, the papersshall be served upon the office of learned Solicitor General ofDIndia to take appropriate steps in the matter.

List this matter on 19.08.2021 as first item on Board.

We request Mr. Anunaya Mehta, learned Advocate as anOfficer of the Court to assist the Court in ensuring compliance ofa Mirror Order produced on record at the instance of PerryEKansagra.”28. On 18.08.2021, another Interim Application was filed by Smritistating:-

“11. The custody of Aditya was given by the Appellant to PerryFon 10.12.2020 on the strength of the “mirror order” dated9.11.2020, which he all along knew was not in compliance of thisHon’ble Court’s order in it’s true spirit. The Respondent in well-planned conspiracy consciously did not comply with the judgmentdated 28.10.2020.

12. Pithily put, the motion of the Respondent to comply with thepre-condition of obtainment of mirror orders before taking thecustody of Aditya to Kenya has not been met by the Respondent,as the Kenyan Court, has by speaking order, dismissed the same.The Respondent only came to know of this order dated 21.05.2021passed by the Kenyan High Court on 17.08.2021.

13. It appears that the Respondent has perpetrated fraud onthis Hon’ble Court and that he has suppressed his failure to meetthe pre-condition of obtaining mirror order from the KenyanCourt in terms of the judgment dated 28.10.2020 passed by thisHon’ble Court. In that view of the matter, the very custody ofAditya with the Respondent is illegal and the continued illegalcustody falls foul of the penal laws of India.”

It was, therefore, prayed:-

“a. Declare that the custody of Aditya Vikram Kansagra withPerry Kansagra is illegal and recall the order dated 28.10.2020read with 08.12.2020;

b. Direct the Registrar of the Hon’ble Supreme Court of India toregister an FIR against the Respondent, his mother and otherunknown persons under Sections 191, 193, 209, 420, 361, 363,365 and 368 read with Sections 34 and 120B of the IPC and anyother applicable provision;

c. Direct the CBI to investigate the said FIR and also empowerthe CBI to take steps to bring Aditya Vikram Kansagra back tothe lawful custody of Smriti Kansagra.”

29. copy of the Order dated 21.05.2021 was appended to theaforestated application. Said Order dated 21.05.2021 was to the followingeffect:-

“REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBIFAMILY DIVISION

MISCELLANEOUS APPLICATION NO.E031 OF 2020IN THE MATTER OF FOREIGN JUDGMENTS

(RECIPROCAL ENFORCEMENT)

ACT, CAP 43 OF THE LAWS OF KENYAIN THE MATTER OF AN ORDER OF THE SUPREMECOURT OF INDIA ISSUED ON 28THOCTOBER, 2020

ANDIN THE MATTER OF AVK (A CHILD)

AND IN THE MATTER OF SECTION 4, 22, 113 OFTHE CHILDREN ACT AND

ARTICLE 53 OF THE CONSTITUTION OF KENYA2010

FOR AN APPLICATION FOR MIRROR ORDERSBY

PK…………………………….EX-PARTE APPLICANT

BETWEEN

PK…………………………….EX-PARTE APPLICANTJUDGMENT

1. PK the Applicant herein, filed an Originating Summons dated30.10.2020 seeking the following:-

1. Spent

2. THAT the judgment delivered by the Supreme Court ofIndia in Supreme Court Civil appeal No.3559 of 2020 – SMKv. PK be registered.

3. THAT further, or other or orders, be granted so as to giveeffect to the orders of an in compliance with judgment of theSupreme Court of India made on 28[th] October 2020.

4. THAT costs be reserved.

2. The Application is anchored on the provisions of the Constitutionof Kenya, 2020, the Children Act and the Foreign Judgments(Reciprocal Enforcement) Act and all enabling provisions of law.Given the prayers sought herein, the primary law on the matter isthe Foreign Judgments (Reciprocal Enforcement) Act.

3. The facts of this case as can be gleaned from the record is thatthe Applicant Kenyan citizen married S an Indian Citizen 29.7.09.Following the marriage, S moved to Kenya and settled in hermatrimonial home. In 2009, she returned to India for the birth oftheir son AVK, who was born on 2.12.09 in New Delhi, India. On1.7.10, the child came to Kenya with his parents where they lived.On 10.3.12 the child went to India both parents and was due to

return to Kenya on 6.6.12. The Applicant went to India on 22.6.12and spent time with S and the child until 26.4.12 when he returnedto Kenya. On 26.5.12, S filed suit in the Delhi High Court, seekinga permanent injunction restraining the Applicant and his parentsfrom removing the child from her lawful custody or from Delhi, oraccessing the child in school, which orders were granted. Thismarked the beginning of litigation between the parties from theHigh Court all the way to the Supreme Court and culminated inthe judgment, the registration of which the Applicant seeks.

4. In the judgment, the Supreme Court of India ordered that thecustody of the child be handed over by S to the Applicant subjectto several conditions set out in the judgment. Key among theconditions is that the Applicant was to obtain mirror order fromthis Court reflecting the directions in the judgment, within 2 weeks.A copy of the mirror order was then to be filed in the SupremeCourt of India.

5. The law relating to enforcement of judgments made in theforeign countries is set out in the Foreign Judgment (ReciprocalEnforcement) Act, Chapter 43 of the Laws of Kenya. Theobjective of the Act is to make provision for the enforcement inKenya, of judgments given in other countries which accordreciprocal treatment to judgments given in Kenya and for otherpurposes in connection therewith. The orders that the Applicantseeks to have registered by this Court were issued by the SupremeCourt of India. In order for the said order to be enforceable, itmust meet 2 criteria. First, the order must be made by designatedcourt and second, it must be an order or judgment to which theAct applies.

6. Section 2(1) of the Act defines designated court as follows:-

“designated court” means –

(a) superior court of reciprocating country which is aCommonwealth country;

(b) superior court of any other reciprocating country whichis specified in an order made under Section 13;

(c) subordinate court of reciprocating country which isspecified in an order made under Section 13;

7. Section 2(1) of the Act further defines “reciprocating country”as that country declared as such, for the purposes of this Act bythe Minister under Section 13(1). The superior Court giving thejudgment must be of reciprocating country, as declared by theline Minister by an order, to be reciprocating country for thepurposes of the Act.

8. The Foreign Judgments (Reciprocal Enforcement) (Extensionof Act) Order, 1984 lists in schedule, the countries declared bythe minister to be reciprocating countries. Paragraph 2 of the Orderprovides:

The countries specified in the schedule are declared to bereciprocating countries for the purposes of the Act and theAct shall apply with respect to judgments given by superiorcourts of those countries.

SCHEDULE

1. Australia,

2. Malwai,

3. Seychelles,

4. Tanzania,

5. Uganda,

6. Zambia,

7. The United Kingdom,

8. Republic of Rwanda.

9. From the above schedule, it is evident that India has not by anorder of the Minister, been declared to be reciprocating country.In the case of Jayesh Hasmukh Shah v. Navin Haria and another[2016] eKLR the Court of Appeal dismissed an appeal where theappellant sought to enforce and execute in Kenya judgmentGfrom Ethopia which like India, is not reciprocating country underthe provisions of the Act. The Court stated:

There is currently no treaty in place between Kenya andEthopia pursuant to which either country’s judgment maybe enforced by either country’s court. It is not in disputeHthat Ethopia’s Federal Supreme Court is not “designated

court” within the meaning of Kenya’s Foreign Judgment(Reciprocal Enforcement) Act. The respondent cited thecase of Intalframe Ltd. v. Mediterranean Shipping Company,(1986) KLR where this Court expressed that the basicprinciple upon which neighbouring or other states providedfor enforcement of foreign judgments is one of reciprocity.It is our considered view that the case of Intalframe Ltd. v.Mediterranean Shipping Company (supra) and the ForeignJudgment (Reciprocal Enforcement) Act (Cap 43, Laws ofKenya) are not relevant to this appeal as they are applicableonly where there is reciprocal arrangement on enforcementof foreign judgment.

10. There are currently no reciprocal arrangements in placebetween Kenya and India pursuant to which either country’sjudgment may be enforced or registered by either country’s courts.As such, the Supreme Court of India is not “designated court”within the meaning of the Act.

11. It is noted that the order, the registration of which is sought bythe Appellant relates to the custody of the child of the Appellantand S. Even if India were reciprocating country, the Applicationherein would still run into headwinds in view of the provisions ofSection 3(3)(e) of the Act which stipulates:-

(3) This Act does not apply to judgment or order-

(e) in proceedings in connection with the custody orguardianship of children;

12. This Court has no jurisdiction to enforce or register foreignjudgment in proceedings in connection with the custody orguardianship of child. This is because the Act does not apply tojudgment in in such proceedings. In this regard, I agree withMysyoka, J. who in Ian Mbugua Mimanov. Charlotte WamuyuMutisya & 2 others[2014] eKLR. Stated.

There is no jurisdiction for me to deal with the matter ofthe enforcement of foreign decree in proceedings inconnection with the custody or guardianship of child.

There is clearly no merit in the application dated 20[th] May,2014 so far as it relates to enforcement of decree made

Aby USA court in proceedings in connection with thecustody or guardianship of child. I decline to grant it, andI hereby dismiss it with costs.

13. The Court therefore makes finding that the judgment fromthe Supreme Court of India, being from superior court of non-Breciprocating country, and further being one in proceedings inconnection with the custody or guardianship of child, is notregistrable in this Court by dint of Sections 13(1) and 3(3)(e) ofthe Foreign Judgment (Reciprocal Enforcement) Act.

14. The Applicant has relied on the case ofIn Re Matter of I WCP (Infant) [2013] eKLRin support of his case. I have consideredthe decision and note that the same is distinguished, in that thejudgment in respect of which registration was sought therein, wasfrom Superior Court in the United Kingdom, reciprocatingcountry within the meaning of Section 2 of the Act. Notably, thelearned Judge did not address that restriction in Section 3(3)(e)Don applicability of the act to matters relating guardianship andcustody of children. In any event, the said judgment being of aCourt of concurrent jurisdiction to this Court is not binding on thisCourt.

