Explore the complexities of a cross-border custody dispute through the lens of the court’s in-depth legal analysis. The case delves into various aspects such as temporary custody, visitation rights, financial responsibilities, and the paramount importance of the child’s welfare. The court’s emphasis on compliance, communication, and cooperation between parties showcases a nuanced approach in resolving complex international family law issues. Stay tuned to unravel the legal intricacies of this groundbreaking case.
Facts
- The appellant has sought modifications in Paragraph 19 of the Application.
- The appellant’s case is encapsulated in a Note circulated on 30.11.2020, focusing on five segments.
- Under segment I, the appellant requests the High Court and Family Court protections and directions not appealed, specifically temporary custody/visitation of Aditya during summer and winter vacation for Smriti.
Also Read: Electoral Malpractices in Mayor Election
Arguments
- Mr. Shyam Divan, Senior Advocate for the appellant relied on paragraph 3 of the undertaking dated 02.03.2020 to highlight the absence of clear stipulation about submission to the jurisdiction of Indian Courts.
- The opinion of Ms. Rubeena Dar and of M/s. GMC Advocates were considered, emphasizing the best interest and welfare of the child as paramount in granting mirror orders.
- The respondent accepted subjecting himself to the jurisdiction of the Court by giving an undertaking.
- Certain reliefs were granted to the appellant by the Family Court and the High Court despite granting custody to the respondent.
- The paternal grandmother of Aditya was not bound by Court, based on various directions in the Judgment, including obtaining a Mirror Order.
- Mr. Anunaya Mehta, Advocate for the respondent, highlighted the powers of the High Court of Kenya to exercise jurisdiction based on common law principles and equity.
- The concept of Mirror Order needing to be fully enforceable and reliable for the Court’s reliance was emphasized.
- The Foreign Judgments (Reciprocal Enforcement) Act in Kenya was referred to for provisions regarding enforcement of judgments from countries with reciprocal treatment to Kenya’s judgments.
- The appellant stressed the need for a binding and valid Mirror Order as per the directions in the Judgment.
Also Read: Balancing Power and Transparency: Electoral Bonds Struck Down, Disclosure Mandated
Analysis
- Perry must file a copy of the Order passed by the court in Nairobi before this Court.
- Perry is required to deposit a sum of INR 1 Crore in the Registry of this Court, to be kept in an interest bearing fixed deposit account for two years to ensure compliance with the judgment.
- The court analyzed various matters such as temporary custody/visitation rights, communication between parties, school interactions, and financial responsibilities.
- The well-being and welfare of the child was highlighted as a paramount importance in child custody matters.
- Directions were given regarding phone/video calls, school updates, and visitation rights during vacations.
- The court emphasized the importance of keeping the child’s best interest in mind in all decisions.
- The issue of Mirror Order was also discussed to ensure consistency in legal proceedings between countries.
- Financial responsibilities related to travel and stay expenses were addressed with specific directives.
- The court considered the age and activities of the child when making decisions about custody and visitation rights.
- The court acknowledged the compliance of parties with directions and emphasized the necessity of communication and cooperation.
- Plaintiff’s Motion for Order was granted by the Superior Court, J.D. of Stamford, Norwalk.
- The Mirror Order granted in compliance with the directions of the High Court of Delhi in the case of Dr. Navtej Singh vs State of NCT and another.
- The judgment in the case of “Smriti Madan Kansagra vs Perry Kansagra” was registered in its entirety by order dated 09-11-2020.
- The minor children are to remain in the custody of Jasmeet Kaur, with the Plaintiff having interim visitation rights as per court order.
- The Affidavit of Undertaking of the Plaintiff was approved and ordered to conform with the Order of the High Court of Delhi.
- A Mirror Order was granted by the High Court of Kenya in compliance with the Indian Supreme Court’s judgment in the case of “Smriti Madan Kansagra vs Perry Kansagra”.
- The High Court of Kenya’s order in registering the Judgment is considered sufficient compliance with the direction issued by this Court.
- The appellant is granted liberty to meet Aditya on his Birthdays.
- The appellant shall be allowed one additional trip financed by the respondent, coinciding with Aditya’s Birthday on 2nd of December.
- The appellant will now have two trips to Kenya in a year, one of which will be with her mother.
Also Read: Recall of Resolution Plan Approval: Legal Analysis
Decision
- Custody of Aditya Vikram Kansagra to be handed over from mother Smriti Madan Kansagra to father Perry Kansagra as per specified directions.
- Perry Kansagra to obtain a mirror order from the court in Nairobi reflecting the directions within 2 weeks.
- Father to file a further affidavit confirming compliance with the court’s orders and additional direction.
- No fresh mirror order necessary before taking Aditya to Kenya; registration of the order suffices.
- Miscellaneous applications disposed of, costs to cover airfare and expenses for stay in Kenya.
- Undertakings to be filed by both parents, money deposited by Smriti to be returned if Perry fulfills obligations.
- Perry to get a fresh Kenyan passport for Aditya, Smriti to cooperate.
- Smriti to provide necessary documents for Aditya’s admission to a school in Kenya.
- Interim unsupervised visitation rights for Perry with Aditya during weekends until full custody is granted.
- Future compliance to be reassessed in four weeks before final custody handover.
Case Title: SMRITI MADAN KANSAGRA Vs. PERRY KANSAGRA (2020 INSC 687)
Case Number: MA-002140 / 2020
