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SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, HEMANT GUPTA, JJ.
Smriti Madan Kansagra – Appellant
Versus
Perry Kansagra – Respondent
Civil Appeal No. 3559 of 2020, SLP (C) No. 12910 of 2020, Diary No. 8161 of 2020
Decided On : 28-10-2020
Certainly. Based on the provided legal document, here are the key points summarized:
The case involves a dispute over the guardianship and custody of a minor child, Aditya Vikram Kansagra, born in India in 2009, with the custody issue being decided primarily based on the child's best interests and welfare (!) (!) .
The Court emphasized that the welfare of the child is the paramount consideration in custody disputes, and the child's age, maturity, preferences, and environment are critical factors (!) (!) (!) .
The child has a strong bond with both parents and extended family members, including paternal grandparents, and has expressed a desire to travel and study abroad, particularly in Kenya and the UK (!) (!) (!) (!) .
Personal interactions with the child by the Court, Child Counsellor, and Mediator reveal that the child is well-balanced, articulate, and shows genuine affection for both parents, with a notable attachment to his father and paternal grandparents (!) (!) (!) (!) (!) (!) .
The Court considered the child's nationality, which is dual citizenship of Kenya and the UK, and noted that his future educational and cultural environment would be best served in Kenya and the UK, aligning with his background and future prospects (!) (!) (!) (!) .
The Court found that the mother, Smriti, has provided a nurturing environment in India, and her decision to leave her legal career to care for the child was in his best interest. She also actively participates in his upbringing and extracurricular activities (!) (!) (!) (!) .
Allegations by the mother of parental alienation, parental misconduct, and improper conduct by the father were considered but found unsubstantiated or not credible, especially regarding allegations of racism, alcoholism, or marital infidelity (!) (!) (!) (!) (!) .
Evidence concerning the child's exposure to materialistic influences, such as the purchase of multiple electronic devices, was discussed, with concerns raised about pampering and its impact on the child's development (!) (!) .
The Court acknowledged that the mother had filed suits and injunctions to restrict the father's access and meet the child only under supervision, which the Court viewed as parental alienation. However, the Court also noted that the father had been exercising his visitation rights regularly and that these actions did not constitute parental alienation (!) (!) (!) .
The Court recognized that the father's criminal proceedings related to a dam burst incident in Kenya, which resulted in loss of life, were pending at the time of judgment. Nevertheless, the Court deemed this not to be a valid reason to deny guardianship, given the acquittal and the natural calamity nature of the incident (!) (!) .
The Court highlighted the importance of international jurisdiction principles, including the use of mirror orders, to ensure the child's protection during transnational custody arrangements, and emphasized that the primary jurisdiction is where the child is ordinarily resident (!) (!) (!) .
The Court directed that the child's custody be handed over to the father, Perry, subject to several conditions including the filing of a mirror order from the Kenyan court, deposit of a substantial financial guarantee, and arrangements for the child's travel, education, and communication with the mother (!) (!) (!) (!) .
The Court also ordered that the mother be granted interim custody during school vacations and that she be given access through communication channels such as video calls, emails, and visits, with safeguards to prevent the child's removal from jurisdiction (!) (!) (!) .
The Court dismissed the appeal filed by the mother, affirming the earlier judgments favoring the father, and dismissed the allegations of parental alienation and misconduct as unsubstantiated or not proven (!) (!) .
Overall, the Court prioritized the child's best interests, considering his emotional bonds, future educational prospects, cultural environment, and the ability of each parent to provide a nurturing and stable environment, ultimately favoring custody with the father, Perry, with specific safeguards and visitation arrangements for the mother (!) (!) (!) (!) (!) .
Please let me know if you need further analysis or specific legal advice related to this case.
| Table of Content |
|---|
| 1. custody dispute initiated under guardianship act. (Para 1 , 2 , 3 , 4) |
| 2. litigation history and interim custody rulings. (Para 5 , 6 , 7 , 8) |
| 3. arguments presented by parties regarding custody and alienation. (Para 9 , 10 , 11 , 12 , 13 , 14) |
| 4. discussions on evidence affecting custody decision. (Para 15 , 16 , 17 , 18) |
| 5. conclusion on child's welfare and future prospects. (Para 19 , 20 , 21) |
JUDGMENT :
INDU MALHOTRA, J.
Leave granted.
1. 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.
2. 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 Gujrati 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.
3. Prior to marriage, Smriti and her mother visited Kenya for a week to see the place, and satisfy themselves of the family background, social and financial status, and lifestyle of Perry and his family.
4. 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.
In February 2012, the entire family had gone to see a school in Kenya, where Aditya would be admitted for his education.
6. 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.
7. 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.
8. 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. The proceedings which ensued are briefly outlined hereinbelow. In para 11 of the Plaint it is stated that :
"11. It bears mention that the Plaintiff No.2 and the Defendant No. 3 were extremely happy with each other after their marriage. They lived in a state of conjugal happiness, spend time together, derive joy from each other's company and would travel together and the Plaintiff No.2 would participate, assist and guide the Defendant No.3 in his business. They had a happy time till the time the Plaintiff No.1 was born on 02.12.2009. The defendants were overjoyed of the birth of the male heir and there were lots and lots of celebrations in India as well as in Kenya."
In the Suit, the following reliefs were prayed for :
"(a) Pass a decree for permanent injunction restraining the defendants, their agents, representatives, servants and/or attorneys in perpetuity from in any manner removing the child either from the lawful custody of the Plaintiff No. 2 or removing the child from Delhi; the jurisdiction of this Hon'ble Court or accessing the child in his School "Toddlers Train" at Sunder Nagar, New Delhi.
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