15. In the end and for the reasons stated, I do find that theEOriginating Summons dated 30.10.2020 lacks merit and the sameis hereby dismissed. This being matter concerning child, thereshall be no order as to costs.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS21[ST] DAY OF MAY 2021.F

___________

M. THANDE

JUDGE”

30. On 19.08.2021, Mr. Tushar Mehta, learned Solicitor GeneralGof India appeared and the matter was directed to be taken up on24.08.2021. Following order was passed by this Court on 24.08.2021:-

“The circumstances in which Miscellaneous Application No.1167/2021 has been filed in Civil Appeal No.3559/2020, have beenreferred to in some detail in the earlier orders passed by this CourtHon 11.08.2021, 16.08.2021 and 17.08.2021.

“Pursuant to the request made by this Court, Mr. Tushar Mehta,learned SG has appeared and advanced certain submissions. Mr.Mukul Rohatgi and Ms. Sonia Mathur, learned Senior Advocatesappearing for the applicant have also invited our attention tovarious facts of the matter.

In the light of the submission advanced by the learned counsel, inour view, it would be proper if the matter is placed before theBench of three judges as the Judgment dated 28.10.2020 andOrder dated 08.12.2020 were passed by the Bench of three judgesof this Court.

We therefore, direct the Registry to place the instant matter beforethe Hon’ble CJI and seek requisite directions to constitute Benchof three Judges alongwith Hon’ble Mr. Justice Hemant Guptawho was member of the Bench when the Judgment dated28.10.2020 and Order dated 08.12.2020 were passed.

List the matter at the end of the Board on 27.08.2021.”

31. After hearing learned counsel for Smriti and Mr. AnunayaMehta who rendered assistance as an Officer of the Court by orderdated 27.08.2021, the matter was directed to be posted for orders by thepresent Bench on 2[nd] September, 2021. However, on 01.09.2021, I.A.No.108665 of 2021 was filed by Smriti stating as under:-

“2. That this Hon’ble Court had vide order dated 17.08.2021granted the following prayers to the Appellant and against theRespondent –

“d. Restrain the Respondent-Perry Kansagra from takingany action, or/and taking any steps, or/and initiating and/orprosecuting any proceedings or any action of any naturebefore the Courts in Kenya or any other Court which willcreate an impediment in the implementation or executionof order dated 11.08.2021 or any other order or judgmentpassed by this Hon’ble Court;

e. Restrain the Respondent-Perry Kansagra from seekingany modification of the mirror order dated 11.11.2020 fromthe High Court of Kenya, Milimani Law Courts, FamilyDivision.”

3. That the Appellant received an email dated 31.08.2021 alongwith notice of motion and an affidavit in support of the notice of

motion, both dated 26[th] August, 2021 and an order dated 30[th]August, 2021, passed by the High Court of Kenya. The saiddocuments further establish the contumacious and perjuriousconduct of the Respondent and are being placed before this Hon’bleCourt as Annexure P-1 (Pg.No.5 to 127).”

32. On the same day, another application i.e. I.A. No.109369 of2021 was filed by Smriti stating :-

“3. That the Appellant received an email dated 31.08.2021alongwith Petition and an affidavit in support of the Petition,both dated 26[th] August, 2021 and an order dated 30[th] August 2021,Cpassed by the High Court of Kenya. The said documents furtherestablish the contumacious and perjurious conduct of theRespondent and are being placed before this Hon’ble Court asAnnexure P-2.”

33. From these applications and the documents appended thereto,Dit is evident that:

A. On 26.08.2021, Perry filed Petition No.E 301 of 2021 claiminginter alia for declaration that the orders passed by this Court wereinvalid and incapable of compliance and/ or enforcement and forpermanent injunction barring Smriti from taking Aditya outside theEjurisdiction of the High Court of Kenya. The relevant portions from thePetition are:

“4. The Petitioner and the 1[st] Respondent solemnized their marriageon 29[th] July, 2007 at New Delhi, India and following the marriage,the 1[st] Respondent moved to Kenya and lived with the PetitionerFin Nairobi, Kenya. The Minor was born on 2[nd] December, 2009from the wedlock of the Petitioner and the 1[st] Respondent andthe said child has dual Kenyan and British citizenship.

5. The 1[st] Respondent left Kenya and travelled to India on 10[th]March, 2012 along with the Minor under the pretext of going tovisit her (the 1[st] Respondent’s) Mother who lives in India and onarriving and settling in India, the 1[st] Respondent clandestinely fileda suit in the High Court at New Delhi, India seeking permanentinjunction restraining the Petitioner and his Parents from removingthe Minor from the custody of the 1[st] Respondent or from removingthe Minor from Delhi or accessing him in school.

6. The 1[st] Respondent unauthorizedly and illegally detained theMinor in India for Eight (8) Years and the Petitioner had to gothrough tedious and prolonged litigation with the 1[st] Respondentin Indian Courts which litigation culminated in judgment deliveredon 28[th] October, 2020 by the Supreme Court of India in SUPREMECOURT CIVIL APPEAL NO.3559 OF 2020 (SMRITI MADANKANSAGRA VS. PERRY KANSAGRA) pursuant to which thePetitioner was, inter-alia, granted permanent custody of the Minor.

7. The judgments passed by all the three Indian Courts came to aconclusive finding that the best interest and welfare of the child isbest secured by granting the Petitioner the custody of the Minorand the three relevant judgments issued in the proceedings betweenthe Petitioner and the 1[st] Respondent are as follows:-

a) GUARDIANSHIP PETITION NO.53 OF 2012(PERRY KANSAGRA VS SMRITI MADANKANSAGRA) filed in the Family Court South Saket DistrictCourts, New Delhi where Petition was allowed and Petitionerherein declared as guardian of the Minor child are grantedpermanent custody of the minor child with the 1[st] Respondentbeing granted visitation rights and temporary custody duringschool vacations in summer and winters, each year.

b) Thereafter, the said Order of the Family Court South SaketDistrict Courts, New Delhi was challenged by the 1[st]Respondent before the High Court of Delhi vide Case No.MAT. APP (F.C.) 30/ 2018. The said appeal was dismissedvide judgment dated 25[th] February, 2020 and the Petitionerherein was granted permanent custody.

c) Thereafter, the said order of the High Court of Delhi waschallenged by the 1[st] Respondent before Supreme Court ofIndia vide CIVIL APPEAL NO.3559 OF 2020 (SMRITIMADAN KANSAGRA VS PERRY KANSAGRA) being anappeal arising out of Guardianship Petition filed at the SupremeCourt of India where custody of the Minor was handed overto Perry Kansagra (the Petitioner), subject to the Petitionermeeting certain directions, among them, obtaining ‘MirrorOrder’ from the High Court in Nairobi, Kenya.

12. It is humiliating and degrading to the Minor and violationof his rights to have his inherent dignity respected and protectedby forcefully compelling him to take out an Overseas Citizenof India (OCI) card in the Office of the Indian embassy atNairobi without first ascertaining his feelings and wishes, andwithout taking into account the fact that he is dual citizen ofthe Republic of Kenya and the United Kingdom.

13. The actions, of the 1[st] Respondent and the orders issuedby the Supreme Court of India on 11[th] August, 2021 requiringthe Minor to take out an OCI card and board flight to India isa clear violation of the rights enshrined under Article 28 of theConstitution of Kenya which recognizes the inherent dignity ofthe Minor and the right to respect and protect that dignity.

14. No effort has been made by the 1[st] Respondent and/ or theSupreme Court of India to ascertain the wishes and feelings ofthe Minor, his emotional needs and no effort has been made toevaluate whether taking out an OCI card and arranging thetraveling of the Minor to India during the pendency of thecorona-virus pandemic is harmful to his welfare and bestinterest.

15. The petitioner alleges that under Article 53 of theConstitution of Kenya, the Minor has the right to be protectedfrom abuse, neglect and inhuman treatment and to recognitionthat the Minor’s best interests are of paramount importance inevery matter concerning the child. The concise allegations andfacts the Petitioner relies upon to describe the manner andrelevant acts of contravention of the said Fundamental Freedomunder Article 53 of the Constitution of Kenya are:-

(a) The ineffectual and unenforceable Orders issued bythe Supreme Court of India was given without jurisdiction.The Supreme Court of India could not exercise jurisdictionover the Kenyan Minor in matters that concerned thecustody of the Minor who is now resident and citizen ofKenyan. The orders did not have regard to the welfare,ascertainable feelings, wishes and best interest of the Minorand by compelling the Minor to take out OCI card and travelto India before ascertaining the emotional needs, feelingsand wishes of the Minor, the Court acted in total disregardof what constitutes child’s best interest.(b) the Orders issued by the Supreme Court of India do notadvance the rule of law and the human rights andfundamental freedoms guaranteed in the Bill of Rights. Theorders are incapable of implementation and if implemented,would have absurd results because the said orders are notbinding based on the following:

(i) India has not been declared reciprocating countryunder the provisions of Foreign Judgment (ReciprocalEnforcement) Act, Chapter 43 of the Laws of Kenyaand as such, the judgment of the Indian Courts cannotbe effectively enforced and/or executed in Kenya.

(ii) Section 3(3) (e) of Foreign Judgment (ReciprocalEnforcement) Act, Chapter 43 of the Laws of Kenyadoes not recognize judgment or order in proceedingsconnected with the custody or guardianship of childrenpassed by foreign courts. In the foregoingcircumstances, the Courts in Kenya are not bound bythe foreign judgment in such proceedings related withthe custody or guardianship of children.

