Smriti Madan Kansagra vs Perry Kansagra on 7 October, 2021


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Supreme Court of India

Smriti Madan Kansagra vs Perry Kansagra on 7 October, 2021

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, Hemant Gupta, Ajay Rastogi

                                                                                            1


                                                                              REPORTABLE

                                     IN THE SUPREME COURT OF INDIA
                                      CIVIL APPELLATE JURISDICTION

                            MISCELLANEOUS APPLICATION NO.1167 OF 2021
                                                IN
                                   CIVIL APPEAL NO.3559 OF 2020


          SMRITI MADAN KANSAGRA                                        ...APPELLANT

                                                     VERSUS

          PERRY KANSAGRA                                               …RESPONDENT

                                                     ORDER

UDAY UMESH LALIT, J.

1. Civil Appeal No.3559 of 2020 arose from Guardianship Petition filed

by Perry Kansagra (hereinafter referred to as ‘Perry’), father of minor

named Aditya Vikram Kansagra (hereinafter referred to as ‘Aditya’),

under Sections 7, 8, 10, 11 of the Act1 before the District Court, Saket,

New Delhi. Perry is a person of Indian origin and Gujarati by descent.

His grandfather migrated to Kenya in 1935 and settled there. The family

has business interests in Kenya and United Kingdom. Perry holds dual

citizenship of Kenya as well as United Kingdom. Perry got married to

Smriti Madan Kansagra (hereinafter referred to as ‘Smriti’), an Indian
Signature Not Verified

Digitally signed by

citizen, on 29.07.2007 at New Delhi.

Indu Marwah
Date: 2021.10.07
17:24:21 IST
Initially, the couple stayed at
Reason:

1

The Guardianship and Wards Act, 1890
2

Nairobi, Kenya but Smriti returned to India in 2009. The couple was

blessed with a son – Aditya on 02.12.2009 at New Delhi. Except for a

brief period when the couple had gone to Kenya in 2012, Aditya always

stayed with Smriti in Delhi till the disposal of aforestated Civil Appeal

No.3559 of 2020.

2. On 26.5.2012, Civil Suit (O.S.) No.1604 of 2012 was filed by Smriti

against Perry and his parents in the High Court2 seeking following reliefs:

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

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

(c) Pass a decree of permanent injunction restraining the Defendants, their
agents, representatives, servants and/ or attorneys in perpetuity from meeting
Plaintiff No.1 without the consent/ presence of Plaintiff No.2”

3. On 25.05.2012, an ex-parte ad-interim order was passed by the

High Court restraining Perry from removing Aditya from the custody of

his mother. In this suit, I.A. No.12429 of 2012 was filed by Perry seeking

access to Aditya. Though Smriti was not averse to Perry’s meeting Aditya,

it was submitted that the meetings be held only under her supervision.

By its order dated 13.07.2012, the High Court permitted Perry to meet

2
The High Court of Delhi at New Delhi
3

Aditya under the supervision of Smriti. Similar orders were passed from

time to time.

4. On 06.11.2012, Perry filed Guardianship Petition No.53 of 2012

before the District Courts, Saket, New Delhi praying inter alia:

“a. Declare the petitioner who is natural father of the minor child master
Aditya Vikram Kansagra as the legal guardian under Section 7 of the
Guardianship and Wards Act, 1890;

b. Grant the permanent custody of the minor child master Aditya Vikram
Kansagra to the Petitioner;

c. Pending the hearing and final disposal of the Suit, the Petitioner may be
allowed to take minor child master Aditya Vikram to visit his parental home
in Kenya MS, 166, 167, James Gichuru Road, Lavington Green, Nairobi,
Kenya;

d. Pending the hearing the final disposal of the Suit, the Petitioner may be
allowed to take minor child master Aditya Vikram for all holidays summers/
Diwali/ Christmas and any other holiday in India and abroad.”

5. During the pendency of these proceedings, Aditya was admitted to

Delhi Public School, Mathura Road, New Delhi. On 31.08.2015, both the

parties submitted before the High Court that they would pursue their

remedies in the pending guardianship proceedings before the Family

Court and that the suit be disposed of. The suit was accordingly disposed

of on 31.08.2015.

6. By various orders the visitation schedule was modified by the

Family Court from time-to-time permitting Perry to have access to and

enjoy visitation with Aditya. The interim proceedings taken up in the
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Guardianship Proceedings were adverted to in detail in the majority

decision of this Court dated 28.10.2020 while disposing of Civil Appeal

No.3559 of 2020.

7. By its judgment and order dated 12.01.2018, the Family Court

allowed the Guardianship Petition and granted custody of Aditya to Perry

which was to come into effect after the end of academic session 2017-

2018.

8. Smriti being aggrieved, challenged the decision of the Family Court

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 and order dated

25.02.2020. The High Court affirmed the decision that the custody of

Aditya be granted to Perry. By a separate order passed on the same date,

it recorded that Perry was willing to file an undertaking of his mother,

holding an Indian passport to ensure compliance of the Order of the

Family Court granting visitation rights to Smriti. It also directed Perry to

swear an undertaking before the Indian Embassy in Kenya to the effect

that he would submit to the jurisdiction of the Indian Courts; which

undertaking would then be filed in the proceedings, in token of his

acceptance of the Order.

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The High Court also passed following additional directions:

“(i) Perry shall apply for a Kenyan passport for the child, if not already 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 a mutually agreed time which is least
disruptive to the schooling and other activities of the child;

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

(iv) In addition to the grant of temporary custody of the child to Smriti during
summer and winter vacations on the dates to be mutually 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 travel from India once a year and accommodation for seven days;

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

9. In view of the directions of the High Court, following undertaking

was sworn by Perry in Kenya and filed in the High Court:-

“I Mr. Perry Kansagra S/o Shri Mansukh Lal Patel, aged about 45 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 of Order dated
25.02.2020 passed by Hon’ble High Court of Delhi in Mat. App. (F.C.) No.30
of 2018.

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

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

Sd/-

DEPONENT”
6

10. The aforestated decision of the High Court was challenged by Smriti

by filing Civil Appeal No.3559 of 2020 in this Court, which appeal 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 have considered it
necessary to direct Perry to obtain a mirror order from the concerned court in
Nairobi, which would reflect the directions contained in this Judgement.

(b) Given the large number of cases arising from transnational parental
abduction in inter-country marriages, the English courts have issued
protective measures which take the form of undertakings, mirror orders, and
safe harbour orders, since there is no accepted international mechanism to
achieve protective measures. Such orders are passed to safeguard the interest
of the child who is in transit from one jurisdiction to another. The courts have
found mirror orders to be the most effective way of achieving protective
measures.

(c) The primary jurisdiction is exercised by the court where the child has been
ordinarily residing for a substantial period of time, and has conducted an
elaborate enquiry on the issue of custody. The court may direct the parties to
obtain a “mirror order” from the court where the custody of the child is being
shifted. Such an order is ancillary or auxiliary in character, and supportive of
the order passed by the court which has exercised primary jurisdiction over
the custody of the child. In International Family Law, it is necessary that
jurisdiction is exercised by only one court at a time. It would avoid a situation
where conflicting orders may be passed by courts in two different jurisdictions
on the same issue of custody of the minor child. These orders are passed
keeping in mind the principle of comity of courts and public policy. The
object of a mirror order is to safeguard the interest of the minor child in transit
from one jurisdiction to another, and to ensure that both parents are equally
bound in each State.

The mirror order is passed to ensure that the courts of the country where
the child is being shifted are aware of the arrangements which were made in
the country where he had ordinarily been residing. Such an order would also
safeguard the interest of the parent who is losing custody, so that the rights of
visitation and temporary custody are not impaired.”

Hemant Gupta, J., authored a dissenting view with following

observations:-

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

11. In the light of its discussion, the directions issued in paragraphs

20 to 22 in the majority decision of this Court were:-

“(a) We direct Perry Kansagra to obtain mirror order from the concerned court
in Nairobi to reflect the directions contained in this judgement, within a period
of 2 weeks from the date of this judgment. A copy of the Order passed by the
court in Nairobi must be filed before this Court;

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

If this Court is satisfied that Perry has discharged all his obligations in
terms of the aforesaid directions of this Court, the aforesaid amount shall be
returned with interest accrued, thereon to the respondent;

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

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

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

8

(f) Smriti would be provided with access and visitation rights for 50% once
in a year during the annual vacations of Aditya, either in New Delhi or Kenya,
wherever she likes, after due intimation to Perry;

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

(h) Smriti will not be entitled to take Aditya out of Nairobi, Kenya without the
consent of Perry;

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

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

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

12. Direction (C) issued in paragraph 20 of the majority decision was

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 to take Aditya

to Kenya on the strength of a one-time travel document issued by the

High Commission of Kenya in New Delhi and to apply for and obtain a

Kenyan Passport after arrival of Aditya in Kenya.

13. On 30.10.2020, Perry filed an undertaking in this Court submitting

that he would abide by and comply with all the directions contained in
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the majority decision dated 28.10.2020, without any demur, and in letter

and spirit. The undertaking which was sworn in Kenya was: –

“I am Perry Kansagra s/o Shri Mansukh Lal Patel, aged about 45 years, 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 I am conversant
with the facts and circumstances of the present case and competent to
swear the present affidavit.

2. I am executing the present undertaking in compliance of Judgment
dated 28.10.2020 passed in the aforesaid matter.

3. I truly and faithfully undertake to abide and comply with all the
directions as mentioned in the Judgment dated 28.10.2020 passed by
this Hon’ble Court without demur and in its letter and spirit.”

Similarly, Smriti also filed an undertaking on 05.11.2020

undertaking to abide by and comply with the directions of this Court

without any demur.

14. On 30.10.2020, Perry moved an Originating Summons in the High

Court of Kenya at Nairobi seeking registration of the Judgment dated

28.10.2020 passed by this Court and for obtaining ‘Mirror Order’. The

title of the application and the opening recitals were:-

“REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY 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 SUPREME COURT OF
INDIA
ISSUED ON 28th OCTOBER 2020
AN
IN THE MATTER OF AVK (A CHILD)
10

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
BY
PERRY KANSAGRA——————-EX PARTE APPLICANT

Originating Summons
[Under Sections 3, 4, 5 & 6 of the Foreign Judgments (Reciprocal
Enforcement) Sections 4, 22, 113 of the Children Act and Articles 53 of The
Constitution of Kenya 2010, the Inherent Powers of the Court and all Enabling
Provisions of the Law].

LET ALL PARTIES CONCERNED attend the Honourable Judge in
Chambers for the hearing of this application which is issued on the application
of PERRY KANSAGRA of Post Office Box Number 76817 – 00620, Nairobi
for orders:

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

2. THAT the judgment delivered by the Supreme Court of India in
Supreme Court Civil Appeal No.3559 of 2020 – Smriti Madan Kansagra
v. Perry Kansagra
be registered.

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

After referring to the directions issued by this Court, the

application stated :-

“7. That the application is brought in the best interest of the child and
to facilitate his return to Kenya to be reunited with his father and family.

8. That the orders sought are necessary to facilitate the taking of such
other steps and proceedings as ordered by the Supreme Court in
India….”

15. The Order dated 09.11.2020 passed by the High Court of Kenya 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
11

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 (A CHILD)
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
BY
PERRY KANSAGRA ————————Exparte APPLICANT
IN COURT ON 9th DAY OF NOVEMBER 2020
BEFORE HON. MR. JUSTICE A.O. MUCHELULE

ORDER

THIS MATTER coming up for hearing UNDER CERTIFICATE OF
URGENCY before Hon. Justice A.O. Muchelule; AND UPON READING
the application;

IT IS HEREBY ORDERED;

1. THAT application certified urgent.

2. THAT the order of the Supreme Court of India issued on 28.10.2020 is
hereby registered as prayed.

GIVEN under my hand and the seal of this Court this 9th day of 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 of 2020

seeking modification of certain directions issued by this Court in

paragraph 20 of the majority decision, which application was disposed

of by this Court by its Order dated 08.12.2020. Some of the

submissions raised by Smriti may be set out here for facility:-

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

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

16.1 The aforestated submissions were dealt with by this Court in its

Order dated 08.12.2020 as under: –

“(iii) With regard to the issue at placitum ‘d’, the learned counsel for the
respondent has accepted that having given an undertaking to this Court, the
respondent has subjected himself to the jurisdiction of this Court. Mr. Shyam
Divan, learned Senior Advocate for the appellant however relied upon
paragraph 3 of the undertaking dated 02.03.2020 given to the High Court to
emphasize the absence of such clear stipulation in the present undertaking
regarding submission to the jurisdiction of the Indian Courts. Though, we
accept the submission made by the learned counsel for the respondent, it is
hereby clarified that paragraph 3 of the undertaking given by respondent dated
02.03.2020 to the High Court shall continue to be operative, in addition to the
undertaking given to this Court.

(iv) In the context of the matter mentioned against placitum ‘e’, it must be
stated that this Court did not deem it appropriate to bind the paternal
grandmother of Aditya, because of the various other directions issued in the
Judgment, including the one requiring the respondent to obtain a Mirror Order.

