Smriti Madan Kansagra vs Perry Kansagra on 8 December, 2020


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Supreme Court of India

Smriti Madan Kansagra vs Perry Kansagra on 8 December, 2020

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, Hon’Ble Ms. Malhotra, Hemant Gupta

                                                                                                      1


                                                                                  NON-REPORTABLE

                                          IN THE SUPREME COURT OF INDIA
                                           CIVIL APPELLATE JURISDICTION

                                 MISCELLANEOUS APPLICATION NO. 2140 OF 2020

                                                               IN

                                            CIVIL APPEAL NO. 3559 OF 2020


                         SMRITI MADAN KANSAGRA                                          …Appellant

                                                           VERSUS

                         PERRY KANSAGRA                                                 …Respondent


                                                            WITH


                                 MISCELLANEOUS APPLICATION NO. 2170 OF 2020
                                                     IN
                                        CIVIL APPEAL NO. 3559 OF 2020




                                                       O R D E R

1. By majority judgment dated 28.10.2020, (hereinafter referred to as

the Judgment) Civil Appeal No.3559 of 2020 was dismissed with certain

directions. Paragraphs 20 to 22 of the Judgment, for facility, are quoted
Signature Not Verified
hereunder:-

Digitally signed by
Indu Marwah
Date: 2020.12.08
17:17:07 IST
Reason:

“20. In view of the aforesaid discussion, we consider it
just and appropriate that the custody of Aditya Vikram
Kansagra is handed over by his mother Smriti Madan
2

Kansagra, to the father Perry Kansagra, subject to the
following directions, which will take effect in supersession
of the Orders passed by the Courts below:

(a) We direct Perry Kansagra to obtain a mirror
order from the concerned court in Nairobi to
reflect the directions contained in this
judgment, within a period of 2 weeks from the
date of this judgment. A copy of the Order
passed by the court in Nairobi must be filed
before 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 at liberty to speak to his
mother as and when he desires to do so;

(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;

3

(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 judgment.

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.”

2. Direction (C) issued in paragraph 20 as stated above, was

modified by a subsequent Order dated 03.11.2020 passed in M.A.

No.2066 of 2020 moved by the respondent, who 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 for Aditya after his arrival in Kenya.
4

3. On 30.10.2020, the respondent filed an undertaking in this Court

stating that he would abide by and comply with all the directions

contained in the Judgement, without demur, and in letter and spirit.

Similarly, the appellant has filed an undertaking dated 05.11.2020 to abide

by and comply with the directions passed by this Court without demur.

4. On 30.10.2020, the respondent moved an application in the High

Court of Kenya at Nairobi seeking registration of the Judgment 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)
AND IN THE MATTER OF SECTION4, 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.

5

2. THAT the judgment delivered by the Supreme Court
of India in Supreme Court Civil Appeal No.3559 of
2020 – Smriti Madan Kangagra 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….”

5. 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

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
6

O R D E R

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 ____”

6. The appellant has now filed Miscellaneous Application No.2140

of 2020 seeking modification of the directions issued by this Court in para

20 of the Judgment. In Paragraph 19 of this Application, the appellant has

sought various modifications which are encapsulated in a Note circulated

on 30.11.2020, and confined and crystalised her case under following five

segments:-

“I. Protections and directions by the High Court and
Family Court which were not appealed:

a. Smriti be granted temporary custody/visitation of
Aditya during summer and winter vacation.

b. Smriti be permitted to freely exchange e-mails, letters,
and other correspondence with Aditya without any
hindrance by Respondent or his family.

c. Smriti shall be entitled to talk to Aditya over video
call/audio calls for at least 10 minutes everyday at
mutually agreed time.

7

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.

II. Directions in the best interest of Aditya Re:

schooling and education

a. Perry be directed to furnish Aditya’s school reports and
activity reports to Smriti.

b. Perry to inform Smriti about the Parent Teacher
Meetings and other functions and activities in school
and Smriti to have liberty to visit Aditya’s school,
attend school events and interact with the school
teachers. Smriti’s contact details to be furnished to
Aditya’s school.

c. Smriti be consulted /informed if Aditya’s school is
changed.

III. Directions in the best interest of Aditya Re:

Continuance of emotional connection with Mother

a. Smriti be permitted to have the temporary
custody/visitation of Aditya during easter vacation in
addition to the summer and winter vacation and Smriti
be permitted to take Aditya abroad for holidays. Perry
or grandparents to drop Aditya to India and pick him
up.

b. Smriti be allowed to visit Kenya every two months and
stay with Aditya for a week. Cost of Smriti’s stay and
travel be taken care of by Perry.

c. Smriti to have liberty to meet Aditya on his birthday.

d. Aditya to have a video call with extended family
members on the maternal side, cousins and friends
twice a month.

