Interest of Child

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3559 OF 2020

(Arising out of SLP (C) No. 12910/ 2020

(Diary No.8161 of 2020)

Smriti Madan Kansagra … Appellant Versus

Perry Kansagra … Respondent

J U D G M E N T

INDU MALHOTRA, J.

Leave granted.

1. The present Appeal arises out of a Guardianship Petition filed by the Respondentfather under Section 7, 8, 10 and 11 of the Guardian and Wards Act, 1890 for the custody of the minor childAditya Vikram Kansagra, before the District Courts, Saket,

New Delhi.

2. The Appellantmother Smriti is an Indian citizen, who was a practicing lawyer prior to her marriage to the Respondent Perry, in New Delhi.

The Respondentfather Perry is of Indian origin, and Gujrati descent, whose family shifted to Kenya and settled there since the last three generations, when his grandfather migrated in 1935. Perry and his family have been settled in Kenya, where they have established a vast business establishment in Kenya

and U.K., and Perry holds a dual citizenship of Kenya and the U.K.

3. Prior to marriage, Smriti and her mother visited Kenya for a week to see the place, and satisfy themselves of the family background, social and financial status, and lifestyle of Perry

and his family.

4. Smriti got married to Perry on 29.07.2007 at New Delhi. After marriage, Smriti shifted to Nairobi, Kenya and settled in

her matrimonial home.

5. In 2009, Smriti returned to India for childbirth. The son Aditya Vikram Kansagra was born on 02.12.2009 at New Delhi. Even though the child was an Indian citizen by birth, a considered decision was evidently taken by his parents, that he would hold a dual citizenship of Kenya and UK.

On 01.07.2010 about six months after his birth, Aditya went to Kenya with his parents. Smriti lived with Perry in Kenya for 5 years after her marriage, and occasionally visited Delhi since her mother lives in India.

In February 2012, the entire family had gone to see a school in Kenya, where Aditya would be admitted for his education.

6. On 10.03.2012, Aditya came with both his parents to New Delhi on a return ticket, and was scheduled to return to Kenya on 06.06.2012.

7. Perry returned to India on 22.04.2012 to spend time with his family i.e. Smriti and Aditya, and stayed with them at Smriti’s flat till 26.04.2012. On 26.04.2012, he returned to Kenya.

8. On 26.05.2012, Smriti filed a Suit for Permanent Injunction bearing C.S. (O.S.) 1604 of 2012 against Perry and

his parents, before the Delhi High Court.

This was the starting point of the commencement of litigation between the parties for the custody of the minor child.

The proceedings which ensued are briefly outlined hereinbelow. In para 11 of the Plaint it is stated that :

“11. It bears mention that the Plaintiff No.2 and the Defendant No.3 were extremely happy with each other after their marriage. They lived in a state of conjugal happiness, spend time together, derive joy from each other’s company and would travel together and the Plaintiff No.2 would participate, assist and guide the Defendant No.3 in his business. They had a happy time till the time the Plaintiff No.1 was born on 02.12.2009. The defendants were overjoyed of the birth of the male heir and there were lots and lots of celebrations in India as well as in Kenya.”

In the Suit, the following reliefs were prayed for :

“(a) Pass a decree for permanent injunction restraining the defendants, their agents, representatives, servants and/or attorneys in perpetuity from in any manner removing the child either from the lawful custody of the Plaintiff No. 2 or removing the child from Delhi; the jurisdiction of this Hon’ble Court or accessing the child in his School “Toddlers Train” at Sunder Nagar, New Delhi.

(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.”

8.1. A single Judge of the Delhi High Court vide an exparte Order dated 28.05.2012 observed that since the minor child is barely two years old, he would require to remain in the custody and care of his mother and ought not to be disturbed. The Court

restrained the father from removing the minor child from the custody of his mother.

8.2. Perry filed I.A. No.12429/2012 in the pending Suit, seeking directions to meet Aditya at some common place, and for overnight access.

Smriti submitted that she was not averse to the meeting of the child by the defendants, but the meeting may be allowed only under her supervision. The meeting could take place at ‘Hang Out’ in Select City Walk, which could take place for 23 hours on Saturday and Sunday, but not for overnight access.

The Delhi High Court vide Order dated 13.07.2012 permitted Perry to meet the child on 3 days at “Hangout” in Select City Walk from 5 p.m. to 7 p.m., under the supervision of Smriti, who would maintain a comfortable distance during the

said meeting.

8.3. Similar Orders were passed for the following months from August 2012 to January 2013, since Perry and his parents were

travelling from Kenya to India every month to visit Aditya. 8.4. By a subsequent Order dated 05.11.2012 passed in I.A.