The High Court had not insisted upon furnishing of any Mirror Order and,
therefore, the direction to have the affidavit of the grandmother who is an
Indian citizen, was issued. However, the direction to obtain a Mirror Order
was taken to be sufficient security by this Court, to take care of any
apprehension that the respondent may not fulfil the obligations cast upon him
by the Judgment.”

16.2. With regard to the issue regarding mirror order, the rival

submissions as well as the findings of this Court were as under:-

“8. We now turn to the issue regarding Mirror Order. It is submitted by Mr.
Divan, learned Senior Advocate for the appellant that what is contemplated
by the directions issued in the Judgment is a binding and valid Mirror Order.
In his submission, the Mirror Order must, in all respects, be one which is fully
enforceable, and on which complete reliance can be placed by this Court. He
has invited our attention to the Foreign Judgments (Reciprocal Enforcement)
13

Act, CAP, 43 enacted by the Parliament of Kenya (“the Act”, for short) to
make provisions for the enforcement of judgments given in countries outside
Kenya which accord reciprocal treatment to judgments given in Kenya and for
other purposes in connection therewith.

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

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

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

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

D) Since the Act itself will not apply to proceedings in connection with the
custody or guardianship of children, the registration of the Judgment
under the Act will be without any consequence in law.
E) Any submission about validity of registration can be taken by a
judgment debtor in terms of Section 10 of the Act and have the
registration set aside.

It is thus submitted that mere registration of the Judgment will not make it
enforceable. Reliance is placed on a legal opinion given by Ms. Rubeena Dar
a practising lawyer in Kenya. A copy of Mirror Order dated 14.05.2018 issued
by Superior Court, J.D. of Stamford, Norwalk pursuant to the directions of the
High Court of Delhi in Dr. Navtej Singh vs. State of NCT and another3 is
also relied upon to submit what a Mirror Order must normally contemplate
and provide. The relevant portion of said Order dated 14.05.2018 reads:-

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

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

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

4. The minor children shall remain in the custody of Jasmeet Kaur,
and the Plaintiff shall have reasonable interim visitation with the minor
children as agreed or Court ordered upon the minor children’s return
with Jasmeet Kaur to Connecticut, until further custody orders are
determined by the Connecticut Superior Court after granting adequate
opportunity of hearing to both the parties.

3

(2018) SCC OnLine Del 75-11 – which was affirmed by this Court in (2019) 17 SCALE 672
14

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

6. That Attorney William Taylor is hereby appointed as escrow agent
pursuant to Exhibit C to the Motion for Order (Tab 3 of Exhibit 2).”

9. On the other hand, Mr. Anunaya Mehta, learned Advocate for the
respondent has relied upon the provisions of the Judicature Act of Kenya
which empower the High Court of Kenya to exercise jurisdiction in
accordance with common law principles and doctrine of equity and upon
Article 2(5) of the Constitution of Kenya, 2010, which recognizes the general
rules of international law as forming part of laws of Kenya. The opinion given
by M/s. GMC Advocates is also relied upon, the relevant portion of which
reads as under:-

“Reference may additionally be had to the provisions of Sections 4, 22
and 113 of the Children’s Act 2010 and Article 53 of the Constitution
of Kenya 2010 which provide that the best interest and welfare of the
child is paramount which would justify grant of orders in the nature of
mirror orders.

A Mirror Order is issued by another Court which contains the same
terms as those that are contained in the Order being mirrored. It is the
practice in Courts in Kenya that a Mirror Order is granted by
registration of entire Judgment of the Foreign Court by the Court in
Kenya. This is done so as to avoid any variation in context, form or
substance. The registration of the Foreign Judgment by the Court of
Kenya is itself the Mirror Order. Nothing further is required.

Reference may be had to Judgment In Re Matter of I W P (Infant)
[2013] eKLR) where in a matter concerning a judgment passed by
foreign court in relation to custody and guardianship of a minor, the
High Court of Kenya at Nairobi had granted a mirror order.

Having regard to the law applicable in Kenya, the application for grant
of a mirror order in accordance with the directions contained in the
judgment dated 28-10-2020 passed by supreme Court of India in case
titled as “Smriti Madan Kansagra vs. Perry Kansagra” [CA No.
3559/2020] was made on 09-11-2020 before the High Court of Kenya
at Nairobi. The application was an ExParte application, as the orders
sought were noncontentious in nature, given the fact that the matter was
extensively and conclusively dealt with by the Supreme Court of India
and only Mirror Order was sought from High Court of Kenya at
Nairobi.

The application for grant of a mirror order was allowed by the High
Court and the judgment dated 28-10-2020 passed by Supreme Court of
15

India in case titled as “Smriti Madan Kansagra vs. Perry Kansagra” [CA
No.3559/2020] was registered in its entirety by order dated 09-11-2020.

Accordingly, the order dated 09-11-2020 issued by High Court of
Kenya at Nairobi in case bearing No. HCFOS/E031 of 2020 whereby
the judgment dated 28-10- 2020 passed 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 a mirror order in compliance with
the said judgment.”

10. Having considered the rival submissions, in our view, the Order passed by
the High Court of Kenya respectfully deserves and must be shown due
deference. Nothing turns on the form and format of the Order, so long as the
High Court of Kenya was apprised of all the facts, and the context in which it
was approached, for compliance of the directions passed by this Court in the
Judgment. Since the registration of the Judgment passed by this Court 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 the direction to obtain a Mirror Order
issued from a competent court in Kenya. The fact that the registration was
given at the instance of the respondent and the unconditional undertaking
given by the respondent to this Court, are sufficient compliance of the
directions issued by this Court.”

16.3. In the end, following directions were issued by this Court in its

Order dated 08.12.2020:-

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

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

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

D) The respondent is not required to obtain any fresh Mirror Order in respect
of the aforesaid additional direction, before Aditya is taken to Kenya, and
it shall be sufficient if an appropriate application to have this Order
registered, in the same manner as the Judgment was registered, is
preferred within two weeks of Aditya reaching Kenya, and the copy of
such registration is thereafter filed in this Court at the earliest.

E) After filing of the further affidavit as stated above, the respondent shall
be at liberty to take Aditya to Kenya as directed earlier in the Judgment.”
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17. Perry filed an undertaking dated 09.12.2020 in this Court that he

would abide by the Order dated 08.12.2020. The undertaking was as

under: –

“I Mr. Perry Kansagra s/o Shri Mansukh Lal Patel, aged about 45 years, r/o
167 James Gichuru Road, Lavington Green, Nairobi, Kenya presently in
Delhi, India do hereby solemnly affirm and state on oath as under: –

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

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

3. I state that I shall truly and faithfully abide by the Order dated 08.12.202
and additional direction issued in paragraph 20 of the Order dated 08.12.2020
passed by this Hon’ble Court.”

18. In the aforestated circumstances, in terms of the orders issued by

this Court, custody of Aditya was handed over to Perry and Aditya was

taken by Perry to Kenya in December 2020.

19. On 29.07.2021, Miscellaneous Application No.1167 of 2021 was

filed by Smriti in Civil Appeal No.3559 of 2020 with following assertions:-

“5. This Hon’ble Court had directed that the Appellant also be granted
additional access to Aditya, i.e. two trips of one week each to Kenya to meet
Aditya. Accordingly, Appellant sought additional access to the child during
the Easter break falling in April, 2021 in terms of para 21 of the judgement
dated 28.10.2020. The Appellant requested the Respondent to facilitate access
and visitation in Kenya for a week in April during Aditya’s Easter Holidays.
However, the said access could not take place. Copy of the email dated
30.03.2021issued by the Respondent cancelling the visitation during easter is
annexed hereto and marked as Annexure P-3 (pg. no. 161 to 162).

6. Though the custody of Aditya was given to the Respondent father vide the
judgment dated 28.10.2020, the Appellant’s/mother was granted visitation and
access rights to the child. This Hon’ble Court ensured that both parents were
17

equally involved in the development of Aditya and protected the Appellant’s
rights such as including her in the school records and having access to Aditya’s
school and participation, when possible, in school events etc. The Respondent
is not complying with the orders passed by this Hon’ble Court. The Appellant-
mother’s access and visitation is slowly being reduced. The Appellant’s weekly
access over Skype has been reduced from 1 hour to 20 minutes a week.

7. That Aditya has not met the Appellant in last 7 months. This Hon’ble Court
had also directed that Appellant was entitled to 50% of the annual vacation.
The Respondent is obstructing the Appellant’s access rights to Aditya. Hence,
the Appellant is constrained to file the present application seeking compliance
of the directions of this Hon’ble Courtin relation to the Appellant’s access
rights during summer vacation wherein Aditya is to be in the temporary
custody of the Appellant for 50% of the summer vacations. Aditya’s school
summer vacations have started and the Appellant’s precious time with Aditya
is being lost. The obstruction of the Respondent is made evident by the
following facts:

a. In terms of judgment dated 28.10.2020, the Appellant wrote an email
to the Respondent on11.07.2021informing the Respondent that she
would like Aditya to visit India 01.08.2021 to 27.08.2021, i.e., 50% of
his summer vacation falling between 10.07.2021 to 01.09.2021. A copy
of the email dated11.07 .2021is annexed hereto and marked as
Annexure P-4 (pg. no. 163).

b. b. That the Appellant received no reply to her email dated 11.07.2021
and was constrained to issue an urgent reminder to the Respondent vide
email dated 15.07.2021 wherein the Appellant reiterated her request to
the Respondent of urgently confirming the dates of Aditya’s visit to
India, in terms of the judgement dated 28.10.2020 and order dated
08.12.2020. A copy of email dated 15.07.2021 is annexed hereto and
marked as Annexure P-5 (pg.no. 164)

c. That the Respondent vide his email dated 16.07.2021 informed the
Appellant that the summer vacation visitation would not be possible.
The Respondent declined to comply with the directions of this Hon’ble
Court in view of the ongoing Covid-19 pandemic and for the one-year
mourning period being undertaken by Aditya and the Respondent for
the Respondent’s father wherein the Respondent and his family
including Aditya have purportedly decided not to travel or go to any
hotels. A copy of email dated 16.07.2021is annexed hereto and marked
as Annexure P-6 (pg. no. 165 to 166)

d. The Appellant reiterated her request of sending Aditya to India vide
email dated 21.07.2021. The Appellant assuaged the Respondent’s
unreal fears and informed him that Covid-19 cases in Delhi have
drastically reduced, and the situation has improved in Delhi. The cases
are on an all-time low in Delhi as compared to April-May 2021.
Appellant, being Aditya’s mother is concerned about his safety and
18

health and only made a request for visitation when the situation
regarding Covid-19 cases improved in Delhi. The Appellant also
suggested that she was open to working out an arrangement which
would be safest and best for Aditya. The copy of the email dated
21.07 .2021 is annexed hereto and marked as Annexure P-7 (pg. no. 167
to 168)

e. The Respondent, instead of working out a solution and arrangement for
Aditya to meet the Appellant replied vide email on 24.07.2021 in a
bitter, unpleasant and aggressive manner and again denied the
Appellant’s request. A copy of email dated 24.07.2021is annexed hereto
and marked as Annexure P-8 (pg. no. 169 to 171).

… … …

13. Thus, in view of the above, the present application is being moved for
necessary directions directing the Respondent to comply with the judgment
dated 28.10.2020 and order dated 08.12.2020 and facilitate Aditya’s meeting
with the Appellant. The said directions are necessary for the welfare and best
interests of the child. The vacation visitation shall ensure that Aditya has a
real and effective contact with the mother.”

20. The application thus prayed:-

“(a) Pass an order directing the Respondent to comply with the
judgment dated 28.10.2020 and order dated 08.12.2020 by facilitating
Aditya’s vacation access to the Appellant: inter alia for breach relating to the
direction of Aditya being in the temporary custody 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 and continues till
02.09.2021. I would like to have Aditya visit me from 01.08.2021 to
27.08.2021. (half of the summer vacation as granted to me by the Hon’ble
Supreme Court).

Kindly confirm the same by email.

Regards

Smriti”
19

Email dated 15.07.2021

“Dear Perry,

Please refer to my email dated 11.07.2021, wherein I had urgently requested
you to confirm the dates of travel for Aditya to visit me during his summer
break ‘2021 in terms of the Hon’ble Supreme Court order. I had suggested 1st
Aug 2021 to 27th Aug 2021.

Furthermore, I am informed that an Air India flight (bubble flight) once a week
(apparently on every Friday) is functional from Kenya to Delhi via
Ahmedabad. Kindly arrange for him to visit me on 23rd July 2021 or 30th July
2021or 6th August 2021 for half of his summer 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 the midst of a
major pandemic and throughout the World, Covid Variants like Delta, Delta
Plus, Lambda and Kappa are rampant and causing unprecedented infections
and deaths.

