Delve into the intricate legal analysis and jurisdictional challenges in a cross-border custody case. The courts’ considerations and decisions regarding international family law and jurisdictional disputes play a crucial role in this complex legal situation. Stay tuned for an in-depth look at the complexities of navigating legal systems in matters of custody and guardianship involving multiple countries.
Facts
- Perry filed Petition No. E 301 of 2021 seeking a declaration that orders of the Court were invalid and for a permanent injunction against taking Aditya outside the High Court’s jurisdiction in Kenya.
- Smriti filed I.A. No. 108665 of 2021 to restrain Perry from taking any actions that would impede the Court’s orders, citing Perry’s contumacious conduct.
- Smriti also filed I.A. No. 109369 of 2021 related to documents received on 31.08.2021 from the High Court of Kenya, highlighting Perry’s conduct.
- Various legal proceedings and orders regarding the custody and visitation of Aditya between Perry and Smriti in India and Kenya were outlined.
- Disputes over Aditya’s custody and access rights, Perry’s undertakings to submit to court jurisdictions, and other legal actions were detailed.
- The history of legal filings, travel between Kenya and India, and disputes over Aditya’s custody and visitation were outlined in the document.
- The Court’s orders granting custody to Perry but also granting visitation rights to Smriti were discussed.
- The High Court of Kenya granted custody of Aditya to Perry in a hearing under an urgent certificate.
- The High Court affirmed the decision for Perry to have custody of Aditya following the application.
- The court ordered that Perry apply for a Kenyan passport for Aditya if not already done.
- Smriti was granted access to talk to Aditya through audio/video calls for at least 10 minutes daily at a convenient time.
- Smriti was allowed to freely exchange emails, letters, and correspondences with Aditya without hindrance.
- Smriti was given temporary custody of Aditya during summer and winter vacations, and permitted visits to Nairobi, Kenya if mutually agreed upon.
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Arguments
- The custody obtained by Perry over the Kenyan Minor is deemed illegal and invalid.
- The Supreme Court of India does not have jurisdiction over matters concerning the custody of the Minor, who is now a resident and citizen of Kenya.
- The orders did not consider the welfare, feelings, wishes, and best interest of the Minor when compelling the Minor to get an OCI card and travel to India without ascertaining the emotional needs and wishes of the Minor.
- Due to the COVID-19 pandemic, it is argued that compliance with the visitation direction to India would not be in the best interest of the child’s health.
- There were logistical issues presented in Aditya traveling to India beyond the Respondent’s control, similar to the Respondent’s inability to travel to India during the pandemic.
- The opinion from GMC Advocates emphasizes that the best interest and welfare of the child, as per Kenyan laws, should be paramount, justifying the grant of mirror orders.
- There are allegations of a well-planned conspiracy by Perry to obtain custody and then defy the court orders.
- It is emphasized that the party approaching the court, particularly in child custody matters, must come with clean hands.
- There is a dispute regarding the validity of the Mirror Order and concerns about jurisdiction and enforcement in Kenya.
- The Respondent is willing to facilitate visitation of the Appellant with the child in Kenya.
- Perry expresses concerns about the humiliation of forcing Aditya to get an OCI Card, the lack of wishes ascertainment by the court, and jurisdiction issues.
- Efforts are made to address the apprehensions raised by Perry and the potential violation of the child’s rights and freedoms.
- The father’s affidavit points out issues related to diplomatic immunity and obtaining orders against Government Officials at the Indian Embassy in Nairobi.
- The Counsel for Smriti pushes for the recall of the court’s previous judgments and initiation of proceedings in Contempt jurisdiction.
- There is a mention of booking flights for Aditya to travel between Nairobi and India, with considerations for the child’s best interest and welfare amidst the pandemic.
- The conduct of Perry was deemed indefensible.
- Perry violated solemn undertakings given to the High Court and this Court.
- Perry now challenges the jurisdiction of Indian Courts after submitting to them.
- Perry’s conduct may be considered contumacious.
- Aditya’s OCI card status was attached to his earlier passport, which was lost.
- A new passport has been issued to Aditya, but the passport number does not appear in the OCI card.
- Aditya’s custody was obtained fraudulently, and a request is made for the Central Bureau of Investigation to register a crime against Perry.
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Analysis
- Perry is responsible for bearing the cost of Smriti’s return air-ticket for annual travel from India and accommodation for seven days.
