In child custody matters, rather than the entitlement of either of the parents, what is of paramount importance is the wellbeing and welfare of the child: Supreme Court
The appellant along with maternal grandmother of Aditya (child of both appellant and respondent) 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. The Court held in, Smriti Madan Kansagra v.  Perry Kansagra, (CIVIL APPEAL NO. 3559 OF 2020) The court by majority judgment dated 28.10.2020 held that, the custody of Aditya Vikram Kansagra is handed over by his mother Smriti Madan Kansagra, to the father Perry Kansagra, subject to the directions. Wherein, the respondent was directed to obtain a mirror order from the concerned court in Nairobi to reflect the directions contained in the judgment, within a period of 2 weeks from the date of judgment. Also, 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. Also, 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. Not only this, 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. However, Smriti will not be entitled to take Aditya out of Nairobi, Kenya without the consent of Perry. 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 counsel for appellant contended that, India and Kenya are not reciprocating countries and, as such, the provisions of the Act will not be applicable. In any case, by virtue of Section 3(3) of the Foreign Judgments (Reciprocal Enforcement) Act, CAP, 43 enacted by the Parliament of Kenya, nothing in the Act will apply to proceedings in connection with “the custody or guardianship of children”. However, 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 recognises the general rules of international law as forming part of laws of Kenya. The court was of the view that, “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.”
IN THE CIVIL APPELLATE JURISDICTION MISCELLANEOUS APPLICATION NO. 2140 OF 2020 CIVIL APPEAL NO. 3559 OF 2020 SMRITI MADAN KANSAGRA MISCELLANEOUS APPLICATION NO. 2170 OF 2020 CIVIL APPEAL NO. 3559 OF 2020 O R D E R By majority judgment dated 28.10.2020 Civil Appeal No.35520 was dismissed with certain directions. Paragraphs 20 to 22 of the Judgment for facility are quoted “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 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 accountfor 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 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 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 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 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 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.” Direction issued in paragraph 20 as stated above was modified by a subsequent Order dated 03.11.2020 passed in M.A No.20620 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 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 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 MISCELLANEOUS APPLICATION NO. ____ OF 2020 IN THE MATTER OF FOREIGN JUDGMENTSSections 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 2. THAT the judgment delivered by the Supreme Court of India in Supreme Court Civil Appeal No.35520 Smriti Madan Kangagra V. Perry Kansagra 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 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….” 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 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 ISSUED ON 28 th OCTOBER 2020 IN THE MATTER OF ADITYA VIKRAM KANSAGRAthat 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 27.02.2020given 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 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 c. Smriti be consulted informed if Aditya’s school is III. Directions in the best interest of Aditya Re Continuance of emotional connection with Mother 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 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 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 yearsWith regard to the matter at placitum ‘b’ the learned counsel for the respondent has fairly accepted the 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 13 SCC 231 Page 57 See Page 72 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. 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 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 JudgmentsAct CAP 43 enacted by the Parliament of Kenya 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: India and Kenya are not reciprocating countries and as such the provisions of the Act will not be applicable 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” 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” 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 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 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 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 Orderis hereby approved and 6. That Attorney William Taylor is hereby appointed as escrow agent pursuant to Exhibit C to the Motion for OrderSCC OnLine Del 7511 which was affirmed by this Court in17 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 Reference may be had to Judgment In Re Matter of I W P[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” 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 by Supreme Court of India in case titled as “Smriti Madan Kansagra vs. Perry Kansagra” 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 E0320 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.” 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 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 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 Undertaking of mother of Perry who holds Indian Citizenshipin 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 Adityaof 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. 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 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 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. 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.35520does not call for any further directions and also stands Uday Umesh Lalit New Delhi December 08 2020