India has gone through a brutal and lethal Second Wave of Covid which has
caused unprecedented deaths in India. There are scientific predictions that
India is going to have a Third Wave of Covid Pandemic sometime in August
2021 and the third wave is likely to infect children more.

Several Countries World over including the UK, Russia, France, Italy,
Holland, Germany and Bangladesh amongst many, many others have been
experiencing the third wave of Covid. The signs of the Third wave of Covid
are also evident as some states in India have already started seeing a rise in
the number of Covid cases. Aditya is aged 12 years and is very well aware of
Covid situation and he is very conscious for the safety of himself and his
family.

I would also like to inform you that all passenger flights between Kenya and
India are suspended due to Covid. You are also aware that due to Covid,
Aditya has recently lost his Paternal grandfather. There is a year long
mourning in the family and Aditya has chosen not to celebrate any events and
also not to travel. Since this Pandemic has caused an irreparable loss to my
20

Family, for the safety and well being of Aditya it is not in the interest of Aditya
to travel. As you know, there is no Vaccine for children yet.

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

Your Information with respect to operation of passenger flights by Air India
is extremely incorrect. Air India is operating flights only 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 constrained to inform you
that Summer vacations visitation with Aditya would not be possible.

Regards.

Perry”

Email dated 21.07.2021

“Dear Perry

Pretty surprised to note the aggressive content in your response dated 16th July
2021 to my email. After all, I am only seeking compliance of the Hon’ble
Supreme Court order. Why do you want to make this adversarial?

You pressed for an urgent hearing of the appeal in the Supreme Court in the
midst of the pandemic. The Hon’ble Supreme Court permitted you the custody
of Adu in middle of pandemic on your asking. You travelled to India from
Kenya with your revered now dear departed father in order to take the custody
of Adu and then took him to Kenya; all during the pandemic. Clearly all your
pandemic related pretexts to not comply with the Hon’ble Supreme Court
order are just afterthoughts. And yes, Aditya travelled with you to Kenya in
December 2020, very much during the pandemic when there were limited
flights permitted, just as in the present situation.

21

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

Being Aditya’s mother, I am most careful and concerned about his safety and
security. Please be assured that I will never compromise Aditya’s safety. It has
been seven months since Aditya has met his mother and grandmother, who he
is extremely close to. Continued physical separation from his mother and
grandmother shall have an adverse impact on Aditya.

No doubt that the second wave in India was brutal, but cases in Delhi have
reduced drastically and presently there are on an average only 40 new cases
being reported. Positivity of the virus is only 0.1%. Large number of the
population in Delhi have also got vaccinated. All over India the cases are
constantly coming down. There is no requirement of a lockdown nor indeed
is there one in Delhi. Even national institutions are opening physically. The
second wave of covid is all but finished in India. Moreover, my mother and I
are also fully vaccinated. In fact the situation in Delhi regarding Covid-19
cases may be relatively better than in Nairobi, Kenya. There is no third wave
in India. Chances of a possible third wave in India, even if it were to occur, is
only expected in late September and October 2021. This is as per the Indian
Council for Medical Research; the Apex Medical Body in this regard. There
are even chances that the third wave may not occur at all. The child’s right to
meet his mother cannot be violated on such distant apprehensions. Your
approach is casual and dismissive.

Your revered father’s demise was really sad. I have extended my heartfelt
condolences to you and your family. I reiterate them to you. May his soul rest
in peace. I pray that you and your mother find strength to navigate through
this difficult time. However, for a child to meet his mother is nothing to do
with breach of mourning that your family may be undertaking. For my child
to meet me cannot be seen to be a breach of any custom of your family!
Moreover, Aditya meeting his mother and grandmother will only being him
love and warmth which is in fact necessary for Aditya right now.

Your email completely denying Aditya’s access to his mother and
grandmother is not only against the best interest of Aditya but is also
unreasonable and unfair. Instead of finding a via media or an arrangement
where Aditya can meet his mother and grandmother in the safest possible way,
your absolute denial is nothing but an attempt to alienate Aditya from me.

Your attempt to alienate Aditya is also revealed from your consistent attempt
in reducing Aditya’s weekly skype time from l hour to now 15-20 minutes.
During these Skype sessions Aditya looks like he is being controlled and
appears to be sad and low. You appear to be intending to chip away at the
sacrosanct Supreme Court orders. Not acceptable.

Thus, it is of utmost importance that Aditya is able to meet his mother and
grandmother. Though Delhi is safe now, I am open to working out an
22

arrangement which will ensure maximum security and safety for Aditya. You
are aware that My mother and I stayed in Shimla at our house from April to
June and it was extremely safe. I could take Aditya to Shimla in order to ensure
maximum safety. I am also open to working out any other arrangement
keeping Aditya’s safety in mind. Shimla has negligible covid cases.

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

Eagerly waiting to meet Aditya. Looking forward to your cooperation.

Regards

Smriti”

Email dated 24.07.2021

“Dear Smriti,

Your perpetual habit of living in a hallucination and La La land continues.

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

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

Your concern for safety of Aditya in the email does not match with your
insistence of calling Aditya to India in the present circumstances and Covid
environment. The second wave of Corona is not yet over in India and as a
matter of fact as per The Govt of India, the third wave will hit India between
August and October 2021 (Refer to attached link). If the vaccine was the
answer to the pandemic, then the whole World would have opened way back
and there would not have been severe restrictions and lockdowns. Lockdowns
and restrictions that are increasing by the day.

It seems that your memory is either weak or extremely short, as due to Covid
I also did not have my visitations with Aditya from April 2020 till December
2020. That is 9 months of physical separation of Aditya from me due to Covid
and at that time I never kept writing you emails for visitations because I was
sensible enough to understand the Covid circumstances and restrictions.

23

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

With respect to your reference to Shimla, it is extremely unsafe as the
humungous Tourists visiting Shimla make it unsafe qua Covid. Secondly,
Currently Himachal Pradesh is undergoing massive landslides and road blocks
due to the ongoing Monsoons.

As you will recollect that earlier also I had requested you to mend your ways
with respect to skype meetings with Aditya but you paid no heed to the same.
Please note that the duration of the skype is in the realm of Aditya and nothing
to do with me. In case he is talking to you for 15-20 minutes, it appears that
your conversation is not sufficient enough to keep him engaged during the
skype though you are still having Skype with Aditya every weekend.
Aditya is extremely happy in Kenya, barring the week he lost his grandfather
who was very dear to him. In case Aditya is sad and low during skype talks
with you, it reflects the non interest of Aditya 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-101625903253886.html
I again reiterate my stand that was conveyed to you vide my reply email dated
16-7-2021.

Regards.

Perry”

22. In his reply dated 05.08.2021 which was supported by an affidavit

sworn in Kenya on 05.08.2021, Perry responded as under:-

“1. At the outset, the Respondent seeks to state that there is not even the
remotest intention on his part to disobey or violate the orders passed by this
24

Hon’ble Court including the judgment dated 28.10.2020 passed in the
captioned matter. However, the ensuing circumstances as a result of the
COVID-19 pandemic and its sweep across the World, in the Respondent’s
submission, are such that compliance of the direction in relation to visitation
of the child in India with the Appellant would not be in the best interest of the
health of the child and therefore, the Respondent prays for exemption from
strict compliance of the said direction for the present. …”
… … …

“2. There is also a logistical issue in Aditya travelling to India. The Air-bubble
flight between Kenya and India would not allow Aditya to travel to India from
Kenya since Aditya does not fall under any of the permitted categories of
persons who are entitled to travel to India. Even otherwise the current Covid-
19 environment prevalent in India and in the world is not safe for the child to
undertake long distance travel.”
… … …

“7. The Respondent, however, is not at all averse to the Appellant meeting the
child and is not in any manner intending to deprive the Appellant of her right
of visitation under the orders passed by this Hon’ble Court. If the Appellant
can find an alternative method of travelling to Kenya even at present, the
Respondent would be more than willing to visitation of appellant with child
Aditya in Kenya 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 and vehemently
denied. It is denied that the Respondent is obstructing the Appellant’s access
and visitations, as alleged. Rather, it is only as a result of supervening
circumstances, as explained in detail in the preliminary submissions, that the
Respondent believes that Aditya’s travel to New Delhi will not be in his best
interest and welfare, especially from the point of view of his health, and it is
for this reason that the Respondent prays for exemption from strict compliance
of the direction qua visitation in Delhi at present. Pertinently, the reasons for
a hiccup in the visitation schedule is for reasons completely beyond the control
of the Respondent – similar to the circumstances when the Respondent could
not travel to India for about 9 months i.e. from April 2020 till December 2020
during the pendency of the main appeal before this Hon’ble Court in view of
the Covid-19 pandemic.”

23. In her rejoinder to the aforesaid reply, Smriti appended various

documents dealing with the apprehension expressed by Perry and

submitted: –

25

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

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

3. As far as Aditya taking a flight and being exposed to other fellow
passengers is concerned, Aditya would travel in first class and shall have
minimum exposure just like he did when he travelled from Delhi to Nairobi
in December, 2020. Thus, this fear of the Respondent of Aditya travelling in
a flight is not only misplaced but also unreasonable and self-serving.
Moreover, all international flights are following prescribed covid appropriate
protocol during the flights, similar to the protocol followed in the December
2020 flight taken by Respondent for Aditya while travelling to Nairobi.

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

24. The matter was taken up on 11.08.2021 when the following order

was passed by this Court: –

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

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

In the circumstances, M.A. No.1167 of 2021 has been preferred by the mother
seeing appropriate directions to facilitate Aditya’s vacation access to the
mother.

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

26

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

Mr. Anunaya Mehta, learned advocate submits that the OCI card holder 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, a new passport has been issued in favour of Aditya and the number of
said passport does not appear in the OCI Card of Aditya.

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

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

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

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

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

Thus, there would be no impediment in Aditya’s boarding the flight to 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 Smriti

submitting: –

“4. That the Respondent did not allow Aditya to board the flight on
13.08.2021 and from enquiries made by the Appellant from the Indian High
Commission at Nairobi, the Respondent has not taken any steps to renew
Aditya’s OCI Card Status. To perpetuate and in furtherance of his mala fides,
the Respondent refused to respond to the e-mails issued by the counsel for the
Appellant qua compliance of the aforementioned orders of this Hon’ble Court,
as also blocked the Appellant on WhatsApp and email, and also sought to
withdraw his legal representation in India, a day before the hearing before this
Hon’ble Court. The Respondent has not answered the phone calls of the
27

Appellant. The Appellant has detailed the specific acts and conduct of the
Respondent in this respect in her affidavit dated 14.08.2021 filed before this
Hon’ble Court, which may be read as an integral part of this application also.

It is respectfully submitted that the aforementioned deliberate conduct of the
Respondent is not only mala fide but impedes and obstructs the administration
of justice and harm the welfare of Aditya, while seeking to dilute the majesty
of this Hon’ble Court.

… … …

6. That the fact the Respondent did not get OCI of the child renewed and
attach it to the new passport or take nay steps to apply for visa for Aditya to
travel to India shows that the Respondent did not have any intentions of
complying with the judgment dated 28.10.2020 from the day it was
pronounced. The conduct of the Respondent post the passing of the Judgment
dated 28.10.2020 and order dated 08.12.2020 and 11.08.2021 has now
established that the Respondent had no intention to allow access between the
child and the mother.

7. The respondent has violated the undertaking given vide an affidavit of
compliance given by him to this Hon’ble Court dated 20.11.2020 wherein he
had given his undertaking to this Hon’ble Court, on solemn oath and
affirmation, to comply with its directions. The Respondent had also obtained
a mirror order dated 11.11.2020 from the High Court of Kenya, Milimani Law
Courts, Family Division wherein the final judgment of this Hon’ble Court
dated 28.10.2020 was registered (hereinafter referred to as “the mirror
order”). The Respondent has thus, willfully defied his undertaking given to
this Hon’ble Court and also the mirror order obtained from the Kenyan High
Court. …

8. The Respondent had also given an affidavit of undertaking in the
proceedings before the High Court of Delhi to comply with the orders of the
Hon’ble Court. The Respondent’s mother had also given an undertaking to the
High Court of Delhi to comply with the orders of the Hon’ble Court. It requires
mention that this undertaking of the mother was not included in the order of
08.12.2020 as this Hon’ble Court found that the mirror orders and the
Respondent’s undertaking and Rs.1 crore security were adequate. …
… … …

12. The Appellant has had no physical access to Aditya since 10.12.2020. The
weekly Skype call as per the final judgment dated 28.10.2020 which was to take
place on the weekend of 14.08.2021 and 15.08.2021 was also not facilitated by
the Respondent. The Appellant has now been blocked on all means of
communication, WhatsApp, Skype, phone and email since 14.08.2021. The
Appellant has also left a voice message for Master Aditya to call her back but
has not received any call back.”
28

The prayers made in the application are not extracted here as the

same were quoted in the subsequent order dated 17.8.2021 passed by

this Court.