(iii) There is no valid “Mirror Order” and in the eventthe child is sent to India, there is every possibility thatthe child may be detained in India by the Indian Courtsand/or the Mother and the Kenyan Courts who arelawfully vested with jurisdiction over Kenyan Nationalsand Citizens will lose their jurisdiction over the Minorand it will become impossible for Kenyan Courts toprotect the rights of the child in such an eventuality.

(c) No regard has been given to the Minor’s physical,emotional and educational needs and the Minor is at risk ofsuffering harm by being compelled to travel to India duringthe existence of the Covid-19 pandemic, thus exposing himto health hazards.

(d) Kenyan Courts have exclusive territorial and/orgeographical jurisdiction over children who are KenyanCitizens and that jurisdiction cannot be taken away by anyother Court or administrative body.

(e) It is unreasonable and contrary to public interest forany Court, Diplomatic Mission or administrative body to

unilaterally compel Minor to adopt citizenship or status ofidentity that the Minor has not expressed any ascertainablewish to acquire.

(f) The right of every child to have their best interestprotected and safeguarded is paramount and the ordersissued by the Supreme Court of India purport to limit andrestrict the enjoyment of the child’s rights guaranteed underArticle 53 (2) of the Constitution of Kenya.

(g) The acts of the 1st Respondent smacks of mala fideand are calculated to make sure that the Minor is issuedwith an OCI card and travels to India. The 1st Respondentis not motivated by the best interest of the child and offendthe provisions of Article 53 of the Constitution of Kenya.

16. The Petitioner states that this Honourable Court hasjurisdiction under Article 165(3) (a), (b) (d) and Article 258 ofthe Constitution of Kenya and Section 22(1) of the ChildrenAct to hear and determine this Petition and make such orders,issue such writs and give such directions as it may considerappropriate bearing in mind the best interest of the Minor asby law required.

YOUR PETITIONER THEREFORE HUMBLY PRAYSETHAT:-

1.A declaration of invalidity of Indian jurisdiction and/or lawsand/or judgments denying, violating and/or threatening toinfringe the fundamental rights of the Minor throughFpurported and unenforceable judgments and orders relatingto the Minor under Articles 23(3) (d) of the Constitution ofKenya.

2.A declaration that the Minor is dual citizen of Kenya andthe United Kingdom and resident of Kenya and that Indiahas no territorial and/or geographical jurisdiction overGpersonal matters relating to the Minor.

3.A declaration that compelling the Minor to take out OverseasCitizen of India (OCI) card in the Office of the IndianEmbassy at Nairobi and/or compelling the said Minor toBoard flight to India during the pendency of the highly

infectious Covid-19 pandemic and against the travelrestrictions imposed by the Government of the Republic ofKenya is contrary to Section 13(1) of the Children Act andis violation of the fundamental right of the Minor enshrinedunder Article 28 and 53 of the Constitution of Kenya.

4. declaration that there exists no valid “Mirror Orders” tothe orders issued by the Supreme Court of India on 11thAugust, 2021 and in the circumstances, the Orders areinapplicable to the Minor and incapable of compliance and/or enforcement.

5.A declaration that under Section 3 (3) (e) of the ForeignJudgment (Reciprocal Enforcement) Act, Chapter 43 of theLaws of Kenya, Kenya lacks jurisdiction to recognize,enforce or register foreign judgment in proceedings thatrelate to the custody or guardianship of children who arecitizens of the Republic of Kenya.

6.A declaration that all the rights of the Minor are governedexclusively by the Children Act, Chapter 141 of the Lawsof Kenya and that to safeguard and promote the rights andwelfare of the Minor, the 1st Respondent herein or anyother party to these proceedings ought to seek any redressfrom Kenyan Courts where the Minor is citizen andcurrently resident as provided for under Section 118 of theChildren Act.

7.An Order that the Director of Children’s Services do carryout an in-depth enquiry into the wellbeing, welfare,ascertainable wishes and feelings of the Minor under Section4 (2), 11, 76 (3) of the Children Act and tender report tothis Honourable Court and provide all necessary assistanceto the judicial process to the intent that orders issued by thisHonourable Court which require administrativearrangements may achieve fulfilment.

8.An order directing the Petitioner to allow the 1st Respondentand the Minor unimpeded telephone access in circumstancesand durations the Court shall deem reasonable and visitationrights to visit and stay with the Minor within the Republicof Kenya in circumstances and for duration the Court

shall deem reasonable provided that the 1st Respondentshall not remove the Minor from the said Republic of Kenya.

9.A permanent injunction barring the 1st Respondent eitherby herself, her Servants and/or Agents from taking the Minoroutside the jurisdiction of this Honourable Court or any otherperson whosoever from arranging and/or facilitating theremoval of the Minor from Kenya without the express willfulconsent of the Minor and the Petitioner. ….”

B. In said Petition No.E 301 of 2021, Notice of Motion was alsomoved for interim relief pending hearing and determination of the dispute.The relevant portion of the Notice of Motion was:-

“NOTICE OF MOTION

(Under rule 11(1) Part II of the Constitution of Kenya(Protection of Rights and Fundamental Freedoms) Practiceand Procedure Rules, 2013 and all enabling-provisions ofthe law.)

TAKE NOTICE that this Honourable Court shall be moved on………….the……day of ………2021, by Counsel for thePetitioner/Applicant for hearing an Application for ORDERSTHAT:

1. This application be certified urgent and fit to be heard on prioritybasis.

2. Pending the inter-partes hearing and determination of thisapplication, this Honourable court be pleased to issue aconservatory order of status quo.

3. Pending the inter-partes hearing and determination of thisapplication, this Honourable Court be pleased to grant an order oftemporary injunction restraining and barring the 1[st] Respondenteither by herself, her Servants and/or Agents or any other personwhosoever from taking the Minor outside the jurisdiction of thisHonourable Court and/or arranging and/or facilitating the removalof the Minor from Kenya without the express consent of the Minorand the Petitioner.

4. Pending the inter-partes hearing and determination of thisapplication, this Honourable Court be pleased to issue an order of

temporary injunction restraining and barring the 1[st] Respondenteither by herself, her Servants and/or Agents or any other personwhosoever from applying for or obtaining an Overseas Citizenshipof India (OCI) card in the name and/or on behalf of the Minor inorder to facilitate the Minor to board flight and travel outside theRepublic of Kenya.

5. In the exercise of its inherent discretion, and should it finds fit,this Honourable Court be pleased to call and interact with theMinor and ascertain his feelings and wishes regarding the 1[st]Respondent’s intention of removing him from Kenya and takinghim to India during the pendency of the Covid-19 global pandemicand if the Court find it necessary, to Commission the relevantoffice in the Department of Children Services to prepare and filebefore this Honourable Court situational report on theascertainable feelings and wishes of the Minor and finding as towhether the intended travel to India is in the best interest of theMinor.

6. An order that service of the Petition and the supporting Affidavittogether with all pleadings and/or process of the Court in thismatter be served upon the 1[st] Respondent through her last knownemail address and by Courier Service to her last known addressin New Delhi, India being care of C-Block 487, Defence Colony,New Delhi-110024.

7. The cost of an incidentals to this application abide the results ofthe said Appeal.

WHICH APPLICATIONis premised inter alia on the followinggrounds supported by the affidavit of the Petitioner/Applicant andon other grounds to be adduced at the hearing hereof;

a) THAT the Petitioner/Applicant is the biological father andnatural guardian of the Minor and currently lives and takes careof the Minor at their Nairobi home following Court Order issuedby the Supreme Court of India in Supreme Court Civil AppealNo. 3559 of 2020 (SMRITI MADAN KANSAGRA VS. PERRYKANSAGRA)

b) THAT the Supreme Court of India in Supreme Court CivilAppeal No.3559 of 2020 (SMRITI MADAN KANSAGRA VS.PERRY KANSAGRA) came to the conclusive finding that the

best interest and welfare of the child was best served and securedby granting the Petitioner permanent custody of the Minor withthe Respondent being granted visitation rights during schoolvacations in summer and winters, each year.

c) THAT following the aforesaid Judgment of the Supreme Courtof India, the Minor has been living with the Petitioner in Nairobiwhere he has acclimatized and accustomed to his new home andschool environment and made friends and is scheduled to startClass VII at Peponi House School in Nairobi in the Month ofSeptember, 2021.

d) THAT on 28[th] June, 2021 the minor lost his paternal grandfatherwho succumbed to Covid-19 related complications and is stillmourning the said loss as he was very close to his paternalgrandfather. The minor fears the covid-19 pandemic and heprefers to stay in Nairobi and not travel during the pendency ofthe covid-19 pandemic.

e) THAT the 1[st] Respondent sought and on 11[th] August 2021,obtained orders from the Supreme Court of India inMISCELLANEOUS APPLICATION NO.1167 OF 2021 INCIVIL APPEAL NO. 3559 OF 2020 (SMRITI MADANKANSAGRA VS. PERRY KANSAGRA) where the Court issuedEorders compelling the Petitioner to apply in the office of the IndianEmbassy at Nairobi for the Minor to be issued with OverseasCitizen of India card so as to enable the Minor board flight andtravel to India notwithstanding that the Government of the Republicof Kenya has issued travel restrictions through the Kenya CivilFAviation suspending all passenger flights between Kenya and Indiawith effect from Midnight 7[th] June, 2021 due to the Covid-19infections.

f) THAT the Minor has declared his ascertainable feelings andwishes as recorded in situational report dated 9[th] August, 2021Gand prepared by County Coordinator, Nairobi Country ChildrenServices in the Department of Children Services and from thecontents of the said report, the Minor fears the 1[st] Respondentand is not willing to travel to India; he prefers to stay in Kenyawith the Petitioner and fears that the 1[st] Respondent who isdrunkard, abusive and violent will illegally detain the Minor in IndiaHlike she did previously.

g) THAT the 1[st] Respondent has moved with speed and bookedan Air Ticket for the Minor to take the Minor to India via Pariscontrary to the ascertainable feelings and wishes of the Minorand the interest of justice will best be served by granting aconservatory order of status quo and pending the hearing anddetermination of the annexed Petition.

h) THAT the Petitioner/Applicant’s Petition raises substantial andimportant constitutional points as well as points of law and touchon matters of paramount importance to the best interest of theMinor and which is recognized and guaranteed under Article 53(2)of the Constitution.

i) THAT if conservatory order and/or temporary order ofinjunction is not granted restraining and barring the 1[st] Respondenteither by herself, her Servants and/or Agents or any other personwhosoever from removing the Minor from the jurisdiction of thisHonourable Court and/or applying for an Overseas Citizenship ofIndia (OCI) card in the name and/or on behalf of the Minor inorder to facilitate the Minor to board flight to India, the bestinterest of the Minor will be compromised and his rights andfreedoms guaranteed under the Constitution will be violated andhis health, mental and emotional development of affected.

j) THAT it is in the interest of justice and in the best interest ofAditya Vikram Kansagra that the orders sought herein be granted.