IV. Directions in best interest of Aditya Re: Welfare
and Health
8

a. Perry to keep Smriti informed about Aditya’s health and
medical issues and share medical reports with Smriti.
In case of medical emergency, Perry to immediately
inform Smriti. All medical decisions regarding Aditya
be taken in consultation with Smriti.

b. This Hon’ble Court may keep the matter pending and
Aditya be produced before the Hon’ble Court for an
evaluation every six months for the next 4 years [Vivek
Singh vs. Romani Singh1]

V. Miscellaneous Directions

a. Perry to get the OCI renewed and keep the same valid
till Aditya turns 18.

b. Both parties to file undertakings incorporating the
directions of the Court and an appropriate mirror order
may be filed. Smriti be provided with the advance
copy of the paper work being filed in Kenya for
obtaining mirror order in Kenya.”

7. We will deal with the matter mentioned at placitum ‘a’ under the

first segment after having dealt with other aspects under said segment.

(i) With regard to the matter at placitum ‘b’, the learned

counsel for the respondent has fairly accepted the

suggestion.

(ii) With regard to the matter at placitum ‘c’, as against 10

minutes a day, what has been granted is one hour over the

week end. Thus, as against 70 minutes in a week, what has

been granted is 60 minutes over the weekends which will be

sufficiently long and a comprehensive interaction. It has

also been directed that the child will be at liberty to speak to

1 (2017) 3 SCC 231, Page 57/See Page 72
9

his mother, as and when he desires to do so. Therefore, in

our view, the directions issued by this Court with regard to

this issue do not call for any modification.

(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.
10

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.

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) 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:-
11

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
12

to the directions of the High Court of Delhi in Dr. Navtej Singh vs. State

of NCT and another2 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.

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

2 (2018) SCC OnLine Del 7511 – which was affirmed by this Court in (2019) 17
SCALE 672
13

accordance with common law principles and doctrine of equity and upon

Article 2(5) of the Constitution of Kenya, 2010, which recognises 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] 3KLR) 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 Ex-
Parte application, as the orders sought were non-
contentious 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
14

by Supreme Court of 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.

11. Insofar as the matter mentioned at placitum ‘a’ is concerned, it is

submitted by Mr. Divan, learned Senior Advocate that the Family Court

and the High Court had granted certain reliefs to the appellant even while
15

granting custody to the respondent. A comparative chart of the directions

issued by the High Court and those in the Judgment has also been

presented as under:-


Order of High Court Judgment of Supreme Court
(Page 125) (Page 156)
Undertaking of mother of Perry who Not Granted
holds Indian Citizenship (page 34 of
MA)
Perry to file undertaking before Not Granted
Indian Embassy that he shall be
submitting to the jurisdiction of the
court of India (Page 31 of MA)
Smriti shall be entitled to talk to Smriti will be at liberty to engage
Aditya over audio calls/video calls with Aditya on a suitable video-
for at least 10 minutes everyday at a conferencing platform for one hour
mutually agreed time which is least over the weekends;
disruptive to the schooling and other Further, Aditya is at liberty to speak
activities of the Aditya; to his mother as and when he desires
to do so;

                                              Reduced
    Smriti shall be entitled to freely                    Not granted
    exchange e-mails, letters and other
    correspondences       with      Aditya
    without and hindrance by Perry or
    his family;
    Grant of temporary custody of             Smriti would be provided with
    Aditya to Smriti during                   access and visitation rights for 50%
        - Summer and                          once in a year during the annual
        - Winter vacations                    vacations of Aditya, either in New
    on the dates to be mutually agreed        Delhi or Kenya, wherever she likes,
    upon                                      after due intimation to Perry;
    (*Also granted by Family Court)           Reduced
    Smriti may visit the Aditya at                        Not granted.
    Nairobi, Kenya. However, she shall
    not be entitled to take Aditya out of
    Nairobi, Kenya.

Perry shall bear the cost of return air Petty will bear the cost of one trip in
ticket for travel from India once a a year for a period of one week to
year and accommodation for seven Smriti and her mother to visit
days for Smriti. Aditya in Kenya during his
vacations. The costs will cover the
air fare and expenses for stay in
Kenya;

Additional right to Grandmother.

16

“”

12. It is submitted that the entitlement of the appellant in terms of the

order issued by the High Court was not under challenge before this Court.

Neither any substantive appeal was filed by the respondent nor any cross

objections were preferred and, as such, said entitlement could not be

reduced or whittled down. It is submitted that the appellant was entitled

in terms of the directions of the High Court, to have the temporary

custody of Aditya throughout the winter and summer vacations. But, that

entitlement is now reduced to only 50% of one of the vacations.

13. It is true that there was no appeal or any challenge on part of the

respondent insofar as the temporary custody during two vacations are

concerned. However, that direction was modified by this Court exercising

parens patriae jurisdiction which is why the expression “in supersession

of the Orders passed by the courts below” was used in paragraph 20 of the

Judgment. Requiring Aditya to travel to India and spend the entirety of his

two vacations spreading over a period of three months, was considered to

be causing hindrance to his normal educational and other activities. Aditya

is a bright child of 11 years. In the coming years, his activities on the

academic side are likely to increase substantially since he will be required

to study under the I.B. curriculum, and learn the local language. As he

grows, his horizons are going to be wider. In child custody matters, rather
17

than the entitlement of either of the parents, what is of paramount

importance is the wellbeing and welfare of the child. Therefore,

considering the totality of circumstances, including his age at present, it

was considered appropriate to grant half of one vacation with the

appellant, which is sufficient and serves the desired purpose.