26. Since the directions issued by this Court were not complied with,

this Court in its Order dated 16.08.2021 stated:-

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

Despite clear directions issued by this Court in the order dated 11.08.2021,
the father-Perry Kansagra has not followed the same. No application has been
preferred seeking renewal or grant of OCI Cardholder status. In fact as
disclosed by Smriti Kansagra has 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 representing Perry Kansagra all the while
now reports that Perry Kansagra does not wish to continue their services as
Advocates representing him. He further states that no instructions are being
received from Mr. Perry Kansagra and no contact is getting established
between the instructing advocates and Mr. Perry Kansagra.

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

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

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

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

List this mater for further consideration as first item on Board on
17.8.2021.”
29

27. The Order dated 17.08.2021 passed by this Court the next day

quoted the reliefs prayed for in I.A.No.100550 of 2021 and proceeded to

pass directions as stated therein: –

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

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

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

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

d. Restrain the Respondent-Perry Kansagra from taking any action,
or/and taking any steps, or/and initiating and/or prosecuting any
proceedings or any action of any nature before the Courts in Kenya or
any other court which will create an impediment in the implementation
or execution of order dated 11.08.2021 or any other order or judgement
passed by this Hon’ble Court’

e. Restrain the Respondent-Perry Kansagra from seeking any
modification of the mirror order dated 11.112020 from the High Court
of Kenya, Milimani Law Courts, Family Division.

f. Compel the Respondent-Perry Kansagra to yield both the Kenyan
passport and the UK passport of Aditya Vikram Kansagra to the Officer
authorised by the Indian High Commission.

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

h. In view of the mirror order dated 11.11.2020, direct the Indian
High Commission at Nairobi, Kenya to take the assistance of the
Kenyan Authorities to take steps to locate Aditya Vikram Kansagra and
bring him back to India on a flight arranged by the Appellant;

30

i. Direct the Indian High Commission at Nairobi Kenya to issue an
emergency travel document for Aditya Vikram Kansagra renewing his
OCI on his present/current Kenyan passport.

j. Direct a responsible official of the Indian High Commission at
Kenya to travel with Aditya from Nairobi to New Delhi and to hand
over Aditya upon reaching New Delhi to the Appellant;

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

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

m. Pass an order striking of the defence of the Respondent-Perry
Kansagra in the pending proceedings arising out of the marriage with
the Appellant and dismiss the counter claim filed by the Respondent as
mentioned in paragraph No.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 of justice.”

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

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

Since, learned advocates for Perry Kansagra are present, no separate notice
is actually necessary. However, we direct issuance notice to Mr. Perry
Kansagra-father of Aditya on this application.

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

At this stage, we grant ad interim relief in terms of Prayers (d), (e) & (f)
made in the aforesaid application. In order to consider and effectuate the relief
prayed for in prayer (g) and for the assistance required in the instant matter,
we issue notice to the Central Agency, returnable on 19.08l.2021.
Additionally, the papers shall be served upon the office of learned Solicitor
General of India 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 an Officer of the
Court to assist the Court in ensuring compliance of a Mirror Order produced
on record at the instance of Perry Kansagra.”
31

28. On 18.08.2021, another Interim Application was filed by Smriti

stating:-

“11. The custody of Aditya was given by the Appellant to Perry on
10.12.2020 on the strength of the “mirror order” dated 9.11.2020, which he
all along knew was not in compliance of this Hon’ble Court’s order in it’s true
spirit. The Respondent in a well-planned conspiracy consciously did not
comply with the judgment dated 28.10.2020.

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

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

It was, therefore, prayed:-

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

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

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

29. A copy of the Order dated 21.05.2021 was appended to the

aforestated application. Said Order dated 21.05.2021 was to the

following effect:-

32

“REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

MISCELLANEOUS APPLICATION NO.E031 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 AVK (A CHILD)

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

BY

PK…………………………….EX-PARTE APPLICANT

BETWEEN

PK…………………………….EX-PARTE APPLICANT

JUDGMENT

1. PK the Applicant herein, filed an Originating Summons dated 30.10.2020
seeking the following:-

1. Spent

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

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

33

4. THAT costs be reserved.

2. The Application is anchored on the provisions of the Constitution of
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 is the Foreign Judgments
(Reciprocal Enforcement) Act.

3. The facts of this case as can be gleaned from the record is that the
Applicant a Kenyan citizen married S an Indian Citizen 29.7.09. Following
the marriage, S moved to Kenya and settled in her matrimonial home. In
2009, she returned to India for the birth of their son AVK, who was born on
2.12.09 in New Delhi, India. On 1.7.10, 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 22.6.12
and spent time with S and the child until 26.4.12 when he returned to Kenya.
On 26.5.12, S filed suit in the Delhi High Court, seeking a permanent
injunction restraining the Applicant and his parents from removing the child
from her lawful custody or from Delhi, or accessing the child in school, which
orders were granted. This marked the beginning of litigation between the
parties from the High Court all the way to the Supreme Court and culminated
in the judgment, the registration of which the Applicant seeks.

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

5. The law relating to enforcement of judgments made in the foreign
countries is set out in the Foreign Judgment (Reciprocal Enforcement) Act,
Chapter 43 of the Laws of Kenya. The objective of the Act is to make
provision for the enforcement in Kenya, of judgments given in other countries
which accord reciprocal treatment to judgments given in Kenya and for other
purposes in connection therewith. The orders that the Applicant seeks to have
registered by this Court were issued by the Supreme Court of India. In order
for the said order to be enforceable, it must meet 2 criteria. First, the order
must be made by a designated court and second, it must be an order or
judgment to which the Act applies.

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

“designated court” means –

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

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

34

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

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

8. The Foreign Judgments (Reciprocal Enforcement) (Extension of Act)
Order, 1984 lists in a schedule, the countries declared by the minister to be
reciprocating countries. Paragraph 2 of the Order provides:

The countries specified in the schedule are declared to be reciprocating
countries for the purposes of the Act and the Act shall apply with respect to
judgments given by superior courts 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 an order of the
Minister, been declared to be a reciprocating country. In the case of Jayesh
Hasmukh Shah v. Navin Haria and another [2016] eKLR the Court of Appeal
dismissed an appeal where the appellant sought to enforce and execute in
Kenya a judgment from Ethopia which like India, is not a reciprocating
country under the provisions of the Act. The Court stated:

There is currently no treaty in place between Kenya and Ethopia
pursuant to which either country’s judgment may be enforced by either
country’s court. It is not in dispute that Ethopia’s Federal Supreme
Court is not a “designated court” within the meaning of Kenya’s Foreign
Judgment (Reciprocal Enforcement) Act. The respondent cited the case
of Intalframe Ltd. v. Mediterranean Shipping Company, (1986) KLR
where this Court expressed that the basic principle upon which
neighbouring or other states provided for 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
Foreign Judgment (Reciprocal Enforcement) Act (Cap 43, Laws of
Kenya) are not relevant to this appeal as they are applicable only where
there is reciprocal arrangement on enforcement of foreign judgment.

35

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

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

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

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

12. This Court has no jurisdiction to enforce or register a foreign judgment in
proceedings in connection with the custody or guardianship of a child. This
is because the Act does not apply to judgment in in such proceedings. In this
regard, I agree with Mysyoka, J. who in Ian Mbugua Mimano v. Charlotte
Wamuyu Mutisya & 2 others [2014] eKLR. Stated.

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

There is clearly no merit in the application dated 20th May, 2014 so far as
it relates to enforcement of a decree made by a USA court in proceedings
in connection with the custody or guardianship of a child. I decline to
grant it, and I hereby dismiss it with costs.

13. The Court therefore makes a finding that the judgment from the Supreme
Court of India, being from a superior court of a non-reciprocating country,
and further being one in proceedings in connection with the custody or
guardianship of a child, is not registrable in this Court by dint of Sections
13(1) and 3(3)(e) of the Foreign Judgment (Reciprocal Enforcement) Act.

14. The Applicant has relied on the case of In Re Matter of I W P (Infant)
[2013] eKLR in support of his case. I have considered the decision and note
that the same is distinguished, in that the judgment in respect of which
registration was sought therein, was from a Superior Court in the United
Kingdom, a reciprocating country within the meaning of Section 2 of the Act.
Notably, the learned Judge did not address that restriction in Section 3(3)(e)
on applicability of the act to matters relating guardianship and custody of
children. In any event, the said judgment being of a Court of concurrent
jurisdiction to this Court is not binding on this Court.

15. In the end and for the reasons stated, I do find that the Originating
Summons dated 30.10.2020 lacks merit and the same is hereby dismissed.

36

This being a matter concerning a child, there shall be no order as to costs.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 21ST DAY OF
MAY 2021.

___________

M. THANDE
JUDGE”

30. On 19.08.2021, Mr. Tushar Mehta, learned Solicitor General of

India appeared and the matter was directed to be taken up on

24.08.2021. 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 been referred to in some detail
in the earlier orders passed by this Court on 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 Advocates appearing for the applicant have also
invited our attention to various facts of the matter.

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

We therefore, direct the Registry to place the instant matter before the Hon’ble
CJI and seek requisite directions to constitute a Bench of three Judges
alongwith Hon’ble Mr. Justice Hemant Gupta who was a member of the
Bench when the Judgment dated 28.10.2020 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. Anunaya Mehta

who rendered assistance as an Officer of the Court by order dated

27.08.2021, the matter was directed to be posted for orders by the
37

present Bench on 2nd 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 17.08.2021 granted the
following prayers to the Appellant and against the Respondent –

“d. Restrain the Respondent-Perry Kansagra from taking any action,
or/and taking any steps, or/and initiating and/or prosecuting any
proceedings or any action of any nature before the Courts in Kenya or
any other Court which will create an impediment in the implementation
or execution of order dated 11.08.2021 or any other order or judgment
passed by this Hon’ble Court;

e. Restrain the Respondent-Perry Kansagra from seeking any
modification of the mirror order dated 11.11.2020 from the High Court
of Kenya, Milimani Law Courts, Family Division.”

3. That the Appellant received an email dated 31.08.2021 along with a
notice of motion and an affidavit in support of the notice of motion, both dated
26th August, 2021 and an order dated 30th August, 2021, passed by the High
Court of Kenya. The said documents further establish the contumacious and
perjurious conduct of the Respondent and are being placed before this Hon’ble
Court as Annexure P-1 (Pg.No.5 to 127).”

32. On the same day, another application i.e. I.A. No.109369 of 2021

was filed by Smriti stating :-

“3. That the Appellant received an email dated 31.08.2021 alongwith a
Petition and an affidavit in support of the Petition, both dated 26th August,
2021 and an order dated 30th August 2021, passed by the High Court of Kenya.
The said documents further establish the contumacious and perjurious conduct
of the Respondent and are being placed before this Hon’ble Court as Annexure
P-2.”

33. From these applications and the documents appended thereto, it

is evident that:

38

A. On 26.08.2021, Perry filed Petition No.E 301 of 2021 claiming inter

alia for declaration that the orders passed by this Court were invalid

and incapable of compliance and/ or enforcement and for permanent

injunction barring Smriti from taking Aditya outside the jurisdiction of

the High Court of Kenya. The relevant portions from the Petition are:

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

5. The 1st Respondent left Kenya and travelled to India on 10th March, 2012
along with the Minor under the pretext of going to visit her (the 1st
Respondent’s) Mother who lives in India and on arriving and settling in India,
the 1st Respondent clandestinely filed a suit in the High Court at New Delhi,
India seeking a permanent injunction restraining the Petitioner and his Parents
from removing the Minor from the custody of the 1st Respondent or from
removing the Minor from Delhi or accessing him in school.

6. The 1st Respondent unauthorizedly and illegally detained the Minor in
India for Eight (8) Years and the Petitioner had to go through a tedious and
prolonged litigation with the 1st Respondent in Indian Courts which litigation
culminated in a judgment delivered on 28th October, 2020 by the Supreme
Court of India in SUPREME COURT CIVIL APPEAL NO.3559 OF 2020
(SMRITI MADAN KANSAGRA VS. PERRY KANSAGRA) pursuant to
which the Petitioner was, inter-alia, granted permanent custody of the Minor.

7. The judgments passed by all the three Indian Courts came to a conclusive
finding that the best interest and welfare of the child is best secured by
granting the Petitioner the custody of the Minor and the three relevant
judgments issued in the proceedings between the Petitioner and the 1st
Respondent are as follows:-

a) GUARDIANSHIP PETITION NO.53 OF 2012 (PERRY
KANSAGRA VS SMRITI MADAN KANSAGRA) filed in the
Family Court South Saket District Courts, New Delhi where Petition
was allowed and Petitioner herein declared as guardian of the Minor
child are granted permanent custody of the minor child with the 1st
Respondent being granted visitation rights and temporary custody
during school vacations in summer and winters, each year.

b) Thereafter, the said Order of the Family Court South Saket District
Courts, New Delhi was challenged by the 1st Respondent before the
High Court of Delhi vide Case No. MAT. APP (F.C.) 30/ 2018. The
39

said appeal was dismissed vide judgment dated 25th February, 2020
and the Petitioner herein was granted permanent custody.

c) Thereafter, the said order of the High Court of Delhi was
challenged by the 1st Respondent before Supreme Court of India vide
CIVIL APPEAL NO.3559 OF 2020 (SMRITI MADAN KANSAGRA
VS PERRY KANSAGRA) being an appeal arising out of a
Guardianship Petition filed at the Supreme Court of India where
custody of the Minor was handed over to Perry Kansagra (the
Petitioner), subject to the Petitioner meeting certain directions, among
them, obtaining a ‘Mirror Order’ from the High Court in Nairobi,
Kenya.