Dated at Nairobi this 26[th] day of August, 2021.”

C. The affidavit of Perry in support of the Notice of Motion stated,inter alia:-

“15. THAT I am advised by Mr. Pravin Bowry SC, and whichadvice I verily believe to be true that due to the principle ofdiplomatic immunity, I cannot file suit and get orders againstGovernment Officials of the Indian Embassy at Nairobi to restrainthem from issuing the Minor with an Overseas Citizen of Indiacard since they are not subject to the jurisdiction of Kenyan Courtsin the performance of their official duties.

16. THAT I am further advised by my aforesaid Advocate andwhich advise I verily believe to be true, that under the provisionsof Section 3 (3) € of the Foreign Judgment (Reciprocal

AEnforcement) Act, Chapter 43 of the Laws of Kenya, Courts inKenya cannot recognize and/or deal with the orders obtained fromforeign courts in proceedings connected with the custody orguardianship of children and the Orders obtained by the 1[st]Respondent on 11[th] August, 2021 in the Supreme Court of Indiacannot be given recognition and/or enforcement by Kenyan CourtsBand are thus invalid and need to be declared as such.

17. THAT I am therefore reasonably apprehensive that if thismatter is not certified urgent and admitted to hearing on prioritybasis and conservatory order of status quo issued, the orderobtained by the 1[st] Respondent on 11[th] August, 2021 from theCSupreme Court of India and which is invalid and incapable ofrecognition and/or enforcement by Kenyan Courts will be used toimpede and violate the fundamental rights and freedoms of theMinor who is citizen and resident of the Republic of Kenya andused to unlawfully remove the Minor from the jurisdiction of thisDHonourable Court.”

D. The Situational Report dated 9.8.2021 referred to in Paragraph

7(f) of the Notice of Motion was :-

“MINISTRY OF EAC, LABOUR AND SOCIALPROTECTION

DEPARTMENT OF CHILD SERVICES

NAIROBI COUNTY CHILDREN SERVICES

Telephone (020) 2059212

EmailProvincial Headquarter BuildingNyayo HousePO Box 58016-0200

Nairobi

Date: 09/08/2021

David Kiptum & Company Advocates

49, Mageta Road, off Muthangari Road, LavingtonP.O. Box 21863-001100

Nairobi

SITUATIONAL REPORT ON ADITYA VIKRAMKANSAGRA (MINOR)

The minor is 11 years old having been born on 2/12/2009. He is inyear 7 at Pepont School. He was interviewed on 9/8/2021 followingthe complaints that were raised by his mother to his father viaemail and in an application filed before the Indian Supreme Court.The gist of her complaint is that the minor is being alienated fromher, is being controlled and is sad and low.

The minor was interviewed and he indicated to me that he did notwish to talk to his mother because there was nothing for him totalk about. It was his claim that each time he talked to her shepressured him to leave Kenya and join her in India, something hedoes not want. He also said that India reminded him of very badmemories where his mother was mistreating him. That she usedto shout at him whenever she was drunk something that affectedhim emotionally. It was also his claim that his mother did not allowhim to play with his friends.

The minor said he preferred talking to his maternal grandmotherwhom he said was very kind to him while in India. He felt that hisfather was pressuring him to talk to his mother against his wish.He was very candid that he did not wish to go to India and that hepreferred to stay in Kenya with his father.

Considering the ascertainable wish of the minor and the ordersgiven by the India Court it is my considered opinion that you shouldmove to the Children Court seeking orders that will give effect tohis wishes. To force him to talk to his mother and to travel to Indiato see her against his wish is likely to visit untold psychologicaleffect on him. Given the fact that the child is within the jurisdictionof Kenya, the children court is clothed with the jurisdiction toissue orders of this nature

ISADIA HOYD

COUNTY COORDINATOR

NAIROBI COUNTY CHILDREN SERVICES”

A34. The documents and the developments referred to hereinaboveshow: -

(i) Perry had given an unequivocal undertaking to the High Courtthat he would submit to the jurisdiction of the Indian Courts. He had alsogiven solemn undertaking to this Court that he would comply with theBOrder dated 28.10.2020 in addition to the Judgment dated 28.10.2020.

(ii) In response to specific submission raised in MiscellaneousApplication No.2140 of 2020 (quoted in paragraph 16 hereinabove), itwas submitted by Perry that he had subjected himself to the jurisdictionof this Court. While dealing with the rival submissions in the Order datedC8.12.2020, this Court made it clear that the undertaking given by Perryto the High Court would continue to be operative, in addition to theundertaking given to this Court.

(iii) The Judgment dated 28.10.2020 had called upon Perry toobtain ‘Mirror Order’ from the concerned Court in Nairobi to reflectDthe directions contained in the Judgment dated 28.10.2020. Thereafter,the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobialong with the relevant application moved by Perry seeking registrationof the Judgment dated 28.10.2020, was filed in this Court.

(iv) There was dispute whether the registration granted videEorder dated 9.11.2020 by the High Court of Kenya at Nairobi amountedto fulfilling the requirement of “Mirror Order”. The submissions on thepoint were dealt with in paragraphs 8 and 9 of the Order dated 8.12.2020.The learned counsel appearing for Perry had relied upon the opiniongiven by M/s. GMC Advocates which in turn had relied upon the decisionof the High Court of Kenya at Nairobi in Re: Matter of I W P (Infant)F[2013] eKLR to submit that the registration itself was “Mirror Order”in compliance of the requirements of the Judgment dated 28.10.2020.

Relying on the submissions so advanced on behalf of Perry andin deference to the Order dated 9.11.2020 passed by the High Court ofKenya at Nairobi, in paragraph 10 of the Order dated 8.12.2020, thisGCourt observed that the registration of the Judgment of this Court by theHigh Court of Kenya at Nairobi was sufficient compliance of thedirections to obtain “Mirror Order” issued from Competent Court inKenya.

(v) The Judgment dated 28.10.2020 and the Order dated 8.12.2020Hpassed by this Court were thus premised on the submission that the

Order dated 9.11.2020 passed by the High Court of Kenya at Nairobiwhile registering the Judgment dated 28.10.2020 passed by this Courtwas in fact the “Mirror Order”.

(vi) It now transpires that by subsequent Order dated 21.5.2021,the High Court of Kenya at Nairobi in Paragraph 13 of its order observedthat the judgment of this Court was not registrable and dismissed theOriginating Summons dated 30.10.2020 filed by Perry.

(vii) At no stage Perry brought this development to the notice ofthis Court that the Originating Summons moved by him seeking registrationof the Judgment dated 28.10.2020 passed by this Court was dismissedby the High Court of Kenya at Nairobi on 21.5.2021. Having submittedto the jurisdiction of the Indian Courts it was the bounden duty of Perryto keep this Court appraised of all the developments particularly whenthe “Mirror Order” was the fulcrum on the basis of which this Courthanded over to him the custody of Aditya.

(viii) This infraction gets more pronounced in the light of thestand taken in his Affidavit dated 5.8.2021 filed in this Court and referredto in Paragraph 22 hereinabove. In that affidavit Perry unequivocallystated that he had not even the remotest intention to disobey the Orderpassed by this Court including the Judgment dated 28.10.2020. Yet,something as basic and fundamental like the Order dated 21.05.2021was not brought to the notice of this Court. Logically, Perry should havebrought back Aditya to this country so that status quo ante could berestored and appropriate orders could thereafter be passed by this Court.(ix) Miscellaneous Application No.1167 of 2021 filed by Smritihad annexed e-mails exchanged between her and Perry and prayed thatPerry be directed to comply with directions regarding vacation access.In response, apart from stating that he had no intentions to disobey theorders passed by this Court, Perry voiced concern about sending Adityato India. Being well aware of the conditions in this Country, solutionwas devised by this Court in its Order dated 11.08.2021 and certaindirections to facilitate the entry of Aditya into and his exit from India ina safe manner were issued. Pertinently on 11.08.2021, the attention ofthis Court was not invited to the fact that the Situational Report dated09.08.2021 as referred to hereinabove was made or that the matter wasbeing looked into by the concerned authorities in Kenya.

(X) Despite clear directions issued in the Order dated 11.08.2021Perry had not taken any steps to comply with the Order. As matter of

Afact, by the time the matter was taken up for further hearing on16.08.2021, Perry sought to withdraw the authorization in favour of thelearned counsel who were all the while representing him before thisCourt.

(XI) As disclosed in I.A. 100550 of 2021 week-end Skype meetingsBbetween Smriti and Aditya were not facilitated from the week-end of14.08.2021 and 15.08.2021. Perry also blocked all means ofcommunications with Smriti. Though in law the learned advocates whohad entered appearance on behalf of Perry would continue to representhim, notice was additionally directed to be served on Perry through Indianembassy of Nairobi.C

(XII) In the light of the defiant attitude exhibited by Perry and hisrefusal to abide by the Orders passed by this court, ad-interim relief interms of prayers (d) (e) and (f) made by Smriti in her I.A. No.100550 of2021 was granted by this Court vide its order dated 17.08.2021.

