Supreme Court Modifies Child Custody Order: Smriti Madan Kansagra vs. Perry Kansagra (2020)

LEGAL ISSUE: Modification of child custody and visitation rights. CASE TYPE: Family Law – Child Custody. Case Name: Smriti Madan Kansagra vs. Perry Kansagra. [Judgment Date]: December 08, 2020

Date of the Judgment: December 08, 2020. Citation: Not Available. Judges: Uday Umesh Lalit, Indu Malhotra, Hemant Gupta. The Supreme Court of India addressed a plea to modify its previous order regarding the custody of a child. The core issue revolved around balancing the child’s welfare with the visitation rights of the mother, following an earlier judgment that granted custody to the father. This order was delivered by a three-judge bench comprising Justices Uday Umesh Lalit, Indu Malhotra, and Hemant Gupta.

Case Background

This case involves a dispute between Smriti Madan Kansagra (the mother) and Perry Kansagra (the father) regarding the custody of their child, Aditya Vikram Kansagra. The Supreme Court had previously issued a judgment on October 28, 2020, which granted custody to the father, Perry Kansagra, with certain directions. The mother, Smriti Madan Kansagra, filed a miscellaneous application seeking modifications to the original order, particularly concerning visitation rights and the child’s well-being. The father had been directed to obtain a mirror order from a Kenyan court, deposit a sum of INR 1 crore, and obtain a fresh Kenyan passport for the child. The mother was granted visitation rights and the ability to engage with the child via video conferencing.

Timeline

Course of Proceedings

The Supreme Court initially dismissed the civil appeal on October 28, 2020, directing the father, Perry Kansagra, to obtain a mirror order from a Kenyan court reflecting the directions in the judgment. The father was also required to deposit INR 1 crore and obtain a fresh Kenyan passport for the child. The mother, Smriti Madan Kansagra, was granted video conferencing access and visitation rights. Following this, the respondent moved an application in the High Court of Kenya at Nairobi seeking registration of the Judgment and for obtaining ‘Mirror Order’. Subsequently, the mother filed a miscellaneous application seeking modifications to the original order, which is the subject of this judgment.

Legal Framework

The case references the Foreign Judgments (Reciprocal Enforcement) Act, CAP 43 of Kenya, which deals with the enforcement of judgments from countries that reciprocate similar treatment to Kenyan judgments. The court also considered Sections 4, 22, and 113 of the Children Act of Kenya, and Article 53 of the Constitution of Kenya, 2010, which emphasize the best interests and welfare of the child. The Judicature Act of Kenya, which empowers the High Court of Kenya to exercise jurisdiction in accordance with common law principles and the doctrine of equity, was also considered. Article 2(5) of the Constitution of Kenya, 2010, which recognizes the general rules of international law as part of the laws of Kenya, was also noted.

Arguments

Appellant’s (Smriti Madan Kansagra) Submissions:

• I. Protections and directions by the High Court and Family Court which were not appealed:
  • Smriti be granted temporary custody/visitation of Aditya during summer and winter vacation.
  • Smriti be permitted to freely exchange e-mails, letters, and other correspondence with Aditya without any hindrance by Respondent or his family.
  • Smriti shall be entitled to talk to Aditya over video call/audio calls for at least 10 minutes everyday at mutually agreed time.
  • Perry’s undertaking dated 02.03.2020 that 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.
  • Perry’s mother’s undertaking dated 27.02.2020 given 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.
  • 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 Aditya’s school.
  • Smriti be consulted /informed if Aditya’s school is changed.
• 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 up.
  • 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.
  • Smriti to have liberty to meet Aditya on his birthday.
  • 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 and Health:
  • 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.
  • 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 years.
• V. Miscellaneous Directions:
  • Perry to get the OCI renewed and keep the same valid till Aditya turns 18.
  • Both parties to file undertakings incorporating the directions of the Court and an appropriate mirror order may be filed. Smriti be provided with the advance copy of the paper work being filed in Kenya for obtaining mirror order in Kenya.

The appellant argued that the High Court and Family Court had granted certain reliefs that were not appealed, and thus should not have been reduced by the Supreme Court. She emphasized the need for continued emotional connection with the child, access to his education, and involvement in his health decisions. The appellant also argued that the mirror order obtained by the respondent was not a valid mirror order.

Respondent’s (Perry Kansagra) Submissions:

• The respondent accepted the suggestion that Smriti should be allowed to freely exchange emails, letters and other correspondence with Aditya.
• The respondent submitted that he has subjected himself to the jurisdiction of the Supreme Court of India by giving an undertaking to the court.
• The respondent contended that the mirror order obtained from the High Court of Kenya was in compliance with the directions of the Supreme Court of India.
• The respondent agreed to furnish school reports and activity reports of Aditya to the appellant.
• The respondent agreed to keep the appellant informed about parent-teacher meetings and other school activities, and that the appellant would be at liberty to visit Aditya’s school.
• The respondent agreed to keep the appellant informed about Aditya’s health and medical issues and share medical reports with her.

The respondent submitted that he had complied with the directions of the Supreme Court and that the mirror order was valid. He also agreed to some of the modifications sought by the appellant, particularly regarding information about the child’s education and health.

Submissions Table

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was whether the directions issued in its judgment dated October 28, 2020, needed modification, considering the submissions made by the appellant. The court also considered the validity of the mirror order obtained by the respondent from the High Court of Kenya.

