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Court should be guided by what would best subserve the welfare of the child; Parens Patriae: SC

Courts while exercising Parens Patriae jurisdiction would be guided by the paramount

consideration of what would best subserve the welfare of the child : SC

Smriti Madan Kansagra v. Perry Kansagra

Civil Appeal No. 3559 of 2020 (Arising out of SLP (C) No. 12910/ 2020 (Diary No.8161 of 2020)

30 October, 2020.

The Hon’ble Supreme Court comprising of Justice Uday Umesh Lalit, Justice Indu Malhotra and Justice Hemant Gupta held in a judgment that the courts while exercising parens patriae jurisdiction would be guided by the sole and paramount consideration of what would best subserve the interest and welfare of the child, to which all other considerations must yield.

The ratio of the Judgment is 2:1. Hon’ble Justice Indu Malhotra authored the binding judgment on behalf of Justice Uday Uday Lalit and herself. Hon’ble Justice Hemant Gupta authored a separate dissenting judgment.

The present Appeal arises out of a Guardianship Petition filed by the Respondent father under Section 7, 8, 10 and 11 of the Guardian and Wards Act, 1890 for the custody of the minor child Aditya Vikram Kansagra, before the District Courts, Saket, New Delhi. The Appellant mother Smriti is an Indian citizen, who was a practicing lawyer prior to her marriage to the Respondent Perry, in New Delhi. The Respondent father Perry is of Indian origin, and Gujarati descent, whose family shifted to Kenya and settled there since the last three generations, when his grandfather migrated in 1935. Perry and his family have been settled in Kenya, where they have established a vast business establishment in Kenya and U.K., and Perry holds a dual citizenship of Kenya and the U.K.

Smriti got married to Perry on 29.07.2007 at New Delhi. After marriage, Smriti shifted to Nairobi, Kenya and settled in her matrimonial home. 5. In 2009, Smriti returned to India for childbirth. The son Aditya Vikram Kansagra was born on 02.12.2009 at New Delhi. Even though the child was an Indian citizen by birth, a considered decision was evidently taken by his parents, that he would hold a dual citizenship of Kenya and UK. On 01.07.2010 about six months after his birth, Aditya went to Kenya with his parents. Smriti lived with Perry in Kenya for 5 years after her marriage, and occasionally visited Delhi since her mother lives in India.

On 10.03.2012, Aditya came with both his parents to New Delhi on a return ticket, and was scheduled to return to Kenya on 06.06.2012. Perry returned to India on 22.04.2012 to spend time with his family i.e. Smriti and Aditya, and stayed with them at Smriti’s flat till 26.04.2012. On 26.04.2012, he returned to Kenya.

On 26.05.2012, Smriti filed a Suit for Permanent Injunction bearing C.S. (O.S.) 1604 of 2012 against Perry and his parents, before the Delhi High Court. This was the starting point of the commencement of litigation between the parties for the custody of the minor child.

Subsequently, a suit was filed by Perry in the Sukat Family court. the family after detailed deliberations held in favour of Perry. An appeal was preferred to the High Court, in which the High Court affirmed the judgment of the Family Court. it is against this judgment the present appeal is preferred.

Among other things, Smriti alleged that (i) Perry was a racist and an alcoholic who would turn violent, and misbehave socially after drinking, and would not be a fit and suitable guardian for Aditya. (ii) Smriti has alleged marital infidelity against Perry, and submitted that he was in an adulterous liaison. It was submitted that he had got into an affair with a woman in Mozambique called Sonia, which came to her knowledge in April 2012. (iii) It was further submitted that the Solai Dam burst tragedy which took place in May 2018 on the Solai farms owned by Perry, led to the death of 48 persons, and resulted in widespread hostility and anger against Perry and his family. Perry was facing trial on the charge of manslaughter before the Kenyan criminal courts. It would therefore not be in the interest of the child, if Perry who is facing a criminal trial in these cases, is made the guardian of Aditya.