D(XIII) Finally, Petition No.E301 of 2021 and – Notice of Motionwere moved on behalf of Perry, filed in the High Court of Kenya atNairobi on 26.08.2021. The stand taken by Perry in said Petition andNotice of Motion is that it would be humiliating to compel Aditya to takeOCI Card; that wishes of Aditya were not ascertained by this Court;that there was no valid Mirror Order and that the orders passed by thisECourt were without jurisdiction. He has prayed for declaration that thereexisted no valid “Mirror Order” and in the circumstances the orderspassed by this Court are incapable of compliance and/or enforcement.

35. These developments not only show the defiant andcontumacious posture now adopted by Perry but prima facie supportFthe submissions of Smriti made in Interim Applications referred to inparagraphs 25, 27, and 28 herein above. There appears to be concretematerial and reason to believe that it was well-planned conspiracy onpart of Perry to persuade this Court to pass orders in his favour andallow him the custody of Aditya and then turn around and defy the Ordersof this Court.G

36. It is fundamental that party approaching the Court mustcome with clean hands, more so in child custody matters. Any fraudulentconduct based on which the custody of minor is obtained under theorders of the Court, would negate and nullify the element of trust reposedby the Court in the concerned person. Wherever the custody of minorH

is matter of dispute between the parents or the concerned parties, theprimary custody of the minor, in parens patriae jurisdiction, is with theCourt which may then hand over the custody to the person who in theeyes of the Court, would be the most suitable person. Any action initiatedto obtain such custody from the Court with fraudulent conduct and designwould be fraud on the process of the Court.

37. We may now refer to some of the cases where orders ordecrees from the Court were obtained by party after practicing fraudupon the Court.

(a) In S.P. Chengalvaraya Naidu v. Jagannath[4] the observationsby this Court were to the following effect: -

“5. The High Court, in our view, fell into patent error. The shortquestion before the High Court was whether in the facts andcircumstances of this case, Jagannath obtained the preliminarydecree by playing fraud on the court. The High Court, however,went haywire and made observations which are wholly perverse.We do not agree with the High Court that “there is no legal dutycast upon the plaintiff to come to court with true case and proveit by true evidence”. The principle of “finality of litigation” cannotbe pressed to the extent of such an absurdity that it becomes anengine of fraud in the hands of dishonest litigants. The courts oflaw are meant for imparting justice between the parties. One whocomes to the court, must come with clean hands. We areconstrained to say that more often than not, process of the courtis being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of lifefind the court-process convenient lever to retain the illegal gainsindefinitely. We have no hesitation to say that person, who’scase is based on falsehood, has no right to approach the court. Hecan be summarily thrown out at any stage of the litigation.

6. The facts of the present case leave no manner of doubt thatJagannath obtained the preliminary decree by playing fraud onthe court. fraud is an act of deliberate deception with the designof securing something by taking unfair advantage of another. It isa deception in order to gain by another’s loss. It is cheatingintended to get an advantage. Jagannath was working as clerkwith Chunilal Sowcar. He purchased the property in the court

Aauction on behalf of Chunilal Sowcar. He had, on his own volition,executed the registered release deed (Ex. B-15) in favour ofChunilal Sowcar regarding the property in dispute. He knew thatthe appellants had paid the total decretal amount to his masterChunilal Sowcar. Without disclosing all these facts, he filed thesuit for the partition of the property on the ground that he hadBpurchased the property on his own behalf and not on behalf ofChunilal Sowcar. Non-production and even non-mentioning of therelease deed at the trial is tantamount to playing fraud on thecourt. We do not agree with the observations of the High Courtthat the appellants-defendants could have easily produced theCcertified registered copy of Ex. B-15 and non-suited the plaintiff.A litigant, who approaches the court, is bound to produce all thedocuments executed by him which are relevant to the litigation. Ifhe withholds vital document in order to gain advantage on theother side then he would be guilty of playing fraud on the court aswell as on the opposite party.”D(b) In Indian Bank v. Satyam Fibres (India) (P) Ltd.[5] theprinciples were stated thus: -

“21. In Smith v. East Elloe Rural Distt. Council[6] the House ofLords held that the effect of fraud would normally be to vitiateEany act or order. In another case, Lazarus EstatesLtd. v. Beasley[7], Denning, L.J. said:

‘No judgment of court, no order of Minister, can be allowedto stand if it has been obtained by fraud. Fraud unravelseverything.’

F22. The judiciary in India also possesses inherent power, speciallyunder Section 151 CPC, to recall its judgment or order if it isobtained by fraud on court. In the case of fraud on party to thesuit or proceedings, the court may direct the affected party to filea separate suit for setting aside the decree obtained by fraud.Inherent powers are powers which are resident in all courts,Gespecially of superior jurisdiction. These powers spring not fromlegislation but from the nature and the constitution of the tribunalsor courts themselves so as to enable them to maintain their dignity,

5 (1996) 5 SCC 550

6 [1956 AC 736 : (1956) 1 All ER 855 : (1956) 2 WLR 888]

H7 [(1956) 1 QB 702 : (1956) 1 All ER 341 : (1956) 2 WLR 502] (QB at p. 712)

secure obedience to its process and rules, protect its officers fromindignity and wrong and to punish unseemly behaviour. This poweris necessary for the orderly administration of the court’s business.

23. Since fraud affects the solemnity, regularity and orderlinessof the proceedings of the court and also amounts to an abuse ofthe process of court, the courts have been held to have inherentpower to set aside an order obtained by fraud practised upon thatcourt. Similarly, where the court is misled by party or the courtitself commits mistake which prejudices party, the court hasthe inherent power to recall its order. (See: Benoy KrishnaMukerjee v. Mohanlal Goenka[8] ; Gajanand Sha v. DayanandThakur[9] ; Krishnakumar v. Jawand Singh[10] ; Devendra NathSarkar v. Ram Rachpal Singh[11]; Saiyed Mohd. Raza v. RamSaroop[12]; Bankey Behari Lal v. Abdul Rahman[13]; LekshmiAmma Chacki Amma v. Mammen Mammen[14], The court has alsothe inherent power to set aside sale brought about by fraudpractised upon the court (Ishwar Mahton v. Sitaram Kumar[15]or to set aside the order recording compromise obtained by fraud.(Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh[16]; TaraBai v. V.S. Krishnaswamy Rao[17]"

(C) In United India Insurance Co. Ltd. v. Rajendra Singh[18]this Court observed: -

“16. Therefore, we have no doubt that the remedy to move forrecalling the order on the basis of the newly-discovered factsamounting to fraud of high degree, cannot be foreclosed in such asituation. No court or tribunal can be regarded as powerless torecall its own order if it is convinced that the order was wangledthrough fraud or misrepresentation of such dimension as wouldaffect the very basis of the claim.

8 [AIR 1950 Cal 287]9 [AIR 1943 Pat 127 : ILR 21 Pat 838]10 [AIR 1947 Nag 236 : ILR 1947 Nag 190]11 [ILR (1926) 1 Luck 341 : AIR 1926 Oudh 315]12 [ILR (1929) 4 Luck 562 : AIR 1929 Oudh 385 (FB)]13 [ILR (1932) 7 Luck 350 : AIR 1932 Oudh 63]14 [1955 Ker LT 459] .15 [AIR 1954 Pat 450]16 [AIR 1958 Pat 618 : 1958 BLJR 651]17 [AIR 1985 Kant 270 : ILR 1985 Kant 2930]18 (2000) 3 SCC 581

A(D) In Ram Chandra Singh v. Savitri Devi[19] the discussion onthe point was as under:-

“18. fraudulent misrepresentation is called deceit and consistsin leading man into damage by wilfully or recklessly causing himto believe and act on falsehood. It is fraud in law if partymakes representations which he knows to be false, and injuryensues therefrom although the motive from which therepresentations proceeded may not have been bad.

18. fraudulent misrepresentation is called deceit and consistsin leading man into damage by wilfully or recklessly causing himto believe and act on falsehood. It is fraud in law if partymakes representations which he knows to be false, and injuryensues therefrom although the motive from which therepresentations proceeded may not have been bad.”

(E) In Hamza Haji v. State of Kerala[20] the matter in issue wasdiscussed thus: -D

“10. It is true, as observed by De Grey, C.J., in R. v. Duchessof Kingston[21] that:

“ ‘Fraud’ is an extrinsic, collateral act, which vitiates the mostsolemn proceedings of courts of justice. Lord Coke says itEavoids all judicial acts, ecclesiastical and temporal.”

11. In Kerr on Fraud and Mistake, it is stated that:

“In applying this rule, it matters not whether the judgmentimpugned has been pronounced by an inferior or by the highestcourt of judicature in the realm, but in all cases alike it isFcompetent for every court, whether superior or inferior, to treatas nullity any judgment which can be clearly shown to havebeen obtained by manifest fraud.”

12. It is also clear as indicated in Kinch v. Walcott[22] that it wouldbe in the power of party to decree vitiated by fraud to applyGdirectly to the court which pronounced it to vacate it. Accordingto Kerr:

19 (2003) 8 SCC 31920 (2006) 7 SCC 41621 [2 Smith LC 687]H22 [1929 AC 482 : 1929 All ER Rep 720 : 141 LT 102 (PC)]

“In order to sustain an action to impeach judgment, actualfraud must be shown; mere constructive fraud is not, at allevents after long delay, sufficient … but such judgment willnot be set aside upon mere proof that the judgment was obtainedby perjury.”

(See 7th Edn., pp. 416-17)

13. In Corpus Juris Secundum, Vol. 49, para 265, it isacknowledged that:

“Courts of record or of general jurisdiction have inherent powerto vacate or set aside their own judgments.”