*** *** ***

12. It is humiliating and degrading to the Minor and a violation of his
rights to have his inherent dignity respected and protected by forcefully
compelling him to take out an Overseas Citizen of India (OCI) card in
the Office of the Indian embassy at Nairobi without first ascertaining
his feelings and wishes, and without taking into account the fact that he
is a dual citizen of the Republic of Kenya and the United Kingdom.

13. The actions, of the 1st Respondent and the orders issued by the
Supreme Court of India on 11th August, 2021 requiring the Minor to
take out an OCI card and board a flight to India is a clear violation of
the rights enshrined under Article 28 of the Constitution of Kenya
which recognizes the inherent dignity of the Minor and the right to
respect and protect that dignity.

14. No effort has been made by the 1st Respondent and/ or the
Supreme Court of India to ascertain the wishes and feelings of the
Minor, his emotional needs and no effort has been made to evaluate
whether taking out an OCI card and arranging the traveling of the Minor
to India during the pendency of the corona-virus pandemic is harmful
to his welfare and best interest.

15. The petitioner alleges that under Article 53 of the Constitution of
Kenya, the Minor has the right to be protected from abuse, neglect and
inhuman treatment and to a recognition that the Minor’s best interests
are of paramount importance in every matter concerning the child. The
concise allegations and facts the Petitioner relies upon to describe the
manner and relevant acts of contravention of the said Fundamental
Freedom under Article 53 of the Constitution of Kenya are:-

(a) The ineffectual and unenforceable Orders issued by the
Supreme Court of India was given without jurisdiction. The
Supreme Court of India could not exercise jurisdiction over the
Kenyan Minor in matters that concerned the custody of the Minor
who is now a resident and citizen of Kenyan. The orders did not
have regard to the welfare, ascertainable feelings, wishes and best
interest of the Minor and by compelling the Minor to take out OCI
card and travel to India before ascertaining the emotional needs,
40

feelings and wishes of the Minor, the Court acted in total disregard
of what constitutes a child’s best interest.

(b) the Orders issued by the Supreme Court of India do not
advance the rule of law and the human rights and fundamental
freedoms guaranteed in the Bill of Rights. The orders are
incapable of implementation and if implemented, would have
absurd results because the said orders are not binding based on the
following:

(i) India has not been declared a reciprocating country under
the provisions of Foreign Judgment (Reciprocal
Enforcement) Act, Chapter 43 of the Laws of Kenya and as
such, the judgment of the Indian Courts cannot be effectively
enforced and/or executed in Kenya.

(ii) Section 3(3) (e) of Foreign Judgment (Reciprocal
Enforcement) Act, Chapter 43 of the Laws of Kenya does not
recognize a judgment or order in proceedings connected with
the custody or guardianship of children passed by foreign
courts. In the foregoing circumstances, the Courts in Kenya
are not bound by the foreign judgment in such a proceedings
related with the custody or guardianship of children.

(iii) There is no valid “Mirror Order” and in the event the
child is sent to India, there is every possibility that the child
may be detained in India by the Indian Courts and/or the
Mother and the Kenyan Courts who are lawfully vested with
jurisdiction over Kenyan Nationals and Citizens will lose
their jurisdiction over the Minor and it will become
impossible for Kenyan Courts to protect 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 of suffering harm
by being compelled to travel to India during the existence of the
Covid-19 pandemic, thus exposing him to health hazards.

(d) Kenyan Courts have exclusive territorial and/or geographical
jurisdiction over children who are Kenyan Citizens and that
jurisdiction cannot be taken away by any other Court or
administrative body.

(e) It is unreasonable and contrary to public interest for any Court,
Diplomatic Mission or administrative body to unilaterally compel
a Minor to adopt citizenship or status of identity that the Minor
has not expressed any ascertainable wish to acquire.

(f) The right of every child to have their best interest protected
41

and safeguarded is paramount and the orders issued by the
Supreme Court of India purport to limit and restrict the enjoyment
of the child’s rights guaranteed under Article 53 (2) of the
Constitution of Kenya.

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

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

YOUR PETITIONER THEREFORE HUMBLY PRAYS THAT:-

1. A declaration of invalidity of Indian jurisdiction and/or laws and/or
judgments denying, violating and/or threatening to infringe the
fundamental rights of the Minor through purported and unenforceable
judgments and orders relating to the Minor under Articles 23(3) (d) of
the Constitution of Kenya.

2. A declaration that the Minor is a dual citizen of Kenya and the United
Kingdom and a resident of Kenya and that India has no territorial and/or
geographical jurisdiction over personal matters relating to the Minor.

3. A declaration that compelling the Minor to take out Overseas Citizen
of India (OCI) card in the Office of the Indian Embassy at Nairobi
and/or compelling the said Minor to Board a flight to India during the
pendency of the highly infectious Covid-19 pandemic and against the
travel restrictions imposed by the Government of the Republic of Kenya
is contrary to Section 13(1) of the Children Act and is a violation of the
fundamental right of the Minor enshrined under Article 28 and 53 of
the Constitution of Kenya.

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

5. A declaration that under Section 3 93) (e) of the Foreign Judgment
(Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya,
Kenya lacks jurisdiction to recognize, enforce or register a foreign
judgment in proceedings that relate to the custody or guardianship of
children who are citizens of the Republic of Kenya.

42

6. A declaration that all the rights of the Minor are governed exclusively
by the Children Act, Chapter 141 of the Laws of Kenya and that to
safeguard and promote the rights and welfare of the Minor, the 1st
Respondent herein or any other party to these proceedings ought to seek
any redress from Kenyan Courts where the Minor is a citizen and
currently resident as provided for under Section 118 of the Children
Act.

7. An Order that the Director of Children’s Services do carry out an in-
depth enquiry into the wellbeing, welfare, ascertainable wishes and
feelings of the Minor under Section 4 (2), 11, 76 (3) of the Children Act
and tender a report to this Honourable Court and provide all necessary
assistance to the judicial process to the intent that orders issued by this
Honourable Court which require administrative arrangements may
achieve fulfilment.

8. An order directing the Petitioner to allow the 1st Respondent and the
Minor unimpeded telephone access in circumstances and durations the
Court shall deem reasonable and visitation rights to visit and stay with
the Minor within the Republic of Kenya in circumstances and for a
duration the Court shall deem reasonable provided that the 1st
Respondent shall not remove the Minor from the said Republic of
Kenya.

9. A permanent injunction barring the 1st Respondent either by herself,
her Servants and/or Agents from taking the Minor outside the
jurisdiction of this Honourable Court or any other person whosoever
from arranging and/or facilitating the removal of the Minor from Kenya
without the express willful consent of the Minor and the Petitioner. ….”

B. In said Petition No.E 301 of 2021, Notice of Motion was also moved

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) Practice and Procedure Rules, 2013 and all
enabling-provisions of the law.)

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

43

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

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

3. Pending the inter-partes hearing and determination of this application, this
Honourable Court be pleased to grant an order of temporary injunction
restraining and barring the 1st Respondent either by herself, her Servants
and/or Agents or any other person whosoever from taking the Minor outside
the jurisdiction of this Honourable Court and/or arranging and/or facilitating
the removal of the Minor from Kenya without the express consent of the
Minor and the Petitioner.

4. Pending the inter-partes hearing and determination of this application, this
Honourable Court be pleased to issue an order of temporary injunction
restraining and barring the 1st Respondent either by herself, her Servants
and/or Agents or any other person whosoever from applying for or obtaining
an Overseas Citizenship of India (OCI) card in the name and/or on behalf of
the Minor in order to facilitate the Minor to board a flight and travel outside
the Republic 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 the Minor and ascertain
his feelings and wishes regarding the 1st Respondent’s intention of removing
him from Kenya and taking him to India during the pendency of the Covid-19
global pandemic and if the Court find it necessary, to Commission the relevant
office in the Department of Children Services to prepare and file before this
Honourable Court a situational report on the ascertainable feelings and wishes
of the Minor and a finding as to whether the intended travel to India is in the
best interest of the Minor.

6. An order that service of the Petition and the supporting Affidavit together
with all pleadings and/or process of the Court in this matter be served upon
the 1st Respondent through her last known email address and by Courier
Service to her last known address in 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 of the said
Appeal.

WHICH APPLICATION is premised inter alia on the following grounds
supported by the affidavit of the Petitioner/Applicant and on other grounds to
be adduced at the hearing hereof;

a) THAT the Petitioner/Applicant is the biological father and natural
guardian of the Minor and currently lives and takes care of the Minor at their
Nairobi home following a Court Order issued by the Supreme Court of India
in Supreme Court Civil Appeal No. 3559 of 2020 (SMRITI MADAN
KANSAGRA VS. PERRY KANSAGRA)
44

b) THAT the Supreme Court of India in Supreme Court Civil Appeal
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 secured by granting the Petitioner
permanent custody of the Minor with the Respondent being granted visitation
rights during school vacations in summer and winters, each year.

c) THAT following the aforesaid Judgment of the Supreme Court of India,
the Minor has been living with the Petitioner in Nairobi where he has
acclimatized and accustomed to his new home and school environment and
made friends and is scheduled to start Class VII at Peponi House School in
Nairobi in the Month of September, 2021.

d) THAT on 28th June, 2021 the minor lost his paternal grandfather who
succumbed to Covid-19 related complications and is still mourning the said
loss as he was very close to his paternal grandfather. The minor fears the
covid-19 pandemic and he prefers to stay in Nairobi and not travel during the
pendency of the covid-19 pandemic.

e) THAT the 1st Respondent sought and on 11th August 2021, obtained orders
from the Supreme Court of India in MISCELLANEOUS APPLICATION
NO.1167 OF 2021 IN CIVIL APPEAL NO. 3559 OF 2020 (SMRITI
MADAN KANSAGRA VS. PERRY KANSAGRA) where the Court issued
orders compelling the Petitioner to apply in the office of the Indian Embassy
at Nairobi for the Minor to be issued with Overseas Citizen of India card so as
to enable the Minor board a flight and travel to India notwithstanding that the
Government of the Republic of Kenya has issued travel restrictions through
the Kenya Civil Aviation suspending all passenger flights between Kenya and
India with effect from Midnight 7th June, 2021 due to the Covid-19 infections.

f) THAT the Minor has declared his ascertainable feelings and wishes as
recorded in a situational report dated 9th August, 2021 and prepared by County
Coordinator, Nairobi Country Children Services in the Department of
Children Services and from the contents of the said report, the Minor fears the
1st Respondent and is not willing to travel to India; he prefers to stay in Kenya
with the Petitioner and fears that the 1st Respondent who is drunkard, abusive
and violent will illegally detain the Minor in India like she did previously.

g) THAT the 1st Respondent has moved with speed and booked an Air Ticket
for the Minor to take the Minor to India via Paris contrary to the ascertainable
feelings and wishes of the Minor and the interest of justice will best be served
by granting a conservatory order of status quo and pending the hearing and
determination of the annexed Petition.

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

45

i) THAT if a conservatory order and/or a temporary order of injunction is not
granted restraining and barring the 1st Respondent either by herself, her
Servants and/or Agents or any other person whosoever from removing the
Minor from the jurisdiction of this Honourable Court and/or applying for an
Overseas Citizenship of India (OCI) card in the name and/or on behalf of the
Minor in order to facilitate the Minor to board a flight to India, the best interest
of the Minor will be compromised and his rights and freedoms guaranteed
under the Constitution will be violated and his health, mental and emotional
development of affected.

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

Dated at Nairobi this 26th 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 which advice I verily
believe to be true that due to the principle of diplomatic immunity, I cannot
file suit and get orders against Government Officials of the Indian Embassy at
Nairobi to restrain them from issuing the Minor with an Overseas Citizen of
India card since they are not subject to the jurisdiction of Kenyan Courts in
the performance of their official duties.

16. THAT I am further advised by my aforesaid Advocate and which advise I
verily believe to be true, that under the provisions of Section 3 (3) € of the
Foreign Judgment (Reciprocal Enforcement) Act, Chapter 43 of the Laws of
Kenya, Courts in Kenya cannot recognize and/or deal with the orders obtained
from foreign courts in proceedings connected with the custody or guardianship
of children and the Orders obtained by the 1st Respondent on 11th August, 2021
in the Supreme Court of India cannot be given recognition and/or enforcement
by Kenyan Courts and are thus invalid and need to be declared as such.