14. In terms of the directions issued by this Court, the appellant along

with maternal grandmother of Aditya will be entitled, at the expense of the

respondent to spend seven days in Kenya once a year. The directions thus

contemplated that in a year, the appellant will have sufficient physical

contact and interaction as well as benefit of stay with Aditya.

15. In the circumstances, subject to the discussion with regard to the

matter at Placitum ‘b’, the submissions under first segment are rejected.

16. Insofar as the directions sought under the second segment are

concerned, Mr. Mehta, learned Counsel for the respondent has welcomed

the suggestions of furnishing school report and activities report of Aditya

to the appellant. It is also accepted that the respondent shall keep the

appellant informed about parents-teachers meetings, and about other

functions and activities in the school, and that the appellant will be at

liberty to visit Aditya’s school, and attend school events and interact with

school teachers. In order to facilitate the interaction of the appellant on
18

these aspects, the e-mail Id. of the appellant as well as her mobile details

shall be furnished to Aditya’s school, so that the appellant shall be kept in

touch with the developments. It is also agreed that appellant shall be

informed in case Aditya’s school is changed on any future date.

17. Placitum ‘a’ of directions sought under the third segment is in

addition to the one prayed for under placitum ‘a’ of the first segment. On

one hand, the appellant desires the temporary custody of Aditya all

through Easter, Winter and Summer vacations, and seeks directions that

she be allowed to visit Kenya every two months at the expenses of the

respondent; while on the other hand, the anxiety and apprehension

expressed by the respondent is that repeated visits to India all through the

vacations will not allow Aditya sufficient time for his activities and

pursuits. Since we have rejected the case of the appellant for having

temporary custody all through the summer and winter vacations, we do

not accept the present suggestion which is, therefore, rejected.

Similarly, it will not be possible to pass a direction that the

appellant be allowed to visit Kenya every two months at the cost and

expense of the respondent. If the appellant chooses on her own to go to

Kenya, she will certainly be free to do so. But, putting an obligation upon

the respondent to finance her trips, would not be appropriate. We,

therefore, reject the submission.

19

With regard to placitum ‘c’, the matter will be dealt with separately

hereafter.

With regard to the matter at placitum ‘d’, it must be stated that in

accordance with the directions issued in paragraph 20 of the Judgment,

Aditya will be at liberty to speak to his relations and friends. Therefore,

no further directions in that behalf are called for.

18. We now turn to the directions sought under the fourth segment. It

is accepted by Mr. Mehta, learned counsel for the respondent that the

respondent will always keep the appellant informed about Aditya’s health

and medical issues, and will certainly share his medical reports with the

appellant; and that in case of any medical emergency, the appellant shall

always be kept informed. Placitum ‘b’ under this segment prays that the

matter be kept pending and Aditya be directed to be produced before this

Court for an evaluation every six months for next four years. We do not

think it appropriate to call Aditya to Court every six months. But we

accept the suggestion of having an interaction with him to see the

progress. It is, therefore, clarified that as and when Aditya is in India

during any of his vacations, the learned counsel for the appellant may

mention the matter so that an interaction with Aditya can be arranged.

19. Moving on to the last set of directions sought under the fifth

segment, it is not necessary to pass any direction to keep the OCI Card
20

Status renewed as suggested. Similarly, no orders are called for in

connection with placitum ‘b’ of this segment, as the order passed by the

High Court of Kenya in registering the Judgment has already been found

to be in sufficient compliance with the direction issued by this Court.

20. However, in the context of direction sought at placitum ‘c’ of the

third segment, we see force in the submission that the appellant be given

liberty to meet Aditya on his Birthdays. We, therefore, direct that in

addition to direction (g) in para 20 of the Judgment, the appellant shall be

allowed every year, one more trip for a week financed by the respondent,

coinciding with the Birthday of Aditya (which falls on 2nd of December).

Thus, the appellant will have the benefit of two trips to Kenya in a year,

out of which one will be with her mother as well. These two visits will be

in addition to 50% of the annual vacation as granted in direction (f) of

Para 20 of the Judgment. Apart from the opportunity of enjoying the

company of Aditya, these interactions will help in maintaining the bond

between the son and the mother.

21. In the circumstances we hold and direct:-

A) Except for direction issued earlier in paragraph 20 of this

Order, and matters accepted by the learned counsel for the
21

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.

22

22. Miscellaneous Application No.2140 of 2020 stands disposed of

accordingly without any order as to costs. Miscellaneous Application

No.2170 of 2020 in Civil Appeal No.3559 of 2020 (Office Report for

Directions) does not call for any further directions and also stands

disposed of.

..……………………………J.

[Uday Umesh Lalit]

……………………………..J.

[Indu Malhotra]

……………………………..J.

[Hemant Gupta]
New Delhi;

December 08, 2020.



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