In para 269, it is further stated:

“Fraud or collusion in obtaining judgment is sufficientground for opening or vacating it, even after the term atwhich it was rendered, provided the fraud was extrinsicand collateral to the matter tried and not matter actuallyor potentially in issue in the action.”

It is also stated:

“Fraud practised on the court is always ground for vacatingthe judgment, as where the court is deceived or misled asto material circumstances, or its process is abused, resultingin the rendition of judgment which would not have beengiven if the whole conduct of the case had been fair.”

14. In American Jurisprudence, 2nd Edn., Vol. 46, para 825, itis stated:

“Indeed, the connection of fraud with judgment constitutesone of the chief causes for interference by court of equitywith the operation of judgment. The power of courts of equityin granting such relief is inherent, and frequent applications forequitable relief against judgments on this ground were made inequity before the practice of awarding new trials was introducedinto the courts of common law.

Where fraud is involved, it has been held, in some cases, that aremedy at law by appeal, error, or certiorari does not precluderelief in equity from the judgment. Nor, it has been said, isthere any reason why judgment obtained by fraud cannot be

Athe subject of direct attack by an action in equity even thoughthe judgment has been satisfied.”

15. The law in India is not different. Section 44 of the EvidenceAct enables party otherwise bound by previous adjudicationto show that it was not final or binding because it is vitiated byBfraud. The provision therefore gives jurisdiction and authority to acourt to consider and decide the question whether prioradjudication is vitiated by fraud. In Paranjpe v. Kanade[23] it washeld that: (ILR p. 148)

“It is always competent to any court to vacate any judgmentor order, if it be proved that such judgment or order wasCobtained by manifest fraud;”

16. In Lakshmi Charan Saha v. Nur Ali[24] it was held that: (ILRp. 936)

“[T]he jurisdiction of the Court in trying suit [questioning theearlier decision as being vitiated by fraud,] was not limited toDan investigation merely as to whether the plaintiff wasprevented from placing his case properly at the prior trial bythe fraud of the defendant. The Court could and must rip upthe whole matter for determining whether there had been fraudin the procurement of the decree.”

E17. In Manindra Nath Mittra v. Hari Mondal[25] the Courtexplained the elements to be proved before plea of priordecision being vitiated by fraud could be upheld. The Court said:(AIR p. 127)

“With respect to the question as to what constitutes fraud forFwhich decree can be set aside, two propositions appear to bewell established. The first is that although it is not permitted toshow that the Court (in the former suit) was mistaken, it maybe shown that it was misled, in other words, where the Courthas been intentionally misled by the fraud of party and afraud has been committed upon the Court with the intention toGprocure its judgment, it will vitiate its judgment. The second isthat decree cannot be set aside merely on the ground that ithas been procured by perjured evidence:”

23 [ILR (1882) 6 Bom 148]24 [ILR (1911) 38 Cal 936 : 15 CWN 1010]H25 [(1919) 24 CWN 133 : AIR 1920 Cal 126]

18. The position was reiterated by the same High Court in EsmileUddin Biswas v. Shajoran Nessa Bewa[26] . It was held that: (AIRp. 650)

“[I]t must be shown that the fraud was practised in relation tothe proceedings in Court and the decree must be shown tohave been procured by practising fraud of some sort, upon theCourt:”

19. In Nemchand Tantia v. Kishinchand Chellaram (India)Ltd.[27] it was held that: (CWN p. 740)

“A decree can be reopened by new action when the courtpassing it had been misled by fraud, but it cannot be reopenedwhen the court is simply mistaken; when the decree was passedby relying on perjured evidence, it cannot be said that the courtwas misled.”

20. It is not necessary to multiply authorities on this questionsince the matter has come up for consideration before this Courton earlier occasions. In S.P. Chengalvaraya Naidu v.Jagannath[28 ] this Court stated that: (SCC p. 2, para 1)

“It is the settled proposition of law that judgment or decreeobtained by playing fraud on the court is nullity and non est inthe eye of the law. Such judgment/decree—by the first courtor by the highest court—has to be treated as nullity by everycourt, whether superior or inferior. It can be challenged in anycourt even in collateral proceedings.”

The Court went on to observe that the High Court in that casewas totally in error when it stated that there was no legal dutycast upon the plaintiff to come to the court with true case andprove it by true evidence. Their Lordships stated: (SCC p. 5, para5)

“The courts of law are meant for imparting justice betweenthe parties. One who comes to the court, must come with cleanhands. We are constrained to say that more often than not,process of the court is being abused. Property-grabbers, tax-

26 [132 IC 897 : AIR 1931 Cal 649 (2)]

27 [(1959) 63 CWN 740 : AIR 1959 Cal 776]

28 [(1994) 1 SCC 1 : 1993 Supp (3) SCR 422]

evaders, bank loan-dodgers and other unscrupulous personsfrom all walks of life find the court process convenient leverto retain the illegal gains indefinitely. We have no hesitation tosay that person, whose case is based on falsehood, has noright to approach the court. He can be summarily thrown outat any stage of the litigation.”

21. In Ram Preeti Yadav v. U.P. Board of High School andIntermediate Education[29] this Court after quoting the relevantpassage from Lazarus Estates Ltd. v. Beasley[30] and afterreferring to S.P. Chengalvaraya Naidu v. Jagannath[31]reiterated that fraud avoids all judicial acts. In State of A.P. v. T.CSuryachandra Rao[32 ]of this Court after referring to the earlierdecisions held that suppression of material document could alsoamount to fraud on the Court. It also quoted (at SCC p. 155,para 16) the observations of Lord Denning in Lazarus EstatesLtd. v. Beasley[33] that: (All ER p. 345 C)

“No judgment of court, no order of Minister, can be allowedto stand if it has been obtained by fraud. Fraud unravelseverything.”

22. According to Story’s Equity Jurisprudence, 14th Edn., Vol.1, para 263:

“Fraud indeed, in the sense of Court of Equity, properlyincludes all acts, omissions, and concealments which involve abreach of legal or equitable duty, trust, or confidence, justlyreposed, and are injurious to another, or by which an undueand unconscientious advantage is taken of another.”

F23. In Patch v. Ward[34] Sir John Rolt, L.J. held that:

“Fraud must be actual positive fraud, meditated and intentionalcontrivance to keep the parties and the court in ignorance ofthe real facts of the case, and obtaining that decree by thatcontrivance.”

29 [(2003) 8 SCC 311 : 2003 Supp (3) SCR 352]30 [(1956) 1 All ER 341 : (1956) 2 WLR 502 : (1956) 1 QB 702 (CA)]31 [(1994) 1 SCC 1 : 1993 Supp (3) SCR 422]32 [(2005) 6 SCC 149]33 [(1956) 1 All ER 341 : (1956) 2 WLR 502 : (1956) 1 QB 702 (CA)]H34 [(1867) 3 Ch App 203 : 18 LT 134]

24. This Court in Bhaurao Dagdu Paralkar v. State ofMaharashtra[35] held that: (SCC p. 607)

“Suppression of material document would also amount to afraud on the court. Although, negligence is not fraud but it canbe evidence on fraud.”

25. Thus, it appears to be clear that if the earlier order from theForest Tribunal has been obtained by the appellant on perjuredevidence, that by itself would not enable the Court in exercise ofits power of certiorari or of review or under Article 215 of theConstitution of India, to set at naught the earlier order. But if thecourt finds that the appellant had founded his case before theForest Tribunal on false plea or on claim which he knew to befalse and suppressed documents or transactions which hadrelevance in deciding his claim, the same would amount to fraud.In this case, the appellant had purchased an extent of about 55acres in the year 1968 under Document No. 2685 of 1968 dated2-6-1968. He had, even according to his evidence before theForest Tribunal, gifted 5 acres of land to his brother under deeddated 30-1-1969. In addition, according to the State, he had sold,out of the extent of 55.25 acres, an extent of 49.93 acres byvarious sale deeds during the years 1971 and 1972. Though, thedetails of the sale deeds like the numbers of the registereddocuments, the dates of sale, the names of the transferees, theextents involved and the considerations received were set out bythe State in its application for review before the High Court, exceptfor general denial, the appellant could not and did not specificallydeny the transactions. Same is the case in this Court, where in thecounter-affidavit, the details of these transactions have been setout by the State and in the rejoinder filed by the appellant, there isno specific denial of these transactions or of the extents involvedin those transactions. Therefore, it stands established without aniota of doubt as found by the High Court, that the appellantsuppressed the fact that he had parted with almost the entireproperty purchased by him under the registered document throughwhich he claimed title to the petition schedule property before theForest Tribunal. In other words, when he claimed that he had titleto 20 acres of land and the same had not vested in the State and

EFG

in the alternative, he bona fide intended to cultivate the land andwas cultivating that land, as matter of fact, he did not haveeither title or possession over that land. The Tribunal had foundthat the land was private forest and hence has vested under theAct. The Tribunal had granted relief to the appellant only basedon Section 3(3) of the Act, which provided that so much extent ofprivate forest held by an owner under valid registered documentof title executed before the appointed day and intended forcultivation by him and that does not exceed the extent of the ceilingarea applicable to him under Section 82 of the Kerala LandReforms Act, could be exempted. Therefore, unless the appellanthad title to the application schedule land and proved that he intendedto cultivate that land himself, he would not have been entitled toan order under Section 3(3) of the Act. It is obvious that when hemade the claim, the appellant neither had title nor possession overthe land. There could not have been any intention on his part tocultivate the land with which he had already parted and of whichhe had no right to possession. Therefore, the appellant played afraud on the Court by holding out that he was the title-holder ofthe application schedule property and he intended to cultivate thesame, while procuring the order for exclusion of the applicationschedule lands. It was not case of mere perjured evidence. Itwas suppression of the most vital fact and the founding of claimon non-existent fact. It was done knowingly and deliberately,with the intention to deceive. Therefore, the finding of the HighCourt in the judgment under appeal that the appellant had procuredthe earlier order from the Forest Tribunal by playing fraud on it,stands clearly established. It was not case of the appellant merelyputting forward false claim or obtaining judgment based onperjured evidence. This was case where on fundamental factof entitlement to relief, he had deliberately misled the Court bysuppressing vital information and putting forward false claim,false to his knowledge, and claim which he knew had no basiseither in fact or on law. It is therefore clear that the order of theForest Tribunal was procured by the appellant by playing fraudand the said order is vitiated by fraud. The fact that the HighCourt on the earlier occasion declined to interfere either on theground of delay in approaching it or on the ground that secondreview was not maintainable, cannot deter Court moved in thatbehalf from declaring the earlier order as vitiated by fraud.