- Smriti must file an undertaking confirming compliance with Family Court and Supreme Court directions.
- The minor is a dual citizen of Kenya and the United Kingdom, with residency in Kenya, and India has no jurisdiction over personal matters involving the minor.
- All rights of the minor are exclusively governed by the Children Act of Kenya.
- Allegations against the 1st Respondent suggest malicious intent regarding obtaining an OCI card for the minor.
- 1st Respondent’s actions are not in the best interest of the child, contrary to Article 53 of the Kenyan Constitution, and may expose the child to health risks during the Covid-19 pandemic.
- The orders issued by the Supreme Court of India are not aligned with the rule of law, human rights, and fundamental freedoms guaranteed in the Kenyan Bill of Rights.
- India is not declared a reciprocating country for the purpose of the Foreign Judgments (Reciprocal Enforcement) Act in Kenya.
- Kenyan Courts have exclusive jurisdiction over Kenyan children, and foreign judgments in custody or guardianship matters are not recognized.
- A sworn undertaking by Perry to comply with visitation rights granted to Smriti was filed in the High Court of Kenya.
- Primary jurisdiction lies with the court where the child resides, and sending the child to India may result in loss of jurisdiction by Kenyan Courts.
- Kenya lacks jurisdiction to recognize, enforce, or register foreign judgments related to custody or guardianship of Kenyan children.
- Forcing the minor to acquire an OCI card and travel to India amid the Covid-19 pandemic violates Kenyan laws and the child’s rights.
- The orders issued by the Supreme Court of India regarding the minor are invalid and unenforceable in Kenya.
- The Respondent declined to comply with the directions of the court for allowing Aditya’s vacation visitation with the Appellant.
- The Respondent raised concerns about Aditya traveling to India during the Covid pandemic, citing the risks involved.
- The Appellant insisted on Aditya’s visitation, highlighting the reduced Covid cases in Delhi and the safety measures in place for travel.
- The Court emphasized the importance of Aditya’s welfare and best interests in the visitation arrangements.
- The Appellant’s repeated requests for vacation access were met with resistance from the Respondent, who cited pandemic-related concerns.
- The Court considered the impact of continued physical separation on Aditya, given his close attachment to his mother and grandmother.
- The Respondent’s failure to comply with court orders, undertakings, and mirror orders was noted and deemed obstructive to Aditya’s welfare.
- Fraud in judicial proceedings can lead to the setting aside of judgments obtained through fraud or perjury.
- Constructive fraud at a belated stage may not be sufficient to set aside a judgment procured by perjury.
- High Court of Kenya’s order in compliance with the directions of the Supreme Court of India in the case ‘Smriti Madan Kansagra vs Perry Kansagra’ deserves due deference.
- Actual fraud, not mere constructive fraud, must be shown to impeach a judgment.
- Fraud unravels everything, and a judgment obtained by fraud is considered a nullity.
- Mirror orders are passed to safeguard the interests of minor children during transitions between jurisdictions.
- Fraud practiced on the court is grounds for vacating a judgment.
- Fraudulent misrepresentation, deceit, and extrinsic fraud can all invalidate court judgments.
- The application dated 20 May, 2014 seeking enforcement of a decree made by a USA court in custody or guardianship proceedings is without merit.
- The court has no jurisdiction to deal with the enforcement of a foreign decree in matters related to custody or guardianship of a child.
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Decision
- Perry was permitted to take Aditya to Kenya with a one-time travel document from the High Commission of Kenya
- Smriti filed an undertaking to abide by the court’s directions without demur
- An amount of Rs.25 lakhs was handed over to Smriti for legal expenses
- Notice to Perry for possible contempt proceedings for violating undertakings
- Aditya was taken to Kenya by Perry in December 2020 as per court orders
- Various specific directions were given regarding Aditya’s custody, passports, schooling, and communication with mother
- Orders issued to locate Aditya, renew his OCI, and arranging his return to India
- Undertakings to be filed by Perry and Smriti to comply with court’s directions
- Passports to be deposited with the court during visitation periods
- Previous judgements and orders related to custody were recalled and dismissed
- Central Bureau of Investigation directed to initiate proceedings against Perry
- Indian authorities directed to assist Smriti in securing custody of Aditya
- Disposal of an application with costs and representation of Perry by specific advocates
Case Title: SMRITI MADAN KANSAGRA Vs. PERRY KANSAGRA (2021 INSC 632)
Case Number: MA-001167 / 2021