17. THAT I am therefore reasonably apprehensive that if this matter is not
certified urgent and admitted to hearing on a priority basis and a conservatory
order of status quo issued, the order obtained by the 1st Respondent on 11th
August, 2021 from the Supreme Court of India and which is invalid and
incapable of recognition and/or enforcement by Kenyan Courts will be used
to impede and violate the fundamental rights and freedoms of the Minor who
is a citizen and resident of the Republic of Kenya and used to unlawfully
remove the Minor from the jurisdiction of this Honourable Court.”
46

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 SOCIAL PROTECTION
DEPARTMENT OF CHILD SERVICES
NAIROBI COUNTY CHILDREN SERVICES

Telephone (020) 2059212
Email Provincial Headquarter Building
Nyayo House
PO Box 58016-0200
Nairobi
Date:09/08/2021
David Kiptum & Company Advocates
49, Mageta Road, off Muthangari Road, Lavington
P.O. Box 21863-001100
Nairobi

SITUATIONAL REPORT ON ADITYA VIKRAM KANSAGRA (MINOR)

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

The minor was interviewed and he indicated to me that he did not wish to talk
to his mother because there was nothing for him to talk about. It was his claim
that each time he talked to her she pressured him to leave Kenya and join her
in India, something he does not want. He also said that India reminded him
of very bad memories where his mother was mistreating him. That she used
to shout at him whenever she was drunk something that affected him
emotionally. It was also his claim that his mother did not allow him to play
with his friends.

The minor said he preferred talking to his maternal grandmother whom he said
was very kind to him while in India. He felt that his father 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 he preferred to stay in Kenya with his father.

Considering the ascertainable wish of the minor and the orders given by the
India Court it is my considered opinion that you should move to the Children
Court seeking orders that will give effect to his wishes. To force him to talk
to his mother and to travel to India to see her against his wish is likely to visit
untold psychological effect on him. Given the fact that the child is within the
jurisdiction of Kenya, the children court is clothed with the jurisdiction to
issue orders of this nature
47

Sd/-

ISADIA HOYD
COUNTY COORDINATOR
NAIROBI COUNTY CHILDREN SERVICES”

34. The documents and the developments referred to hereinabove

show: –

(i) Perry had given an unequivocal undertaking to the High Court that

he would submit to the jurisdiction of the Indian Courts. He had also

given a solemn undertaking to this Court that he would comply with the

Order dated 28.10.2020 in addition to the Judgment dated 28.10.2020.

(ii) In response to a specific submission raised in Miscellaneous

Application No.2140 of 2020 (quoted in paragraph 16 hereinabove), it

was submitted by Perry that he had subjected himself to the jurisdiction

of this Court. While dealing with the rival submissions in the Order dated

8.12.2020, this Court made it clear that the undertaking given by Perry

to the High Court would continue to be operative, in addition to the

undertaking given to this Court.

(iii) The Judgment dated 28.10.2020 had called upon Perry to obtain a

‘Mirror Order’ from the concerned Court in Nairobi to reflect the

directions contained in the Judgment dated 28.10.2020. Thereafter, the

Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi
48

along with the relevant application moved by Perry seeking registration

of the Judgment dated 28.10.2020, was filed in this Court.

(iv) There was a dispute whether the registration granted vide order

dated 9.11.2020 by the High Court of Kenya at Nairobi amounted to

fulfilling the requirement of a “Mirror Order”. The submissions on the

point 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 opinion

given by M/s. GMC Advocates which in turn had relied upon the decision

of the High Court of Kenya at Nairobi in Re: Matter of I W P (Infant) [2013]

eKLR to submit that the registration itself was a “Mirror Order” in

compliance of the requirements of the Judgment dated 28.10.2020.

Relying on the submissions so advanced on behalf of Perry and in

deference to the Order dated 9.11.2020 passed by the High Court of

Kenya at Nairobi, in paragraph 10 of the Order dated 8.12.2020, this

Court observed that the registration of the Judgment of this Court by the

High Court of Kenya at Nairobi was sufficient compliance of the directions

to obtain a “Mirror Order” issued from a Competent Court in Kenya.

(v) The Judgment dated 28.10.2020 and the Order dated 8.12.2020

passed by this Court were thus premised on the submission that the

Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi
49

while registering the Judgment dated 28.10.2020 passed by this Court

was in fact the “Mirror Order”.

(vi) It now transpires that by a subsequent Order dated 21.5.2021, the

High Court of Kenya at Nairobi in Paragraph 13 of its order observed that

the judgment of this Court was not registrable and dismissed the

Originating Summons dated 30.10.2020 filed by Perry.

(vii) At no stage Perry brought this development to the notice of this

Court that the Originating Summons moved by him seeking registration

of the Judgment dated 28.10.2020 passed by this Court was dismissed

by the High Court of Kenya at Nairobi on 21.5.2021. Having submitted

to the jurisdiction of the Indian Courts it was the bounden duty of Perry

to keep this Court appraised of all the developments particularly when

the “Mirror Order” was the fulcrum on the basis of which this Court

handed over to him the custody of Aditya.

(viii) This infraction gets more pronounced in the light of the stand

taken in his Affidavit dated 5.8.2021 filed in this Court and referred to in

Paragraph 22 hereinabove. In that affidavit Perry unequivocally stated

that he had not even the remotest intention to disobey the Order passed

by this Court including the Judgment dated 28.10.2020. Yet, something

as basic and fundamental like the Order dated 21.05.2021 was not
50

brought to the notice of this Court. Logically, Perry should have brought

back Aditya to this country so that status quo ante could be restored and

appropriate orders could thereafter be passed by this Court.

(ix) Miscellaneous Application No.1167 of 2021 filed by Smriti had

annexed e-mails exchanged between her and Perry and prayed that Perry

be directed to comply with directions regarding vacation access. In

response, apart from stating that he had no intentions to disobey the

orders passed by this Court, Perry voiced concern about sending Aditya

to India. Being well aware of the conditions in this Country, a solution

was devised by this Court in its Order dated 11.08.2021 and certain

directions to facilitate the entry of Aditya into and his exit from India in

a safe manner were issued. Pertinently on 11.08.2021, the attention of

this Court was not invited to the fact that the Situational Report dated

09.08.2021 as referred to hereinabove was made or that the matter was

being looked into by the concerned authorities in Kenya.

(X) Despite clear directions issued in the Order dated 11.08.2021

Perry had not taken any steps to comply with the Order. As a matter of

fact, by the time the matter was taken up for further hearing on

16.08.2021, Perry sought to withdraw the authorization in favour of the

learned counsel who were all the while representing him before this

Court.

51

(XI) As disclosed in I.A. 100550 of 2021 week-end Skype meetings

between Smriti and Aditya were not facilitated from the week-end of

14.08.2021 and 15.08.2021. Perry also blocked all means of

communications with Smriti. Though in law the learned advocates who

had entered appearance on behalf of Perry would continue to represent

him, notice was additionally directed to be served on Perry through

Indian embassy of Nairobi.

(XII) In the light of the defiant attitude exhibited by Perry and his refusal

to abide by the Orders passed by this court, ad-interim relief in terms of

prayers (d) (e) and (f) made by Smriti in her I.A. No.100550 of 2021 was

granted by this Court vide its order dated 17.08.2021.

(XIII) Finally, Petition No.E301 of 2021 and – Notice of Motion were

moved on behalf of Perry, filed in the High Court of Kenya at Nairobi on

26.08.2021. The stand taken by Perry in said Petition and Notice of

Motion is that it would be humiliating to compel Aditya to take OCI Card;

that wishes of Aditya were not ascertained by this Court; that there was

no valid Mirror Order and that the orders passed by this Court were

without jurisdiction. He has prayed for declaration that there existed no

valid “Mirror Order” and in the circumstances the orders passed by this

Court are incapable of compliance and/or enforcement.

52

35. These developments not only show the defiant and contumacious

posture now adopted by Perry but prima facie support the submissions

of Smriti made in Interim Applications referred to in paragraphs 25, 27,

and 28 herein above. There appears to be concrete material and reason

to believe that it was a well-planned conspiracy on part of Perry to

persuade this Court to pass orders in his favour and allow him the

custody of Aditya and then turn around and defy the Orders of this Court.

36. It is fundamental that a party approaching the Court must come

with clean hands, more so in child custody matters. Any fraudulent

conduct based on which the custody of a minor is obtained under the

orders of the Court, would negate and nullify the element of trust reposed

by the Court in the concerned person. Wherever the custody of a minor

is a matter 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 person who in the

eyes of the Court, would be the most suitable person. Any action initiated

to obtain such custody from the Court with fraudulent conduct and

design would be a fraud on the process of the Court.

37. We may now refer to some of the cases where orders or decrees from

the Court were obtained by a party after practicing fraud upon the Court.

53

(a) In S.P. Chengalvaraya Naidu v. Jagannath4 the observations by

this Court were to the following effect: –

“5. The High Court, in our view, fell into patent error. The short question before
the High Court was whether in the facts and circumstances of this case, Jagannath
obtained the preliminary decree 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 duty cast upon the plaintiff to
come to court with a true case and prove it by true evidence”. The principle of
“finality of litigation” cannot be pressed to the extent of such an absurdity that it
becomes an engine of fraud in the hands of dishonest litigants. The courts of law
are meant for imparting justice between the parties. One who comes to the court,
must come with clean hands. We are constrained to say that more often than not,
process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-
dodgers and other unscrupulous persons from all walks of life find the court-
process a convenient lever to retain the illegal gains indefinitely. We have no
hesitation to say that a person, who’s case is based on falsehood, has no right to
approach the court. He can be summarily thrown out at any stage of the litigation.

6. The facts of the present case leave no manner of doubt that Jagannath obtained
the preliminary decree by playing fraud on the court. A fraud is an act of deliberate
deception with the design of securing something by taking unfair advantage of
another. It is a deception in order to gain by another’s loss. It is a cheating intended
to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He
purchased the property in the court auction on behalf of Chunilal Sowcar. He had,
on his own volition, executed the registered release deed (Ex. B-15) in favour of
Chunilal Sowcar regarding the property in dispute. He knew that the appellants
had paid the total decretal amount to his master Chunilal Sowcar. Without
disclosing all these facts, he filed the suit for the partition of the property on the
ground that he had purchased the property on his own behalf and not on behalf of
Chunilal Sowcar. Non-production and even non-mentioning of the release deed at
the trial is tantamount to playing fraud on the court. We do not agree with the
observations of the High Court that the appellants-defendants could have easily
produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A
litigant, who approaches the court, is bound to produce all the documents executed
by him which are relevant to the litigation. If he withholds a vital document in
order to gain advantage on the other side then he would be guilty of playing fraud
on the court as well as on the opposite party.”

(b) In Indian Bank v. Satyam Fibres (India) (P) Ltd.5 the principles were

stated thus: –

4

(1994) 1 SCC 1
5
(1996) 5 SCC 550
54

“21. In Smith v. East Elloe Rural Distt. Council6 the House of Lords held that the
effect of fraud would normally be to vitiate any act or order. In another
case, Lazarus Estates Ltd. v. Beasley7, Denning, L.J. said:

‘No judgment of a court, no order of a Minister, can be allowed to
stand if it has been obtained by fraud. Fraud unravels everything.’

22. The judiciary in India also possesses inherent power, specially under Section
151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the
case of fraud on a party to the suit or proceedings, the court may direct the affected
party to file a separate suit for setting aside the decree obtained by fraud. Inherent
powers are powers which are resident in all courts, especially of superior
jurisdiction. These powers spring not from legislation but from the nature and the
constitution of the tribunals or courts themselves so as to enable them to maintain
their dignity, secure obedience to its process and rules, protect its officers from
indignity and wrong and to punish unseemly behaviour. This power is necessary
for the orderly administration of the court’s business.

23. Since fraud affects the solemnity, regularity and orderliness of the
proceedings of the court and also amounts to an abuse of the process of court, the
courts have been held to have inherent power to set aside an order obtained by
fraud practised upon that court. Similarly, where the court is misled by a party or
the court itself commits a mistake which prejudices a party, the court has the
inherent power to recall its order. (See: Benoy Krishna Mukerjee v. Mohanlal
Goenka8
; Gajanand Sha v. Dayanand Thakur9 ; Krishnakumar v. Jawand
Singh10 ; Devendra Nath Sarkar v. Ram Rachpal Singh11; Saiyed Mohd.

Raza v. Ram Saroop12; Bankey Behari Lal v. Abdul Rahman13; Lekshmi Amma
Chacki Amma v. Mammen Mammen14, The court has also the inherent power to
set aside a sale brought about by fraud practised upon the court (Ishwar
Mahton v. Sitaram Kumar15
or to set aside the order recording compromise
obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh16; Tara
Bai v. V.S. Krishnaswamy Rao17

6
[1956 AC 736 : (1956) 1 All ER 855 : (1956) 2 WLR 888]
7
[(1956) 1 QB 702 : (1956) 1 All ER 341 : (1956) 2 WLR 502] (QB at p. 712)
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]
55

(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 for recalling the order
on the basis of the newly-discovered facts amounting to fraud of high degree,
cannot be foreclosed in such a situation. No court or tribunal can be regarded as
powerless to recall its own order if it is convinced that the order was wangled
through fraud or misrepresentation of such a dimension as would affect the very
basis of the claim.