On behalf of the respondents, it was submitted that (i) Smriti had indulged in parental alienation. The first step was when she came back to India in March 2012, she filed a Suit before the Delhi High Court, wherein she had inter alia prayed for a permanent injunction restraining Perry and his parents from even meeting the child in perpetuity, without her consent presence. (ii) During the past 8 years, Perry was provided with very limited access and visitation rights with Aditya, even though he and his parents were travelling for 36 hours every month to meet him. (iii) It was submitted on behalf of Perry that her response showed that she was using the custody of Aditya to work out a more beneficial settlement for herself, rather than consider the best interest of the child.

The Supreme Court, after referring to its judgments in Rosy Jacob v. Jacob A Chakarmakka (1973) 1 SCC 840, V.Ravichandran (2) v Union of India & Ors (2010) 1 SCC 17, Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42, referred to section 13 of the Minority and Guardianship Act, 1956 and section 7 of the Guardians and wards Act, 1890 and held the following:

It is a well settled principle of law that the courts while exercising parens patriae jurisdiction would be guided by the sole and paramount consideration of what would best subserve the interest and welfare of the child, to which all other considerations must yield. The welfare and benefit of the minor child would remain the dominant consideration throughout.

The courts must not allow the determination to be clouded by the inter se disputes between the parties, and the allegations and counter allegations made against each other with respect to their matrimonial life. (Para 11.1)

On the above regard, the court held:

In the present case, the issue of custody of Aditya has to be based on an overall consideration of the holistic growth of the child, which has to be determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life. (Para 11.6)

While placing reliance on section 17(3) of the Guardians and Wards Act, 1890, the court deliberated in detail on the records of the conversations with the child by the Family Court, High court, and the counsellor appointed by the High court and as well as by the Supreme Court,

We place reliance on the Report of the Counsellor dated 21.07.2016, wherein it has been recorded that Aditya idolizes his father Perry, and was ready to go to Kenya. The affection and bond of the child with his father was found to be genuine, and not something which was tutored or forced in any manner. The Counsellor recorded that Aditya surprisingly showed more affection towards Perry, and that his demeanour sounded genuine.
As per Section 17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will.
In view of the various personal interactions which the courts have had at different stages of the proceedings, from the age of 6 years, till the present when he is now almost 11 years old, we have arrived at the conclusion that it would be in his best interest to transfer the custody to his father. If his preferences are not given due regard to, it could have an adverse psychological impact on the child. (Para 12 (e))

The Court also relied on other considerations for the welfare of the child such as the Nationality of the Child, educational opportunities and the need for training for his later role as the heir apparent of the Kansagra family, for placing reliance on the custody of the child with his father. The court also discarded the allegations of the Smriti that the respondent is a racist and an alcoholist on the ground of lack of substantive evidence.

With regard to allegation of marital infidelity the court, after referring to section 65B of the Indian Evidence Act, 1872 and its judgment in Arjun Pandit Rao Khotkar v. Kailash Kushanrao Gorantyal 2020 SCC Online SC 571, held the certificate submitted by Smriti is not admissible in the following words:

The certificate u/S. 65B produced by Smriti merely states that the content of the emails placed on record were the same as the content of the emails on her inbox. This certificate does not certify the source of the messages allegedly received on the Blackberry of Perry, which were transferred to her cellphone. In the absence of a certificate in accordance with S.65B, with respect to the source of the messages, we cannot accept the same as being genuine or authentic. (Para 16)

On the above regard the Court granted relief in favour of the respondent and affirmed the order of the courts below. The Court also directed the counsel to obtain a mirror order from the court having jurisdiction over such matters in Kenya. While making this observation, the court referred to the judgments of the Court of Appeals In re P (A Child: Mirror Orders), [2000] I FLR 435 and In re W (Jurisdiction : Mirror Order), [2014] 1 FLR 1530 : [2011] EWCA Civ 703 and its judgment in Jasmeet Kaur v. State (NCT of Delhi) and Anr., 2019 (17) SCALE 672 and held the following:

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. (Para 19 (c))

To conclude, the Court issued a set of directions to be complied by both the parties. The Court also directed the same to be complied within one week from the date of the Judgment. Consequently, the appeal was dismissed with no order as to costs.

Kalidharun K M



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