IMPORTANT POINT
Contempt of Court – Power of Supreme Court to punish for contempt is not confined to procedure under Contempt of Courts Act – It is within constitutional power of Supreme Court to consider contumacious acts of a contemnor and to punish him/her for the same.

JUDGMENT :

PAMIDIGHANTAM SRI NARASIMHA, J.

1. This decision on Sentencing will be in continuation of our judgment dated 11.07.2022 by which Perry Kansagra (hereinafter referred to as the ‘contemnor’) was convicted for acts of civil as well as criminal contempt of this Court. For passing the consequential order of Sentence, we adjourned the case several times¹ [After the judgment dated 11.07.2002 the case was listed on 22.07.2022, 27.09.2022, 30.09.2022, 17.10.2022 and 21.10.2022] and after being satisfied that sufficient opportunity was given to the contemnor, we proceeded to hear the learned Senior Counsel Ms. Sonia Mathur for Smriti Kansagra (wife of the contemnor and mother of their son Aditya) and the Additional Solicitor General and reserved the case for orders. By this judgment, we will consider and pass appropriate orders of Sentence.

2. The facts necessary for the disposal of this order may briefly be stated as under. The contemnor married Smriti, an Indian citizen, on 29.07.2007 in New Delhi. Initially, the couple stayed in Nairobi, Kenya but Smriti returned to India in 2009, and the couple was blessed with a son - Aditya, on 02.12.2009 in New Delhi. Except for a brief period, when the couple went to Kenya in 2012, Aditya always stayed with Smriti in Delhi. We may mention here itself that this position continued till the custody of Aditya was handed over to the contemnor for moving him to Kenya as per the orders of this Court. The subsequent incidents that led to the recall of the orders of this Court and the judgment of conviction for contempt are all part of the Court proceedings, which unfolded as follows.

3. A Guardianship Petition No. 53 of 2012 was filed by the contemnor before the District Court, Saket, for declaration of legal guardianship. After the contest, the petition came to be allowed by order dated 12.01.2018. Smriti challenged the said order before the High Court of Delhi. By its judgment dated 25.02.2020, the High Court affirmed the decision of the District Court granting custody of Aditya to his father, the contemnor. By a separate order passed on the same date, the High Court recorded the willingness of the contemnor and his mother, holding an Indian passport, to ensure compliance with the order of the Family Court granting continued access and visitation rights to Smriti. The direction of the High Court that the contemnor shall also file an undertaking before the Indian Embassy that he would submit to the jurisdiction of the Indian Courts was complied with, and it is part of the court record.

4. Smriti challenged the decision of the High Court before this Court in Civil Appeal No. 3559 of 2020. The majority decision of this Court, while affirming the findings of the High Court, disposed of the Civil Appeal on 28.10.2020 with the following observations:

“(a) To safeguard the rights and interest of Smriti, we have considered it necessary to direct Perry to obtain a mirror order from the concerned court in Nairobi, which would reflect the directions contained in this Judgment.

(b) Given the large number of cases arising from transnational parental abduction in inter-country marriages, the English courts have issued protective measures which take the form of undertakings, mirror orders and safe harbour orders, since there is no accepted international mechanism to achieve protective measures. Such orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The courts have found mirror orders to be the most effective way of achieving protective measures.

(c) 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 t