(D) In Ram Chandra Singh v. Savitri Devi19 the discussion on the point

was as under:-

“18. A fraudulent misrepresentation is called deceit and consists in leading a man
into damage by wilfully or recklessly causing him to believe and act on falsehood.
It is a fraud in law if a party makes representations which he knows to be false,
and injury ensues therefrom although the motive from which the representations
proceeded may not have been bad.

18. A fraudulent misrepresentation is called deceit and consists in leading a man
into damage by wilfully or recklessly causing him to believe and act on falsehood.

It is a fraud in law if a party makes representations which he knows to be false,
and injury ensues therefrom although the motive from which the representations
proceeded may not have been bad.”

(E) In Hamza Haji v. State of Kerala20 the matter in issue was

discussed thus: –

“10. It is true, as observed by De Grey, C.J., in R. v. Duchess of Kingston21 that:

“ ‘Fraud’ is an extrinsic, collateral act, which vitiates the most
solemn proceedings of courts of justice. Lord Coke says it avoids
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 judgment
impugned has been pronounced by an inferior or by the highest

18
(2000) 3 SCC 581
19
(2003) 8 SCC 319
20
(2006) 7 SCC 416
21
[2 Smith LC 687]
56

court of judicature in the realm, but in all cases alike it is
competent for every court, whether superior or inferior, to treat as
a nullity any judgment which can be clearly shown to have been
obtained by manifest fraud.”

12. It is also clear as indicated in Kinch v. Walcott22 that it would be in the power
of a party to a decree vitiated by fraud to apply directly to the court which
pronounced it to vacate it. According to Kerr:

“In order to sustain an action to impeach a judgment, actual fraud
must be shown; mere constructive fraud is not, at all events after
long delay, sufficient … but such a judgment will not be set aside
upon mere proof that the judgment was obtained by perjury.”
(See 7th Edn., pp. 416-17)

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

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

In para 269, it is further stated:

“Fraud or collusion in obtaining judgment is a
sufficient ground for opening or vacating it, even after
the term at which it was rendered, provided the fraud
was extrinsic and collateral to the matter tried and not
a matter actually or potentially in issue in the action.”
It is also stated:

“Fraud practised on the court is always ground for
vacating the judgment, as where the court is
deceived or misled as to material circumstances, or
its process is abused, resulting in the rendition of a
judgment which would not have been given if the
whole conduct of the case had been fair.”

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

“Indeed, the connection of fraud with a judgment constitutes one
of the chief causes for interference by a court of equity with the
operation of a judgment. The power of courts of equity in granting
such relief is inherent, and frequent applications for equitable
relief against judgments on this ground were made in equity
before the practice of awarding new trials was introduced into the
courts of common law.

22

[1929 AC 482 : 1929 All ER Rep 720 : 141 LT 102 (PC)]
57

Where fraud is involved, it has been held, in some cases, that a
remedy at law by appeal, error, or certiorari does not preclude
relief in equity from the judgment. Nor, it has been said, is there
any reason why a judgment obtained by fraud cannot be the
subject of a direct attack by an action in equity even though the
judgment has been satisfied.”

15. The law in India is not different. Section 44 of the Evidence Act enables a party
otherwise bound by a previous adjudication to show that it was not final or binding
because it is vitiated by fraud. The provision therefore gives jurisdiction and
authority to a court to consider and decide the question whether a prior adjudication
is vitiated by fraud. In Paranjpe v. Kanade23 it was held that: (ILR p. 148)

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

16. In Lakshmi Charan Saha v. Nur Ali24 it was held that: (ILR p. 936)

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

17. In Manindra Nath Mittra v. Hari Mondal25 the Court explained the elements
to be proved before a plea of a prior decision being vitiated by fraud could be
upheld. The Court said: (AIR p. 127)

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

23
[ILR (1882) 6 Bom 148]
24
[ILR (1911) 38 Cal 936 : 15 CWN 1010]
25
[(1919) 24 CWN 133 : AIR 1920 Cal 126]
58

18. The position was reiterated by the same High Court in Esmile Uddin
Biswas v. Shajoran Nessa Bewa26
. It was held that: (AIR p. 650)

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

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

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

20. It is not necessary to multiply authorities on this question since the matter has
come up for consideration before this Court on earlier occasions. In S.P.
Chengalvaraya Naidu v. Jagannath28
this Court stated that: (SCC p. 2, para 1)

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

The Court went on to observe that the High Court in that case was totally in error
when it stated that there was no legal duty cast upon the plaintiff to come to the
court with a true case and prove it by true evidence. Their Lordships stated: (SCC
p. 5, para 5)
“The courts of law are meant for imparting justice between the
parties. One who comes to the court, must come with clean hands.
We are constrained to say that more often than not, process of the
court is being abused. Property-grabbers, tax-evaders, bank loan-
dodgers and other unscrupulous persons from all walks of life find
the court process a convenient lever to retain the illegal gains
indefinitely. We have no hesitation to say that a person, whose
case is based on falsehood, has no right to approach the court. He
can be summarily thrown out at any stage of the litigation.”

21. In Ram Preeti Yadav v. U.P. Board of High School and Intermediate
Education29
this Court after quoting the relevant passage from Lazarus Estates

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]
29
[(2003) 8 SCC 311 : 2003 Supp (3) SCR 352]
59

Ltd. v. Beasley30 and after referring to S.P. Chengalvaraya
Naidu v. Jagannath31
reiterated that fraud avoids all judicial acts. In State of
A.P. v. T. Suryachandra
Ra32o this Court after referring to the earlier decisions
held that suppression of a material document could also amount to a fraud on the
Court. It also quoted (at SCC p. 155, para 16) the observations of Lord Denning
in Lazarus Estates Ltd. v. Beasley33 that: (All ER p. 345 C)

“No judgment of a court, no order of a Minister, can be allowed
to stand if it has been obtained by fraud. Fraud unravels
everything.”

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

“Fraud indeed, in the sense of a Court of Equity, properly includes
all acts, omissions, and concealments which involve a breach of
legal or equitable duty, trust, or confidence, justly reposed, and
are injurious to another, or by which an undue and
unconscientious advantage is taken of another.”

23. In Patch v. Ward 34 Sir John Rolt, L.J. held that:

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

24. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra35 held that:

(SCC p. 607)

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

25. Thus, it appears to be clear that if the earlier order from the Forest Tribunal has
been obtained by the appellant on perjured evidence, that by itself would not enable
the Court in exercise of its power of certiorari or of review or under Article 215 of
the Constitution of India, to set at naught the earlier order. But if the court finds
that the appellant had founded his case before the Forest Tribunal on a false plea
or on a claim which he knew to be false and suppressed documents or transactions
which had relevance in deciding his claim, the same would amount to fraud. In this

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)]
34
[(1867) 3 Ch App 203 : 18 LT 134]
35
[(2005) 7 SCC 605]
60

case, the appellant had purchased an extent of about 55 acres in the year 1968 under
Document No. 2685 of 1968 dated 2-6-1968. He had, even according to his
evidence before the Forest Tribunal, gifted 5 acres of land to his brother under a
deed dated 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 by various sale deeds during the
years 1971 and 1972. Though, the details of the sale deeds like the numbers of the
registered documents, the dates of sale, the names of the transferees, the extents
involved and the considerations received were set out by the State in its application
for review before the High Court, except for a general denial, the appellant could
not and did not specifically deny the transactions. Same is the case in this Court,
where in the counter-affidavit, the details of these transactions have been set out
by the State and in the rejoinder filed by the appellant, there is no specific denial
of these transactions or of the extents involved in those transactions. Therefore, it
stands established without an iota of doubt as found by the High Court, that the
appellant suppressed the fact that he had parted with almost the entire property
purchased by him under the registered document through which he claimed title to
the petition schedule property before the Forest Tribunal. In other words, when he
claimed that he had title to 20 acres of land and the same had not vested in the State
and in the alternative, he bona fide intended to cultivate the land and was
cultivating that land, as a matter of fact, he did not have either title or possession
over that land. The Tribunal had found that the land was a private forest and hence
has vested under the Act. The Tribunal had granted relief to the appellant only
based on Section 3(3) of the Act, which provided that so much extent of private
forest held by an owner under a valid registered document of title executed before
the appointed day and intended for cultivation by him and that does not exceed the
extent of the ceiling area applicable to him under Section 82 of the Kerala Land
Reforms Act, could be exempted. Therefore, unless the appellant had title to the
application schedule land and proved that he intended to cultivate that land himself,
he would not have been entitled to an order under Section 3(3) of the Act. It is
obvious that when he made the claim, the appellant neither had title nor possession
over the land. There could not have been any intention on his part to cultivate the
land with which he had already parted and of which he had no right to possession.
Therefore, the appellant played a fraud on the Court by holding out that he was the
title-holder of the application schedule property and he intended to cultivate the
same, while procuring the order for exclusion of the application schedule lands. It
was not a case of mere perjured evidence. It was suppression of the most vital fact
and the founding of a claim on a non-existent fact. It was done knowingly and
deliberately, with the intention to deceive. Therefore, the finding of the High Court
in the judgment under appeal that the appellant had procured the earlier order from
the Forest Tribunal by playing a fraud on it, stands clearly established. It was not
a case of the appellant merely putting forward a false claim or obtaining a judgment
based on perjured evidence. This was a case where on a fundamental fact of
entitlement to relief, he had deliberately misled the Court by suppressing vital
information and putting forward a false claim, false to his knowledge, and a claim
which he knew had no basis either in fact or on law. It is therefore clear that the
order of the Forest Tribunal was procured by the appellant by playing a fraud and
the said order is vitiated by fraud. The fact that the High Court on the earlier
occasion declined to interfere either on the ground of delay in approaching it or on
the ground that a second review was not maintainable, cannot deter a Court moved
in that behalf from declaring the earlier order as vitiated by fraud.

61

26. The High Court, as a court of record, has exercised its jurisdiction to set at
naught the order of the Forest Tribunal thus procured by the appellant by finding
that the same is vitiated by fraud. There cannot be any doubt that the Court in
exercise of its jurisdiction under Article 215 of the Constitution of India has the
power to undo a decision that has been obtained by playing a fraud on the Court.
The appellant has invoked our jurisdiction under Article 136 of the Constitution of
India. When we find in agreement with the High Court that the order secured by
him is vitiated by fraud, it is obvious that this Court should decline to come to his
aid by refusing the exercise of its discretionary jurisdiction under Article 136 of
the Constitution of India. We do not think that it is necessary to refer to any
authority in support of this position except to notice the decision in Ashok Nagar
Welfare Assn. v. R.K. Sharma
[(2002) 1 SCC 749 : 2001 Supp (5) SCR 662] .”

(F) In K.D. Sharma v. SAIL36 the matter in issue was dealt with as

under:-

“26. It is well settled that “fraud avoids all judicial acts, ecclesiastical or temporal”
proclaimed Chief Justice Edward Coke of England about three centuries before.
Reference was made by the counsel to a leading decision of this Court in S.P.
Chengalvaraya Naidu v. Jagannath37
wherein quoting the above observations,
this Court held that a judgment/decree obtained by fraud has to be treated as a
nullity by every court.

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

“22. It is thus settled proposition of law that a judgment, decree or
order obtained by playing fraud on the court, tribunal or authority
is a nullity and non est in the eye of the law. Such a judgment,
decree or order—by the first court or by the final court—has to be
treated as nullity by every court, superior or inferior. 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 with the design of
securing something by taking unfair advantage of another. In fraud one gains at
the loss and cost of another. Even the most solemn proceedings stand vitiated if
they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates
all judicial acts, whether in rem or in personam.

36
     (2008) 12 SCC 481
37
      [(1994) 1 SCC 1]
38
     [(2007) 4 SCC 221]
                                                                                                    62



                                  …..              …..              …..

39. If the primary object as highlighted in Kensington Income Tax Commrs39. is
kept in mind, an applicant who does not come with candid facts and “clean breast”
cannot hold a writ of the court with “soiled hands”. Suppression or concealment of
material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or
misrepresentation, which has no place in equitable and prerogative jurisdiction. If
the applicant does not disclose all the material facts fairly and truly but states them
in a distorted manner and misleads the court, the court has inherent power in order
to protect itself and to prevent an abuse of its process to discharge the rule nisi and
refuse to proceed further with the examination of the case on merits. If the court
does not reject the petition on that ground, the court would be failing in its duty.

In fact, such an applicant requires to be dealt with for contempt of court for abusing
the process of the court.”

(G) In Meghmala v. G. Narasimha Reddy40 this Court observed: –

“28. It is settled proposition of law that where an applicant gets an order/office by
making misrepresentation or playing fraud upon the competent authority, such
order cannot be sustained in the eye of the law. “Fraud avoids all judicial acts,
ecclesiastical or temporal.” (Vide S.P. Chengalvaraya
Naidu v. Jagannath41
. In Lazarus Estates Ltd. v. Beasley42 the Court observed
without equivocation that: (QB p. 712) “No judgment of a court, no order of a
Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels
everything.”

