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SUPREME COURT OF INDIA
Uday Umesh Lalit, Hemant Gupta, Ajay Rastogi, JJ.
Smriti Madan Kansagra - Appellant
Versus
Perry Kansagra - Respondent
Miscellaneous Application No.1167 of 2021 In Civil Appeal No.3559 of 2020
Decided On : 07-10-2021
Constitution of Kenya, 2010 - Articles 2(5) and 53 - Foreign Judgments - Sections 3, 13(1) and 3(3)(e) 4, 5 & 6 - Children Act - Sections 4, 22, 113, 4 (2), 11 and 76 (3) - Indian Penal Code,1860 - Sections 191, 193, 209, 420, 361, 363, 365 and 368 read with Sections 34 and 120B - Guardianship and Wards Act, 1890 - Section 7 - Cheating and dishonesty – Punishment for kidnapping - Ex-parte ad-interim order was passed by the High Court restraining Perry from removing from the custody of his mother was filed by Perry seeking access was not averse to Perry’s meeting was submitted that meetings be held only under her supervision - High Court permitted Perry to meet under supervision - Similar orders were passed from time to time - Petitioner who is natural father of the minor child master as legal guardian under Section 7 of Guardianship and Wards Act, 1890 - Grant permanent custody of minor child master to Petitioner - Held, Indian Courts which were the Courts of first contact and had complete jurisdiction over must continue to exercise power and jurisdiction to correct the wrongs which occurred as a result of fraudulent conduct on part of Perry - It may be stated here that at every juncture, welfare was and will always continue to be primary consideration for the Indian Courts - He was interviewed by very competent and qualified Counsellors whose reports and assessments have been part of record. Aditya was also interviewed by Trial Court, High Court and this Court - Guardianship Petition filed by Perry in the District Court seeking permanent custody and resultant proceedings arising there from including MAT APP (F.C.) No.30 of 2018 filed in High Court, are dismissed - Central Bureau of Investigation through its Director is directed to initiate appropriate proceedings by registering criminal proceedings against Perry and to secure and entrust the custody - Amount of Rs.1 crore deposited by Perry in this Court, at this stage, an amount be handed over to Smriti towards legal expense incurred or required to be incurred - Rest of money shall continue to be kept in deposit with the Registry till further orders - Application No.1167 of 2021 and connected Interim Applications are disposed of.
ORDER :
UDAY UMESH LALIT, J.
1. Civil Appeal No.3559 of 2020 arose from Guardianship Petition filed by Perry Kansagra (hereinafter referred to as ‘Perry’), father of minor named Aditya Vikram Kansagra (hereinafter referred to as ‘Aditya’), under Sections 7, 8, 10, 11 of the Act1[The Guardianship and Wards Act, 1890] before the District Court, Saket, New Delhi. Perry is a person of Indian origin and Gujarati by descent. His grandfather migrated to Kenya in 1935 and settled there. The family has business interests in Kenya and United Kingdom. Perry holds dual citizenship of Kenya as well as United Kingdom. Perry got married to Smriti Madan Kansagra (hereinafter referred to as ‘Smriti’), an Indian citizen, on 29.07.2007 at New Delhi. Initially, the couple stayed at Nairobi, Kenya but Smriti returned to India in 2009. The couple was blessed with a son – Aditya on 02.12.2009 at New Delhi. Except for a brief period when the couple had gone to Kenya in 2012, Aditya always stayed with Smriti in Delhi till the disposal of aforestated Civil Appeal No.3559 of 2020.
2. On 26.5.2012, Civil Suit (O.S.) No.1604 of 2012 was filed by Smriti against Perry and his parents in the High Court2[The High Court of Delhi at New Delhi] seeking following reliefs:
(b) Pass an order directing the Airport Authority of India, Immigration Authority of India, ‘FRRO’ to ensure compliance of prayer ‘a’ above.
(c) Pass a decree of permanent injunction restraining the Defendants, their agents, representatives, servants and/or attorneys in perpetuity from meeting Plaintiff No.1 without the consent/presence of Plaintiff No.2”
3. On 25.05.2012, an ex-parte ad-interim order was passed by the High Court restraining Perry from removing Aditya from the custody of his mother. In this suit, I.A. No.12429 of 2012 was filed by Perry seeking access to Aditya. Though Smriti was not averse to Perry’s meeting Aditya, it was submitted that the meetings be held only under her supervision. By its order dated 13.07.2012, the High Court permitted Perry to meet Aditya under the supervision of Smriti. Similar orders were passed from time to time.
4. On 06.11.2012, Perry filed Guardianship Petition No.53 of 2012 before the District Courts, Saket, New Delhi praying inter alia:
b. Grant the permanent custody of the minor child master Aditya Vikram Kansagra to the Petitioner;
c. Pending the hearing and final disposal of the Suit, the Petitioner may be allowed to take minor child master Aditya Vikram to visit his parental home in Kenya MS, 166, 167, James Gichuru Road, Lavington Green, Nairobi, Kenya;
d. Pending the hearing the final disposal of the Suit, the Petitioner may be allowed to take minor child master Aditya Vikram for all holidays summers/Diwali/Christmas and any other holiday in India and abroad.”
5. During the pendency of these proceedings, Aditya was admitted to Delhi Public School, Mathura Road, New Delhi. On 31.08.2015, both the parties submitted before the High Court that they would pursue their remedies in the pending guardianship proceedings before the Family Court and that the suit be disposed of. The suit was accordingly disposed of on 31.08.2015.
6. By various orders the visitation schedule was modified by the Family Court from time-to-time permitting Perry to have access to and enjoy visitation with Aditya. The interim pr
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