26. The High Court, as court of record, has exercised itsjurisdiction to set at naught the order of the Forest Tribunal thusprocured by the appellant by finding that the same is vitiated byfraud. There cannot be any doubt that the Court in exercise of itsjurisdiction under Article 215 of the Constitution of India has thepower to undo decision that has been obtained by playing afraud on the Court. The appellant has invoked our jurisdictionunder Article 136 of the Constitution of India. When we find inagreement with the High Court that the order secured by him isvitiated by fraud, it is obvious that this Court should decline tocome to his aid by refusing the exercise of its discretionaryjurisdiction under Article 136 of the Constitution of India. We donot think that it is necessary to refer to any authority in support ofthis position except to notice the decision in Ashok Nagar WelfareAssn. v. R.K. Sharma [(2002) 1 SCC 749 : 2001 Supp (5) SCR662] .”

(F) In K.D. Sharma v. SAIL[36] the matter in issue was dealt withas under:-

“26. It is well settled that “fraud avoids all judicial acts,ecclesiastical or temporal” proclaimed Chief Justice Edward Cokeof England about three centuries before. Reference was madeby the counsel to leading decision of this Court in S.P.Chengalvaraya Naidu v. Jagannath[37] wherein quoting theabove observations, this Court held that judgment/decree obtainedby fraud has to be treated as nullity by every court.

27. Reference was also made to recent decision of this Courtin A.V. Papayya Sastry v. Govt. of A.P.[38] Considering Englishand Indian cases, one of us (C.K. Thakker, J.) stated: (SCC p.231, para 22)

“22. It is thus settled proposition of law that judgment, decreeor order obtained by playing fraud on the court, tribunal orauthority is nullity and non est in the eye of the law. Such ajudgment, decree or order—by the first court or by the finalcourt—has to be treated as nullity by every court, superior or

36 (2008) 12 SCC 48137 [(1994) 1 SCC 1]

38 [(2007) 4 SCC 221]

Ainferior. It can be challenged in any court, at any time, in appeal,revision, writ or even in collateral proceedings.”

The Court defined “fraud” as an act of deliberate deception withthe design of securing something by taking unfair advantage ofanother. In fraud one gains at the loss and cost of another. EvenBthe most solemn proceedings stand vitiated if they are actuatedby fraud. Fraud is thus an extrinsic collateral act which vitiates alljudicial acts, whether in rem or in personam.

….. ….. …..

39. If the primary object as highlighted in Kensington IncomeCTax Commrs[39]. is kept in mind, an applicant who does not comewith candid facts and “clean breast” cannot hold writ of thecourt with “soiled hands”. Suppression or concealment of materialfacts is not an advocacy. It is jugglery, manipulation, manoeuvringor misrepresentation, which has no place in equitable andprerogative jurisdiction. If the applicant does not disclose all theDmaterial facts fairly and truly but states them in distorted mannerand misleads the court, the court has inherent power in order toprotect itself and to prevent an abuse of its process to dischargethe rule nisi and refuse to proceed further with the examination ofthe case on merits. If the court does not reject the petition on thatEground, the court would be failing in its duty. In fact, such anapplicant requires to be dealt with for contempt of court for abusingthe process of the court.”

(G) In Meghmala v. G. Narasimha Reddy[40] this Court observed:-

“28. It is settled proposition of law that where an applicant getsFan order/office by making misrepresentation or playing fraud uponthe competent authority, such order cannot be sustained in theeye of the law. “Fraud avoids all judicial acts, ecclesiastical ortemporal.” (Vide S.P. Chengalvaraya Naidu v. Jagannath[41].In Lazarus Estates Ltd. v. Beasley[42] the Court observed withoutGequivocation that: (QB p. 712) “No judgment of court, no orderof Minister, can be allowed to stand if it has been obtained byfraud. Fraud unravels everything.”

39 [(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)]40 (2010) 8 SCC 38341 [(1994) 1 SCC 1 : AIR 1994 SC 853]H42 [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341 (CA)]

29. In A.P. State Financial Corpn. v. GAR Re-Rolling Mills[43]and State of Maharashtra v. Prabhu[44] this Court observed thata writ court, while exercising its equitable jurisdiction, should notact as to prevent perpetration of legal fraud as the courts areobliged to do justice by promotion of good faith. “Equity is alwaysknown to defend the law from crafty evasions and new subtletiesinvented to evade law.”

30. In Shrisht Dhawan v. Shaw Bros[45]. it has been held as under:(SCC p. 553, para 20)

“20. Fraud and collusion vitiate even the most solemnproceedings in any civilised system of jurisprudence. It is aconcept descriptive of human conduct.”

31. In United India Insurance Co. Ltd. v. Rajendra Singh[46]this Court observed that “Fraud and justice never dwell together”(fraus et jus nunquam cohabitant) and it is pristine maximwhich has never lost its temper over all these centuries.

32. The ratio laid down by this Court in various cases is thatdishonesty should not be permitted to bear the fruit and benefit tothe persons who played fraud or made misrepresentation and insuch circumstances the Court should not perpetuate the fraud.(See Vizianagaram Social Welfare Residential SchoolSociety v. M. Tripura Sundari Devi[47], Union of India v. M.Bhaskaran[48], Kendriya Vidyalaya Sangathan v. GirdharilalYadav[49], State of Maharashtra v. Ravi Prakash BabulalsingParmar[50], Himadri Chemicals Industries Ltd. v. Coal TarRefining Co.[51] and Mohd. Ibrahim v. State of Bihar[52].

33. Fraud is an intrinsic, collateral act, and fraud of an egregiousnature would vitiate the most solemn proceedings of courts ofjustice. Fraud is an act of deliberate deception with design to

43 [(1994) 2 SCC 647 : AIR 1994 SC 2151]44 [(1994) 2 SCC 481 : 1994 SCC (L&S) 676 : (1994) 27 ATC 116]45 [(1992) 1 SCC 534 : AIR 1992 SC 1555]46 [(2000) 3 SCC 581 : 2000 SCC (Cri) 726 : AIR 2000 SC 1165]47 [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14 ATC 766]48 [1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94]49 [(2004) 6 SCC 325 : 2005 SCC (L&S) 785]50 [(2007) 1 SCC 80 : (2007) 1 SCC (L&S) 5]51 [(2007) 8 SCC 110 : AIR 2007 SC 2798]52 [(2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929]

Asecure something, which is otherwise not due. The expression“fraud” involves two elements, deceit and injury to the persondeceived. It is cheating intended to get an advantage. [Vide Vimla(Dr.) v. Delhi Admn.[53], Indian Bank v. Satyam Fibres (India)(P) Ltd.[54], State of A.P. v. T. Suryachandra Rao[55], K.D.Sharma v. SAIL[56] and Central Bank of India v. MadhulikaBGuruprasad Dahir[57].

34. An act of fraud on court is always viewed seriously. collusionor conspiracy with view to deprive the rights of the others inrelation to property would render the transaction void ab initio.Fraud and deception are synonymous. Although in given case aCdeception may not amount to fraud, fraud is anathema to allequitable principles and any affair tainted with fraud cannot beperpetuated or saved by the application of any equitable doctrineincluding res judicata. Fraud is proved when it is shown that afalse representation has been made (i) knowingly, or (ii) withoutDbelief in its truth, or (iii) recklessly, careless whether it be true orfalse. Suppression of material document would also amount to afraud on the court. (Vide S.P. ChengalvarayaNaidu[58], Gowrishankar v. Joshi Amba Shankar FamilyTrust[59], Ram Chandra Singh v. Savitri Devi[60], RoshanDeen v. Preeti Lal[61], Ram Preeti Yadav v. U.P. Board of HighESchool & Intermediate Education[62] and Ashok LeylandLtd. v. State of T.N.[63]

35. In Kinch v. Walcott[64] it has been held that:

“… mere constructive fraud is not, at all events after longdelay, sufficient but such judgment will not be set aside uponFmere proof that the judgment was obtained by perjury”.

53 [AIR 1963 SC 1572 : (1963) 2 Cri LJ 434]54 [(1996) 5 SCC 550]55 [(2005) 6 SCC 149 : AIR 2005 SC 3110]56 [(2008) 12 SCC 481]G57 [(2008) 13 SCC 170 : (2009) 1 SCC (L&S) 272]58 [(1994) 1 SCC 1 : AIR 1994 SC 853]59 [(1996) 3 SCC 310 : AIR 1996 SC 2202]60 [(2003) 8 SCC 319]61 [(2002) 1 SCC 100 : 2002 SCC (L&S) 97 : AIR 2002 SC 33]62 [(2003) 8 SCC 311 : AIR 2003 SC 4268]63 [(2004) 3 SCC 1 : AIR 2004 SC 2836] )H64 [1929 AC 482 : 1929 All ER Rep 720 (PC)]

Thus, detection/discovery of constructive fraud at muchbelated stage may not be sufficient to set aside the judgmentprocured by perjury.”