29. In A.P. State Financial Corpn. v. GAR Re-Rolling Mills43 and State of
Maharashtra v. Prabhu44
this Court observed that a writ court, while exercising
its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud
as the courts are obliged to do justice by promotion of good faith. “Equity is always
known to defend the law from crafty evasions and new subtleties invented to evade
law.”

30. In Shrisht Dhawan v. Shaw Bros45. it has been held as under: (SCC p. 553,
para 20)
“20. Fraud and collusion vitiate even the most solemn proceedings
in any civilised system of jurisprudence. It is a concept descriptive
of human conduct.”

39
[(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)]
40
(2010) 8 SCC 383
41
[(1994) 1 SCC 1 : AIR 1994 SC 853]
42
[(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341 (CA)]
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]
63

31. In United India Insurance Co. Ltd. v. Rajendra Singh46 this Court observed
that “Fraud and justice never dwell together” (fraus et jus nunquam cohabitant)
and it is a pristine maxim which has never lost its temper over all these centuries.

32. The ratio laid down by this Court in various cases is that dishonesty should not
be permitted to bear the fruit and benefit to the persons who played fraud or made
misrepresentation and in such circumstances the Court should not perpetuate the
fraud. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura
Sundari Devi47
, Union of India v. M. Bhaskaran48, Kendriya Vidyalaya
Sangathan v. Girdharilal Yadav49, State of Maharashtra v. Ravi Prakash
Babulalsing Parmar50
, Himadri Chemicals Industries Ltd. v. Coal Tar Refining
Co
.51 and Mohd. Ibrahim v. State of Bihar52.

33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would
vitiate the most solemn proceedings of courts of justice. Fraud is an act of
deliberate deception with a design to secure something, which is otherwise not due.
The expression “fraud” involves two elements, deceit and injury to the person
deceived. It is a 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 Rao55
, K.D. Sharma v. SAIL56 and Central Bank of
India v. Madhulika Guruprasad Dahir57
.

34. An act of fraud on court is always viewed seriously. A collusion or conspiracy
with a view to deprive the rights of the others in relation to a property would render
the transaction void ab initio. Fraud and deception are synonymous. Although in a
given case a deception may not amount to fraud, fraud is anathema to all equitable
principles and any affair tainted with fraud cannot be perpetuated or saved by the
application of any equitable doctrine including res judicata. Fraud is proved when
it is shown that a false representation has been made (i) knowingly, or (ii) without
belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression
of a material document would also amount to a fraud on the court. (Vide S.P.
Chengalvaraya Naidu58, Gowrishankar v. Joshi Amba Shankar Family
Trust59, Ram Chandra Singh v. Savitri Devi60, Roshan Deen v. Preeti Lal61, Ram

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]
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]
57
[(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]
64

Preeti Yadav v. U.P. Board of High School & Intermediate Education62 and Ashok
Leyland Ltd. v. State of T.N
.63

35. In Kinch v. Walcott64 it has been held that:

“… mere constructive fraud is not, at all events after long delay,
sufficient but such a judgment will not be set aside upon mere
proof that the judgment was obtained by perjury”.
Thus, detection/discovery of constructive fraud at a much belated
stage may not be sufficient to set aside the judgment procured by
perjury.”

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

(H) In Badami v. Bhali65 a discussion was as under: –

“29. Presently, we shall refer as to how this Court has dealt with concept of fraud.
In S.B. Noronah v. Prem Kumari Khanna66 while dealing with the concept of
estoppel and fraud a two-Judge Bench has stated that: (SCC p. 58, para 20)

“20. It is an old maxim that estoppels are odious, although
considerable inroad into this maxim has been made by modern
law. Even so, ‘a judgment obtained by fraud or collusion, even, it
seems, a judgment of the House of Lords, may be treated as a
nullity’. (See Halsbury’s Laws of England, Vol. 16, 4th Edn., para
1553.) The point is that the sanction granted under Section 21, if
it has been procured by fraud or collusion, cannot withstand
invalidity because, otherwise, high public policy will be given as
hostage to successful collusion.”

30. In S.P. Chengalvaraya Naidu v. Jagannath67 this Court commenced the
verdict with the following words: (SCC p. 2, para 1)

“1. ‘Fraud avoids all judicial acts, ecclesiastical or temporal’
observed Chief Justice Edward Coke of England about three

62
[(2003) 8 SCC 311 : AIR 2003 SC 4268]
63
[(2004) 3 SCC 1 : AIR 2004 SC 2836] )
64
[1929 AC 482 : 1929 All ER Rep 720 (PC)]
65
(2012) 11 SCC 574
66
[(1980) 1 SCC 52 : AIR 1980 SC 193]
67
[(1994) 1 SCC 1]
65

centuries ago. It is the settled proposition of law that a judgment
or decree obtained by playing fraud on the court is a nullity and
non est in the eye of the law. Such a judgment/decree—by the first
court or by the highest court—has to be treated as a nullity by
every court, whether superior or inferior. It can be challenged in
any court even in collateral proceedings.”
In the said case it was clearly stated that the courts of law are
meant for imparting justice between the parties and one who
comes to the court, must come with clean hands.”
….. ….. …..

32. In Shrisht Dhawan v. Shaw Bros.68 it has been opined that the fraud and
collusion vitiate even the most solemn proceedings in any civilised system of
jurisprudence. It has been defined as an act of trickery or deceit. The aforesaid
principle has been reiterated in Roshan Deen v. Preeti Lal69, Ram Preeti
Yadav v. U.P. Board of High School
and Intermediate Education70 and Ram
Chandra Singh v. Savitri Devi71
.

33. In State of A.P. v. T. Suryachandra Rao72 after referring to the earlier decision
this Court observed as follows: (SCC p. 155, para 16)

“16. In Lazarus Estates Ltd. v. Beasley73 Lord Denning observed
at QB p. 712:

‘… No judgment of a court, no order of a minister, can be allowed
to stand if it has been obtained by fraud. Fraud unravels
everything.’
In the same judgment Lord Parker, L.J. observed that fraud
‘vitiates all transactions known to the law of however high a
degree of solemnity’ (Lazarus case74, QB p. 722).”

34. Yet in another decision Hamza Haji v. State of Kerala75 it has been held that
no court will allow itself to be used as an instrument of fraud and no court, by way
of rule of evidence and procedure, can allow its eyes to be closed to the fact it is
being used as an instrument of fraud. The basic principle is that a party who secures
the judgment by taking recourse to fraud should not be enabled to enjoy the fruits
thereof.

….. ….. …..

68

[(1992) 1 SCC 534 : AIR 1992 SC 1555]
69
[(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]
75
[(2006) 7 SCC 416 : AIR 2006 SC 3028]
66

38. All these reasonings are absolutely non-plausible and common sense does not
even remotely give consent to them. It is fraudulent all the way. The whole thing
was buttressed on the edifice of fraud and it needs no special emphasis to state that
what is pyramided on fraud is bound to decay. In this regard we may profitably
quote a statement by a great thinker:

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

38. We heard the learned Solicitor General, the learned Senior Counsel

for Smriti and Mr. Anunaya Mehta (who had earlier represented Perry) as

an Officer of the Court.

(A) The learned Solicitor General submitted that as the order of custody

was obtained by Perry by practising fraud upon the Court, not only the

Judgment dated 28.10.2010 and the Order dated 08.12.2020 be recalled

but the Guardianship Proceeding initiated by Perry be also dismissed. It

is submitted that the conduct exhibited by Perry would call for initiation

of proceeding in contempt and an appropriate notice be issued to him. It

was further submitted that the custody of Aditya so obtained by Perry

and continues to be illegal and invalid. In his submission, now that

Aditya is in Kenya, certain proceedings might have to be initiated by

Smriti in Kenya apart from defending the proceeding initiated by Perry in

Kenya. He submitted that the Indian High Commission in Kenya would

provide all logistical support to Smriti in such action(s) to be initiated or

defended by her.

67

(B) Mr. Amarjit Singh Chandhiok and Ms. Sonia Mathur, learned

Senior Advocates appearing for Smriti supported the submissions of the

learned Solicitor General that the Judgment dated 28.10.2010 and Order

dated 08.12.2020 passed by this Court be recalled and proceeding in

Contempt jurisdiction be initiated. They further submitted that since the

custody of Aditya was obtained in a fraudulent manner, Central Bureau

of Investigation be directed to register a crime against Perry for having

committed criminal offences punishable under Sections 361, 362 and

363 of the IPC76. It was also submitted that the learned Solicitor General

be asked to make appropriate request to the Attorney General for Kenya

so that the process would be expedited and Aditya would be brought back

as early as possible.

(C) Mr. Anunaya Mehta, learned Advocate fairly accepted that the

conduct of Perry was indefensible and supported the course of action

suggested by the learned Solicitor General.

39. Though, at every juncture solemn undertakings were given by Perry

to the High Court and this Court, such undertakings were not only

flagrantly violated but a stand is now taken challenging the very

jurisdiction of the Indian Courts, despite having submitted himself to the

76
The Indian Penal Code
, 1860
68

jurisdiction of the Indian Courts. Such conduct, prime facie, can

certainly be said to be contumacious calling for an action in contempt

jurisdiction. Moreover, the non-disclosure of material facts by Perry at

the relevant junctures also shows that he approached the Indian Courts

with unclean hands.

40. It was only on the basis of the solemn undertakings given by Perry

and the order dated 09.11.2020 passed by the High Court of Kenya at

Nairobi which was projected to be a “Mirror Order” in compliance of the

directions issued by this Court, that the custody of Aditya was directed

to be handed over to Perry. Since the false and fraudulent

representations made by Perry were the foundation, on the basis of which

this Court was persuaded to handover custody of Aditya to him, it shall

be the duty of this Court to nullify, in every way, the effect and impact of

the orders which were obtained by playing fraud upon the Court. All the

decisions referred to hereinabove point in that direction. This Court

would therefore be well within its power and justified to recall all the

orders and continue to assume jurisdiction to ensure that the situation

as it prevailed prior to the passing of the orders by the Trial Court, the

High Court and this Court, gets restored, whereafter appropriate decision

can be taken in parens patriae jurisdiction.

69

41. It is true that Aditya is now in Kenya. But he was taken to Kenya

only on the basis of fraudulently obtained orders from this Court. In our

considered view, the Indian Courts which were the Courts of first contact

and had complete jurisdiction over Aditya, must continue to exercise

such power and jurisdiction to correct the wrongs which occurred as a

result of fraudulent conduct on part of Perry. It may be stated here that

at every juncture, welfare of Aditya was and will always continue to be

the primary consideration for the Indian Courts. He was interviewed by

very competent and qualified Counsellors whose reports and

assessments have been part of the record. Aditya was also interviewed

by the Trial Court, the High Court and this Court. At no stage any

mistreatment by Smriti was even remotely suggested or adverted to by

Aditya. After Aditya is brought back to this country, this Court will

certainly have appropriate interactions with Aditya to understand his

wishes while considering his welfare.

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

(A) The Judgment dated 28.10.2020 and the Order dated 08.12.2020

passed by this Court are recalled.

(B) The Guardianship Petition No.53 of 2012 filed by Perry in the

District Court, Saket, New Delhi seeking permanent custody of Aditya
70

and 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 custody of

Aditya with Perry is declared to be illegal and ab initio void.

(D) Issue notice to Perry as to why proceedings in contempt jurisdiction

be not initiated against him for having violated the solemn undertakings

given to this Court, returnable on 16th November, 2021. The Registry is

directed to register Suo Motu Contempt Case and proceed accordingly.

(E) The notice shall additionally be served through e-mail directed at

the e-mail id used by Perry in communicating with Smriti. The details in

that behalf shall be furnished to the Registry by Smriti within two days.

(F) The Central Bureau of Investigation, New Delhi through its Director

is directed to initiate appropriate proceedings by registering criminal

proceedings against Perry and to secure and entrust the custody of

Aditya to Smriti.

(G) The Secretary, Ministry of External Affairs, Government of India,

New Delhi and the Indian Embassy in Kenya are directed to ensure that

all possible assistance and logistical support is extended to Smriti in

securing the custody of Aditya.

71

(H) From and out of the amount of Rs.1 crore deposited by Perry in this

Court, at this stage, an amount of Rs.25 lakhs be handed over to Smriti

towards legal expense incurred or required to be incurred hereafter. Rest

of the money shall continue to be kept in deposit with the Registry till

further orders.

43. With these directions, Miscellaneous Application No.1167 of 2021

and connected Interim Applications are disposed of.

…..…………………………J.

(UDAY UMESH LALIT)

……………………………..J.

(HEMANT GUPTA)

……………………………..J.

(AJAY RASTOGI)

NEW DELHI,
OCTOBER 07, 2021



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