Supreme Court Recalls Custody Order, Cites Fraud in Child Custody Battle: Smriti Madan Kansagra vs. Perry Kansagra (2021)

Introduction

Date of the Judgment: 7 October 2021
Citation: Not Available
Judges: Uday Umesh Lalit, J., Hemant Gupta, J., Ajay Rastogi, J.

Can a court’s order be nullified if it was obtained through fraud? The Supreme Court of India recently addressed this critical question in a case involving a bitter custody battle. The court’s decision highlights the importance of honesty and transparency in legal proceedings, especially those concerning the welfare of a child. This case examines the consequences of misleading the court to gain custody of a minor.

The Supreme Court, in this judgment, addressed a situation where it found that a father, Perry Kansagra, had obtained custody of his child, Aditya, through fraudulent means. The court, therefore, recalled its previous orders and directed the Central Bureau of Investigation (CBI) to initiate criminal proceedings against the father.

Case Background

The case revolves around a custody dispute between Smriti Madan Kansagra (the mother), an Indian citizen, and Perry Kansagra (the father), a person of Indian origin with dual citizenship of Kenya and the United Kingdom. They married on 29 July 2007 in New Delhi and had a son, Aditya, on 2 December 2009 in New Delhi. The couple initially lived in Nairobi, Kenya, but Smriti returned to India in 2009, and Aditya remained with her in Delhi, except for a brief period in 2012 when they visited Kenya.

On 26 May 2012, Smriti filed a civil suit in the High Court of Delhi seeking to prevent Perry from removing Aditya from her custody. Perry filed a guardianship petition in the District Court, Saket, New Delhi on 6 November 2012, seeking custody of Aditya and permission to take him to Kenya. The High Court initially allowed Perry visitation rights under Smriti’s supervision. Over time, the Family Court modified the visitation schedule, allowing Perry more access to Aditya.

The Family Court granted custody of Aditya to Perry on 12 January 2018, which was upheld by the High Court on 25 February 2020. Smriti challenged this decision in the Supreme Court, which was dismissed on 28 October 2020. The Supreme Court directed Perry to obtain a mirror order from a Kenyan court, reflecting the directions in the Supreme Court’s judgment. Smriti filed a miscellaneous application on 29 July 2021, alleging that Perry was not complying with the visitation rights granted to her.

Timeline

Legal Framework

The judgment primarily revolves around the interpretation and application of the following:

• The Guardianship and Wards Act, 1890: This Act provides the legal framework for matters related to the guardianship of minors. Sections 7, 8, 10, and 11 of the Act, as mentioned in the judgment, deal with the power of the court to appoint a guardian and the rights and duties of the guardian.
• The Foreign Judgments (Reciprocal Enforcement) Act, CAP 43 of the Laws of Kenya: This Act makes provisions for the enforcement of judgments given in countries outside Kenya which accord reciprocal treatment to judgments given in Kenya. The court noted that India is not a reciprocating country under this Act, and that the Act does not apply to proceedings in connection with “the custody or guardianship of children.”
• Article 53 of the Constitution of Kenya 2010: This article deals with the rights of children, including the right to be protected from abuse, neglect, and inhuman treatment, and the principle that the best interests of the child are paramount.

Arguments

Smriti Madan Kansagra’s Submissions:

• Smriti argued that Perry was obstructing her visitation rights and reducing her access to Aditya. She stated that Perry had reduced the weekly Skype calls from one hour to 20 minutes.
• She contended that Perry had not allowed Aditya to visit her during the summer vacation, despite the Supreme Court’s order granting her 50% of the vacation time.
• Smriti pointed out that Perry had not taken any steps to renew Aditya’s Overseas Citizen of India (OCI) card, which was necessary for him to travel to India.
• Smriti argued that Perry had not complied with the Supreme Court’s direction to obtain a valid mirror order from the Kenyan court.
• She highlighted that Perry had filed a petition in the High Court of Kenya challenging the jurisdiction of the Indian Courts, which was a violation of his undertaking to submit to the jurisdiction of the Indian Courts.
• Smriti argued that Perry’s actions were a well-planned conspiracy to obtain custody of Aditya through fraudulent means and then defy the orders of the Supreme Court.