36. From the above, it is evident that even in judicial proceedings,once fraud is proved, all advantages gained by playing fraudcan be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrineof res judicata are not attracted. Suppression of any material fact/document amounts to fraud on the court. Every court has aninherent power to recall its own order obtained by fraud as theorder so obtained is non est.”

(H) In Badami v. Bhali[65] discussion was as under: -

“29. Presently, we shall refer as to how this Court has dealt withconcept of fraud. In S.B. Noronah v. Prem Kumari Khanna[66]while dealing with the concept of estoppel and fraud two-JudgeBench has stated that: (SCC p. 58, para 20)

“20. It is an old maxim that estoppels are odious, althoughconsiderable inroad into this maxim has been made by modernlaw. Even so, ‘a judgment obtained by fraud or collusion, even,it seems, judgment of the House of Lords, may be treated asa nullity’. (See Halsbury’s Laws of England, Vol. 16, 4th Edn.,para 1553.) The point is that the sanction granted under Section21, if it has been procured by fraud or collusion, cannot withstandinvalidity because, otherwise, high public policy will be givenas hostage to successful collusion.”

30. In S.P. Chengalvaraya Naidu v. Jagannath[67] this Courtcommenced the verdict with the following words: (SCC p. 2, para1)

“1. ‘Fraud avoids all judicial acts, ecclesiastical or temporal’observed Chief Justice Edward Coke of England about threecenturies ago. It is the settled proposition of law that judgmentor decree obtained by playing fraud on the court is nullity andnon est in the eye of the law. Such judgment/decree—by the

65 (2012) 11 SCC 574

66 [(1980) 1 SCC 52 : AIR 1980 SC 193]

67 [(1994) 1 SCC 1]

Afirst court or by the highest court—has to be treated as nullityby every court, whether superior or inferior. It can be challengedin any court even in collateral proceedings.”

In the said case it was clearly stated that the courts of law aremeant for imparting justice between the parties and one whoBcomes to the court, must come with clean hands.”

32. In Shrisht Dhawan v. Shaw Bros.[68] it has been opined thatthe fraud and collusion vitiate even the most solemn proceedingsin any civilised system of jurisprudence. It has been defined as anCact of trickery or deceit. The aforesaid principle has been reiteratedin Roshan Deen v. Preeti Lal[69], Ram Preeti Yadav v. U.P. Boardof High School and Intermediate Education[70] and RamChandra Singh v. Savitri Devi[71].

33. In State of A.P. v. T. Suryachandra Rao[72] after referring toDthe earlier decision this Court observed as follows: (SCC p. 155,para 16)

“16. In Lazarus Estates Ltd. v. Beasley[73] Lord Denningobserved at QB p. 712:

E‘… No judgment of court, no order of minister, can beallowed to stand if it has been obtained by fraud. Fraud unravelseverything.’

In the same judgment Lord Parker, L.J. observed that fraud‘vitiates all transactions known to the law of however high aFdegree of solemnity’ (Lazarus case[74], QB p. 722).”

34. Yet in another decision Hamza Haji v. State of Kerala[75] ithas been held that no court will allow itself to be used as aninstrument of fraud and no court, by way of rule of evidence and

68 [(1992) 1 SCC 534 : AIR 1992 SC 1555]G69 [(2002) 1 SCC 100 : 2002 SCC (L&S) 97 : AIR 2002 SC 33]70 [(2003) 8 SCC 311]71 [(2003) 8 SCC 319]72 [(2005) 6 SCC 149]73 [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341]74 [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341]H75 [(2006) 7 SCC 416 : AIR 2006 SC 3028]

procedure, can allow its eyes to be closed to the fact it is beingused as an instrument of fraud. The basic principle is that partywho secures the judgment by taking recourse to fraud should notbe enabled to enjoy the fruits thereof.

38. All these reasonings are absolutely non-plausible and commonsense does not even remotely give consent to them. It is fraudulentall the way. The whole thing was buttressed on the edifice offraud and it needs no special emphasis to state that what ispyramided on fraud is bound to decay. In this regard we mayprofitably quote statement by great thinker:

“Fraud generally lights candle for justice to get look at it;and rogue’s pen indicts the warrant for his own arrest.” “

38. We heard the learned Solicitor General, the learned SeniorCounsel for Smriti and Mr. Anunaya Mehta (who had earlier representedPerry) as an Officer of the Court.

(A) The learned Solicitor General submitted that as the order ofcustody was obtained by Perry by practising fraud upon the Court, notonly the Judgment dated 28.10.2010 and the Order dated 08.12.2020 berecalled but the Guardianship Proceeding initiated by Perry be alsodismissed. It is submitted that the conduct exhibited by Perry would callfor initiation of proceeding in contempt and an appropriate notice beissued to him. It was further submitted that the custody of Aditya soobtained by Perry and continues to be illegal and invalid. In his submission,now that Aditya is in Kenya, certain proceedings might have to be initiatedby Smriti in Kenya apart from defending the proceeding initiated byPerry in Kenya. He submitted that the Indian High Commission in Kenyawould provide all logistical support to Smriti in such action(s) to be initiatedor defended by her.

(B) Mr. Amarjit Singh Chandhiok and Ms. Sonia Mathur, learnedSenior Advocates appearing for Smriti supported the submissions of thelearned Solicitor General that the Judgment dated 28.10.2010 and Orderdated 08.12.2020 passed by this Court be recalled and proceeding inContempt jurisdiction be initiated. They further submitted that since thecustody of Aditya was obtained in fraudulent manner, Central Bureauof Investigation be directed to register crime against Perry for havingcommitted criminal offences punishable under Sections 361, 362 and

A363 of the IPC[76]. It was also submitted that the learned Solicitor Generalbe asked to make appropriate request to the Attorney General for Kenyaso that the process would be expedited and Aditya would be broughtback as early as possible.

(C) Mr. Anunaya Mehta, learned Advocate fairly accepted thatBthe conduct of Perry was indefensible and supported the course of actionsuggested by the learned Solicitor General.

39. Though, at every juncture solemn undertakings were given byPerry to the High Court and this Court, such undertakings were not onlyflagrantly violated but stand is now taken challenging the very jurisdictionCof the Indian Courts, despite having submitted himself to the jurisdictionof the Indian Courts. Such conduct, prime facie, can certainly be saidto be contumacious calling for an action in contempt jurisdiction. Moreover,the non-disclosure of material facts by Perry at the relevant juncturesalso shows that he approached the Indian Courts with unclean hands.

D40. It was only on the basis of the solemn undertakings given byPerry and the order dated 09.11.2020 passed by the High Court of Kenyaat Nairobi which was projected to be “Mirror Order” in compliance ofthe directions issued by this Court, that the custody of Aditya was directedto be handed over to Perry. Since the false and fraudulent representationsmade by Perry were the foundation, on the basis of which this CourtEwas persuaded to handover custody of Aditya to him, it shall be the dutyof this Court to nullify, in every way, the effect and impact of the orderswhich were obtained by playing fraud upon the Court. All the decisionsreferred to hereinabove point in that direction. This Court would thereforebe well within its power and justified to recall all the orders and continueFto assume jurisdiction to ensure that the situation as it prevailed prior tothe passing of the orders by the Trial Court, the High Court and thisCourt, gets restored, whereafter appropriate decision can be taken inparens patriae jurisdiction.

41. It is true that Aditya is now in Kenya. But he was taken toGKenya only on the basis of fraudulently obtained orders from this Court.In our considered view, the Indian Courts which were the Courts of firstcontact and had complete jurisdiction over Aditya, must continue toexercise such power and jurisdiction to correct the wrongs which occurredas result of fraudulent conduct on part of Perry. It may be stated here

that at every juncture, welfare of Aditya was and will always continueto be the primary consideration for the Indian Courts. He was interviewedby very competent and qualified Counsellors whose reports andassessments have been part of the record. Aditya was also interviewedby the Trial Court, the High Court and this Court. At no stage anymistreatment by Smriti was even remotely suggested or adverted to byAditya. After Aditya is brought back to this country, this Court will certainlyhave appropriate interactions with Aditya to understand his wishes whileconsidering his welfare.

42. In the premises, we pass following directions: -

(A) The Judgment dated 28.10.2020 and the Order dated08.12.2020 passed by this Court are recalled.

(B) The Guardianship Petition No.53 of 2012 filed by Perry in theDistrict Court, Saket, New Delhi seeking permanent custody of Adityaand the resultant proceedings arising therefrom including MAT APP(F.C.) No.30 of 2018 filed in the High Court, are dismissed.

(C) The Orders granting custody having been recalled, the custodyof Aditya with Perry is declared to be illegal and ab initio void.

(D) Issue notice to Perry as to why proceedings in contemptjurisdiction be not initiated against him for having violated the solemnundertakings given to this Court, returnable on 16[th] November, 2021.The Registry is directed to register Suo Motu Contempt Case and proceedaccordingly.

(E) The notice shall additionally be served through e-mail directedat the e-mail id used by Perry in communicating with Smriti. The detailsin that behalf shall be furnished to the Registry by Smriti within twodays.

(F) The Central Bureau of Investigation, New Delhi through itsDirector is directed to initiate appropriate proceedings by registeringcriminal proceedings against Perry and to secure and entrust the custodyof Aditya to Smriti.

(G) The Secretary, Ministry of External Affairs, Government ofIndia, New Delhi and the Indian Embassy in Kenya are directed to ensurethat all possible assistance and logistical support is extended to Smriti insecuring the custody of Aditya.

A(H) From and out of the amount of Rs.1 crore deposited by Perryin this Court, at this stage, an amount of Rs.25 lakhs be handed over toSmriti towards legal expense incurred or required to be incurred hereafter.Rest of the money shall continue to be kept in deposit with the Registrytill further orders.

B43. With these directions, Miscellaneous Application No.1167 of2021 and connected Interim Applications are disposed of.

Divya Pandey

Application disposed of.