Custody Battle: Supreme Court Grants Father Custody in Cross-Border Dispute (28 October 2020)

Case Background

Smriti, an Indian citizen and lawyer, married Perry, a Kenyan citizen of Indian origin, in New Delhi on 29 July 2007. After the marriage, Smriti moved to Nairobi, Kenya, where Perry and his family had established a large business. In 2009, Smriti returned to India for childbirth, and their son, Aditya, was born on 2 December 2009 in New Delhi. Although Aditya was an Indian citizen by birth, his parents decided that he would hold dual citizenship of Kenya and the UK.

On 1 July 2010, Aditya went to Kenya with his parents. In February 2012, the family visited a school in Kenya for Aditya’s potential admission. On 10 March 2012, Aditya came to New Delhi with both his parents on a return ticket, scheduled to go back to Kenya on 6 June 2012. Perry returned to Kenya on 26 April 2012. However, on 26 May 2012, Smriti filed a suit for permanent injunction against Perry and his parents before the Delhi High Court, marking the beginning of their legal battle for the custody of their child.

Timeline

Course of Proceedings

Initially, the Delhi High Court passed an ex-parte order on 28 May 2012, restraining Perry from removing Aditya from Smriti’s custody. Perry then filed an application seeking visitation rights, which the High Court granted, allowing him to meet Aditya under Smriti’s supervision.

On 6 November 2012, Perry filed a Guardianship Petition before the District Courts, Saket, New Delhi, seeking to be declared Aditya’s legal guardian and to gain permanent custody. During the proceedings, the Family Court allowed Perry to meet Aditya for specified hours every month, under the supervision of a counsellor.

The Family Court, on 12 January 2018, granted permanent custody to Perry at the end of the academic session 2017-18. Smriti appealed this decision before the Delhi High Court which dismissed her appeal on 25 February 2020. Aggrieved by this, Smriti filed a Special Leave Petition before the Supreme Court.

Legal Framework

The Supreme Court considered the following key legal provisions:

• Section 7, 8, 10 and 11 of the Guardian and Wards Act, 1890: These sections deal with the power of the court to appoint a guardian, the persons entitled to apply for guardianship, and the procedure for such appointments.
• Section 6(a) of the Hindu Minority and Guardianship Act, 1956: This section specifies that the father is the natural guardian of a minor child.
• Section 13 of the Hindu Minority and Guardianship Act, 1956: This section states that the welfare of the minor is the paramount consideration in the appointment of a guardian.
• Section 17 of the Guardian and Wards Act, 1890: This section outlines the matters to be considered by the court while appointing a guardian, including the minor’s preference if they are old enough to form an intelligent one.

The Court emphasized that the welfare of the child is the paramount consideration in all custody matters, as mandated by Section 13 of the Hindu Minority and Guardianship Act, 1956.

Arguments

Submissions of Smriti:

• Smriti argued that she had sacrificed her legal career to care for Aditya and had provided him with a holistic upbringing, excelling in academics and extracurricular activities.
• She claimed that Perry was a racist, an alcoholic, and an adulterer, making him unfit to be Aditya’s guardian. She also raised concerns about the Solai Dam burst tragedy in 2018, which led to a criminal case against Perry, arguing it would be detrimental to Aditya’s well-being.
• Smriti asserted that she had always encouraged Aditya to maintain a relationship with his father and paternal grandparents.

Submissions of Perry:

• Perry contended that Smriti had engaged in parental alienation by restricting his access to Aditya, filing a suit to restrain him from meeting the child without her consent, and representing Aditya as a child of a “single parent” in official documents.
• He argued that Smriti had opposed his suggestions to admit Aditya to an international school and was unwilling to share Aditya’s progress reports. He also highlighted Aditya’s poor attendance in school.
• Perry argued that Aditya, being a dual citizen of Kenya and the UK, would have better educational opportunities and future prospects if he lived with him.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. What should be the dispensation to be followed with respect to the custody of the minor child, Aditya, who is now 11 years of age, till he attains the age of majority in 7 years’ time?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court relied upon the following authorities:

Judgment

The Supreme Court, by majority, dismissed Smriti’s appeal and upheld the High Court’s decision to grant custody of Aditya to Perry. The Court’s decision was based on several factors, including Aditya’s preference, his dual citizenship, the educational opportunities available to him in Kenya and the UK, and the need for him to connect with his paternal family and culture.

How each authority was viewed by the Court:

• The Supreme Court followed the principle laid down in Rosy Jacob v. Jacob A Chakarmakkal [CITATION] that the welfare of the child is paramount and children are not mere chattels.
• The Court relied upon V. Ravichandran (2) v. Union of India & Ors. [CITATION] that custody matters are to be decided based on the child’s best interest, not legal rights of parties.
• The Court followed Gaurav Nagpal v. Sumedha Nagpal [CITATION] that the term “welfare” must be construed widely, including moral and ethical welfare.
• The Court relied on Vivek Singh v. Romani Singh [CITATION] that welfare of the child includes an environment conducive to optimal growth and development.
• The Court followed Nil Ratan Kundu v. Abhijit Kundu [CITATION] that the paramount consideration in custody cases is the welfare and well-being of the child.
• The Court referred to Re L (minors) (wardship: jurisdiction) [CITATION] that the nationality of the child is an important factor in determining welfare.
• The Court followed the principle that the welfare of the minor is the paramount consideration in deciding custody disputes as per Section 13 of the Hindu Minority and Guardianship Act, 1956.
• The Court followed Section 17 of the Guardian and Wards Act, 1890, which outlines the matters to be considered while appointing a guardian, including the minor’s preference.
• The Court referred to In re P (A Child: Mirror Orders) [CITATION] for the use of mirror orders to safeguard against child abduction.
• The Court relied on In re W (Jurisdiction : Mirror Order) [CITATION] for the principle that mirror orders are supportive of foreign orders and ensure parents are equally bound.
• The Court followed Arjun Pandit Rao Khotkar v. Kailash Kushanrao Gorantyal [CITATION] that certificate under Section 65B of the Evidence Act is a condition precedent for admissibility of electronic records.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors, with a strong emphasis on the child’s preference and the need for his holistic development. The Court recognized the importance of the child’s connection with both parents but ultimately prioritized the child’s desire to live with his father, his dual citizenship, and the educational opportunities available to him in Kenya and the UK.

Logical Reasoning:

The Court also considered and rejected alternative interpretations of facts and claims made by Smriti, including allegations of racism, alcoholism, and marital infidelity against Perry.

The majority opinion emphasized that the child’s preference was a crucial factor in the decision-making process, along with the need for him to have better educational opportunities and exposure to the culture of the country where he would likely spend his adult life.

The dissenting opinion by Justice Hemant Gupta, however, emphasized that the child has been living in India for the last 11 years and is well settled in his present environment. The dissenting judge highlighted that the father was not a truthful person and there was no evidence that the mother was not capable of taking care of the child.

The majority opinion quoted the following from the report of the Counsellor dated 21.07.2016:

“…Aditya surprisingly shows more affection towards Perry and his demeanour sounds genuine…Aditya is ready to go to Kenya. He also mentioned that if he can’t go to Kenya now, he would do so when he grows up a bit. He talked about staying in England for further education which his Papa would provide for. His affection and bond with his father seemed genuine and not something that appears tutored or forced in some manner.”

The Court also noted the following from the High Court’s order dated 11.05.2016:

“We also note that the child was comfortable in his interaction with his father and grandparents in court. The child has expressed happiness at his visitations with his father and grandparents. He unreservedly stated that he looks forward to the same. Master Aditya Vikram Kansagra is also able to identify other relatives in Kenya and enthusiastically refers to his experiences in that country. It is apparent that the child has bonded well with them.”

The majority opinion also discussed the importance of mirror orders, stating that:

“The object of a mirror order is to safeguard the interest of the minor child in transit from one jurisdiction to another, and to ensure that both parents are equally bound in each State.”

Key Takeaways

• In cross-border custody disputes, the child’s preference, when clearly expressed, carries significant weight.
• The child’s citizenship and future prospects in a particular country are important factors in determining custody.
• Courts may order mirror orders to ensure compliance with custody arrangements in different jurisdictions.
• The welfare of the child is the paramount consideration, and courts will consider various factors to ensure the child’s holistic development.
• Parental alienation is a serious concern and courts will take note of attempts by either parent to alienate the child from the other parent.

Directions

The Supreme Court issued the following directions:

• Perry was directed to obtain a mirror order from the concerned court in Nairobi, reflecting the directions in this judgment, within two weeks.
• Perry must deposit INR 1 Crore in the Registry of the Supreme Court as a fixed deposit for two years to ensure compliance with the directions.
• Perry must apply for a fresh Kenyan passport for Aditya, with Smriti’s cooperation.
• Smriti must provide the Birth Certificate and Transfer Certificate from Delhi Public School to enable Perry to secure admission for Aditya in a Kenyan school.
• Smriti will have access to Aditya through video conferencing for one hour on weekends and Aditya can contact her as and when he wants.
• Smriti will have visitation rights for 50% of Aditya’s annual vacations, either in New Delhi or Kenya.
• Perry will bear the cost of one trip a year for Smriti and her mother to visit Aditya in Kenya for one week.
• Smriti is not entitled to take Aditya out of Nairobi without Perry’s consent.
• Both Perry and Smriti must file undertakings before the Supreme Court to abide by its directions.
• Perry will have unsupervised visitation rights with overnight access during weekends when he visits India until he is granted full custody.

Development of Law

The ratio decidendi of this case is that in cross-border custody disputes, the courts should prioritize the child’s welfare, which includes considering the child’s preference, citizenship, educational opportunities, and connection with both parents.

There is no change in the previous position of law but the Court has emphasized the importance of mirror orders in cross-border custody cases to ensure that the welfare of the child is protected in different jurisdictions.

Conclusion

The Supreme Court, by majority, granted custody of Aditya to his father, Perry, emphasizing the child’s preference and the importance of his dual citizenship and future prospects. The judgment underscores the complexities of international family law and the paramount consideration of the child’s welfare in custody disputes. The dissenting opinion highlights that the child has been living in India for the last 11 years and is well settled in his present environment.