Perry Kansagra’s Submissions:

• Perry argued that the COVID-19 pandemic and the loss of his father made it unsafe for Aditya to travel to India. He stated that there were concerns about a third wave of COVID-19 in India.
• He claimed that the Air-bubble flight between Kenya and India would not allow Aditya to travel since he did not fall under any of the permitted categories.
• Perry submitted that he was not averse to Smriti meeting Aditya in Kenya.
• In his petition before the High Court of Kenya, Perry argued that the orders passed by the Indian Courts were invalid and unenforceable in Kenya. He claimed that the Indian Courts had no jurisdiction over a Kenyan citizen.
• He contended that compelling Aditya to obtain an OCI card and travel to India was a violation of his rights under the Constitution of Kenya.
• Perry argued that there was no valid “Mirror Order” and that the Kenyan Courts were not bound by the orders of the Indian Courts in matters related to the custody of children.
• He submitted that the orders of the Supreme Court of India did not consider the welfare and wishes of the child.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section, but the core issues addressed in the judgment can be summarized as:

1. Whether the custody order obtained by Perry was based on fraudulent representations made to the court.
2. Whether Perry’s actions constituted a violation of the undertakings given to the Indian Courts.
3. Whether the Supreme Court should recall its previous orders and restore the status quo ante.
4. Whether Perry should be held liable for contempt of court.
5. Whether criminal proceedings should be initiated against Perry for his fraudulent conduct.
6. Whether the Indian courts have jurisdiction over a child who is a citizen of Kenya, especially when the child was taken out of India based on fraudulent orders.

Treatment of the Issue by the Court

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

Authorities

The Supreme Court relied on several cases and legal provisions to support its decision. These are categorized by the legal point they address:

Judgment

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

How each authority was viewed by the Court?

The Court used the authorities to establish the principle that fraud vitiates all judicial acts and that a court has the inherent power to recall its own orders obtained by fraud. The cases were used to emphasize that a person who obtains an order through fraudulent means cannot be allowed to benefit from that order. The court also relied on the authorities to state that suppression of material facts amounts to fraud. The court used the statute to show that India is not a reciprocating country and this Act does not apply to proceedings in connection with the custody or guardianship of children and the rights of the child as enumerated in the Constitution of Kenya.

• S.P. Chengalvaraya Naidu v. Jagannath [ (1994) 1 SCC 1]: The Supreme Court emphasized that a judgment obtained by fraud is a nullity.
• Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC 550]: The Supreme Court used this case to assert its inherent power to recall orders obtained by fraud.
• United India Insurance Co. Ltd. v. Rajendra Singh [(2000) 3 SCC 581]: This case was used to highlight the court’s ability to recall orders if convinced that they were obtained through fraud.
• Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319]: The Supreme Court cited this case to define fraudulent misrepresentation.
• Hamza Haji v. State of Kerala [(2006) 7 SCC 416]: This case was used to explain that fraud is an extrinsic act that nullifies judicial proceedings.
• K.D. Sharma v. SAIL [(2008) 12 SCC 481]: The Supreme Court used this case to emphasize that suppressing material facts is a form of fraud.
• Meghmala v. G. Narasimha Reddy [(2010) 8 SCC 383]: The Supreme Court used this case to reiterate that fraud avoids all judicial acts.
• Badami v. Bhali [(2012) 11 SCC 574]: The Supreme Court cited this case to emphasize that a judgment obtained by fraud is a nullity.
• Lazarus Estates Ltd. v. Beasley [(1956) 1 QB 702]: The Supreme Court relied on this case to assert that no judgment can stand if obtained by fraud.
• Section 44 of the Evidence Act: The Supreme Court used this provision to show that a prior adjudication can be challenged if vitiated by fraud.
• The Foreign Judgments (Reciprocal Enforcement) Act, CAP 43 of the Laws of Kenya: The court used this statute to show that India is not a reciprocating country and this Act does not apply to proceedings in connection with the custody or guardianship of children.
• Article 53 of the Constitution of Kenya 2010: The court noted that the orders of the Indian court did not properly consider the rights of the child as enumerated in the Constitution of Kenya.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the finding that Perry had obtained custody of Aditya through fraudulent means. The court emphasized that:

• Perry had misrepresented facts and suppressed material information, including the dismissal of his application for a mirror order in Kenya.
• Perry had violated the solemn undertakings given to the Indian courts and had challenged their jurisdiction.
• The welfare of the child, Aditya, was paramount, and the court could not allow a party to benefit from fraud.
• The court was duty-bound to correct the wrong done to the process of law and to ensure that the orders obtained by fraud were nullified.