Treatment of the Issue by the Court

Authorities

Cases:

• Dr. Navtej Singh vs. State of NCT and another [(2018) SCC OnLine Del 7511] – High Court of Delhi: This case was cited to demonstrate what a mirror order should normally contemplate and provide. It was noted that this order was affirmed by the Supreme Court in (2019) 17 SCALE 672.
• In Re Matter of I W P (Infant) [2013] 3KLR – High Court of Kenya at Nairobi: This case was cited to show that the High Court of Kenya has granted mirror orders in matters concerning custody and guardianship of a minor.
• Vivek Singh vs. Romani Singh [(2017) 3 SCC 231] – Supreme Court of India: This case was cited by the appellant to support the request for the child to be produced before the court for evaluation every six months.

Statutes:

• Foreign Judgments (Reciprocal Enforcement) Act, CAP 43 of Kenya: This Act was discussed in relation to the enforcement of foreign judgments in Kenya.
• Sections 4, 22, and 113 of the Children Act of Kenya: These sections were mentioned as they relate to the best interests and welfare of the child.
• Article 53 of the Constitution of Kenya, 2010: This article was cited as it emphasizes the best interests and welfare of the child.
• Judicature Act of Kenya: This Act was referenced as it empowers the High Court of Kenya to exercise jurisdiction in accordance with common law principles and the doctrine of equity.
• Article 2(5) of the Constitution of Kenya, 2010: This article was cited as it recognizes the general rules of international law as part of the laws of Kenya.

Authorities Table

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Dr. Navtej Singh vs. State of NCT and another [(2018) SCC OnLine Del 7511]: Cited to understand the nature of a mirror order.
• In Re Matter of I W P (Infant) [2013] 3KLR: Cited to support the validity of the mirror order obtained from the High Court of Kenya.
• Vivek Singh vs. Romani Singh [(2017) 3 SCC 231]: Cited by the appellant but not followed for the specific relief of regular court evaluations.
• Foreign Judgments (Reciprocal Enforcement) Act, CAP 43 of Kenya: Discussed but not directly applicable due to the nature of the case.
• Sections 4, 22, and 113 of the Children Act of Kenya and Article 53 of the Constitution of Kenya, 2010: Considered to emphasize the child’s best interests.
• Judicature Act of Kenya and Article 2(5) of the Constitution of Kenya, 2010: Considered to support the validity of the mirror order by the High Court of Kenya.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the paramount consideration of the child’s welfare. The Court sought to balance the need for the child to maintain a relationship with his mother while ensuring his educational and overall well-being was not disrupted. The Court emphasized the importance of the child’s stability and the need to avoid frequent travel that could interfere with his schooling and activities. The Court also gave due deference to the High Court of Kenya’s order registering the judgment of the Supreme Court of India.

Fact:Law Ratio

The Court’s reasoning was significantly influenced by the factual circumstances of the child’s life and the need to ensure his overall well-being, with legal considerations also playing a crucial role.

The Court’s reasoning emphasized the child’s best interests, educational stability, and the importance of the mother-child relationship. The Court also considered the need for deference to the High Court of Kenya’s order. The Court quoted from the judgment: “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.” The Court also noted: “Requiring Aditya to travel to India and spend the entirety of his two vacations spreading over a period of three months, was considered to be causing hindrance to his normal educational and other activities.” And further, “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 rejected the appellant’s plea for temporary custody during all vacations, stating that it would disrupt the child’s normal routine. The Court also rejected the plea for the child to be produced before the court every six months, but clarified that an interaction with the child could be arranged when he is in India.

The Court accepted the mirror order obtained from the High Court of Kenya, stating that it was sufficient compliance with its directions. The Court also accepted some of the appellant’s requests regarding information about the child’s education and health.

Key Takeaways

• ✓ Child’s welfare is the paramount consideration in custody matters.
• ✓ Courts will balance the need for a child to maintain a relationship with both parents with the need to ensure the child’s stability and well-being.
• ✓ Mirror orders from foreign courts must be given due deference.
• ✓ Courts will not impose obligations that are deemed unnecessary or disruptive to the child’s life.
• ✓ The Supreme Court can modify orders of lower courts in the exercise of its parens patriae jurisdiction.

Directions

The Supreme Court directed that the appellant shall be allowed one additional trip to Kenya, financed by the respondent, coinciding with the child’s birthday. The Court also directed the respondent to furnish school reports and activity reports of Aditya to the appellant, keep the appellant informed about parent-teacher meetings and other school activities, and inform the appellant if the child’s school is changed. The respondent was also directed to keep the appellant informed about Aditya’s health and medical issues and share medical reports with her. The Court also clarified that an interaction with the child could be arranged when he is in India.

Specific Amendments Analysis

Not Applicable.

Development of Law

The ratio decidendi of this case is that in child custody matters, the welfare of the child is of paramount importance, and courts will balance the need for a child to maintain a relationship with both parents with the need to ensure the child’s stability and well-being. The Supreme Court reiterated its parens patriae jurisdiction to modify orders of lower courts in the best interests of the child. The Court also emphasized the importance of giving due deference to mirror orders from foreign courts. The court reiterated that the previous order superseded the order of the High Court.

Conclusion

The Supreme Court modified its previous order in the child custody case of Smriti Madan Kansagra vs. Perry Kansagra, granting the mother an additional trip to Kenya coinciding with the child’s birthday. The Court upheld the validity of the mirror order obtained by the father from the High Court of Kenya. The Court’s decision was primarily guided by the principle of the child’s welfare and the need to balance the rights of both parents while ensuring the child’s stability and well-being. The Court also clarified that its previous order superseded the order of the High Court.

Category

Category: Family Law, Child Custody, Supreme Court of India, International Child Custody