Logical Reasoning:

The court also considered the alternative interpretation that Perry was genuinely concerned about the health and safety of Aditya due to the pandemic. However, the court rejected this interpretation because Perry had not disclosed the dismissal of his application for a mirror order and had actively challenged the jurisdiction of the Indian courts. The court found that Perry’s actions were a deliberate attempt to deceive the court and to obtain custody of Aditya through fraudulent means.

The final decision was reached by recalling the previous orders and directing the CBI to initiate criminal proceedings against Perry. The court also directed the Ministry of External Affairs and the Indian Embassy in Kenya to provide assistance to Smriti in securing the custody of Aditya.

The majority opinion was authored by Justice Uday Umesh Lalit, with Justices Hemant Gupta and Ajay Rastogi concurring. There were no dissenting opinions in this judgment.

The court quoted the following from the judgment:

• “It is fundamental that a party approaching the Court must come with clean hands, more so in child custody matters.”
• “Any fraudulent conduct based on which the custody of a minor is obtained under the orders of the Court, would negate and nullify the element of trust reposed by the Court in the concerned person.”
• “The Indian Courts which were the Courts of first contact and had complete jurisdiction over Aditya, must continue to exercise such power and jurisdiction to correct the wrongs which occurred as a result of fraudulent conduct on part of Perry.”

Key Takeaways

• Fraudulent Conduct: The judgment underscores that any order obtained through fraud is void and can be recalled by the court. This applies to all judicial acts, including those related to child custody.
• Clean Hands Doctrine: Parties approaching the court, especially in child custody matters, must come with clean hands and disclose all material facts truthfully.
• Jurisdiction of Courts: The court emphasized that it has the power to correct wrongs done through fraudulent means, even if the child is outside the jurisdiction of the court.
• Contempt of Court: Violation of undertakings given to the court can lead to contempt proceedings.
• Criminal Proceedings: Fraudulent conduct can result in criminal proceedings against the offending party.
• Welfare of the Child: The welfare of the child remains the paramount consideration for the court, and any action that compromises the child’s welfare will not be tolerated.

Potential Future Impact: This judgment will serve as a strong precedent for cases involving fraudulent procurement of court orders, especially in child custody matters. It emphasizes the importance of honesty and transparency in legal proceedings and reinforces the court’s power to correct wrongs done through fraudulent means. It also highlights the courts’ commitment to protecting the welfare of the child.

Directions

The Supreme Court issued the following directions:

• The Judgment dated 28.10.2020 and the Order dated 08.12.2020 passed by this Court are recalled.
• The Guardianship Petition No.53 of 2012 filed by Perry in the District Court, Saket, New Delhi seeking permanent custody of Aditya and the resultant proceedings arising therefrom including MAT APP (F.C.) No.30 of 2018 filed in the High Court, are dismissed.
• The Orders granting custody having been recalled, the custody of Aditya with Perry is declared to be illegal and ab initio void.
• Issue notice to Perry as to why proceedings in contempt jurisdiction be not initiated against him for having violated the solemn undertakings given to this Court, returnable on 16th November, 2021.
• The Central Bureau of Investigation, New Delhi through its Director is directed to initiate appropriate proceedings by registering criminal proceedings against Perry and to secure and entrust the custody of Aditya to Smriti.
• The Secretary, Ministry of External Affairs, Government of India, New Delhi and the Indian Embassy in Kenya are directed to ensure that all possible assistance and logistical support is extended to Smriti in securing the custody of Aditya.
• From and out of the amount of Rs.1 crore deposited by Perry in this Court, at this stage, an amount of Rs.25 lakhs be handed over to Smriti towards legal expense incurred or required to be incurred hereafter. Rest of the money shall continue to be kept in deposit with the Registry till further orders.

Development of Law

This case reinforces the principle that fraud vitiates all judicial acts. The ratio decidendi of this case is that any order obtained by playing fraud on the court is a nullity and non est in the eye of the law. Such a judgment, whether by the first court or the highest court, has to be treated as a nullity by every court, whether superior or inferior. This case does not change the previous positions of law but rather reinforces the existing principles.

Conclusion

In conclusion, the Supreme Court’s decision in Smriti Madan Kansagra vs. Perry Kansagra is a significant ruling that underscores the importance of honesty and transparency in legal proceedings, particularly in child custody matters. The court’s decision to recall its previous orders and initiate criminal proceedings against Perry Kansagra sends a strong message that fraud will not be tolerated and that the welfare of the child is paramount. This case serves as a crucial reminder that the courts have the power to correct wrongs done through fraudulent means and that the integrity of the judicial process must be upheld at all costs.

Category

Parent Category: Family LawSub Category: Child Custody, Fraud