14034/2012 filed by Perry, the High Court granted Perry and his parents access through Skype for a maximum period of 15

minutes once a week in the presence of Smriti.

8.5. By a further Order dated 10.04.2013, the High Court ordered that Perry and his parents would be permitted to visit Aditya, on Friday, Saturday and Sunday, in the second week of

every month, for 2 hours each day in the presence of Smriti. This schedule continued every month till March 2016. 8.6. In the meanwhile, on 06.11.2012, Perry filed a substantive

Guardianship Petition No. 53 of 2012 before the District Courts, Saket, New Delhi wherein it was prayed:

“a. Declare the petitioner who is natural father of the minor child master Aditya Vikram Kansagra as the legal guardian under Section 7 of the Guardianship and Wards Act, 1890;

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 and 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…”

8.7. During the pendency of proceedings, Smriti admitted

Aditya to Delhi Public School, Mathura Road, New Delhi. Perry moved an application MAT Appeal (FC) No.61/2014

u/S. 151, CPC before the Family Court seeking appropriate directions for the admission of Aditya to British School, which would be preferable since it follows the IB curriculum, which is recognized both in India and overseas. Since the child was holding a dual citizenship of Kenya and U.K., it would be preferable for the child to follow an international curriculum. It was further submitted that Smriti had not consulted him on the admission of the minor child, before admitting him to Delhi

Public School.

The application was rejected by the Family Court vide Order dated 17.10.2013, since it would not be appropriate at this

stage to uproot the child in the middle of the session.

8.8. Perry filed I.A. No.3924/2014 in the pending Suit before the Delhi High Court, seeking unsupervised visitation and sharing of vacations with Aditya during the 3 days when he would visit India every month.

Smriti in her reply to the said I.A. submitted that the Kenyan Passport of Aditya which was in her custody had got lost which she discovered on 28.05.2013. Smriti stated that she had filed a NonCognizable Report on 03.07.2014 for loss of the passport. In Para 11 of the said reply, she alleged that Perry in April 2012 had in all probability clandestinely removed the Kenyan passport when he stayed with her. This would be a relevant factor before an Order of unsupervised visitation or shared vacations could be passed, since it would aid Perry to surreptitiously remove the child from the jurisdiction of the

Court by a dishonest use of the Kenyan passport of the child. 8.9. On 31.08.2015, both the parties submitted before the

Delhi High Court that the Suit may be disposed of, leaving the parties to pursue their remedies in the pending Guardianship

Proceedings before the Family Court.

The Counsel for the defendant made a statement before the Court that the custody of the child would not be removed by any of the defendants without due process of law.

The High Court directed that the British passport of Aditya which had been deposited with the Family Court, be returned to the defendants for renewal, after which, it would be deposited with the Family Court. It was left open for the Family Court to consider the request of the parties for release of the passport in accordance with law.

The Suit was accordingly disposed of vide Order dated 31.08.2015 in the aforesaid terms.

8.10. On 02.09.2015, Perry filed an I.A. before the Family Court, wherein he made a prayer for unsupervised visitation and overnight custody of the child for 2 nights i.e. on Friday and Saturday on their monthly visits to India.

8.11. On 27.01.2016, the Principal Judge of the Family Court

had a detailed interaction with Aditya in Chambers.

The Family Court took note that Perry and his parents had been meeting the child regularly every month, and found the child to be attached to his father and paternal grandparents. It was observed that it would be in the interest of the child if he could spend quality time and have better interaction with the

father and paternal grandparents for his holistic growth. The Family Court vide Order dated 09.02.2016 allowed

Perry to meet the child for 2 hours on Friday, and from 10.30 am to 5 pm on Saturday and Sunday, in the second week of every month, in the presence of the Counsellor at a mutually agreed place. The Court directed Perry and his parents to deposit their passports with the Counsellor, before each

visitation.

Perry offered to provide a sum of Rs. 1 lac per month for the maintenance of Aditya. Perry made a statement before the Court that he would not take the child out of the jurisdiction of this Court, and offered to deposit his passport alongwith that of his parents, so that he could avail of overnight custody of the child.As undertaken by Perry, the Court in the Order dated 27.01.2016 recorded that he would pay a sum of Rs. 1 lac

towards the maintenance of the child.

8.12. The Family Court by a subsequent Order dated 09.03.2016 partially modified the visitation schedule recorded in the Order dated 09.02.2016 by consent of parties, and directed that Perry would meet the child only on two days i.e. Saturday and Sunday, with an increase in time by 1 hour from 10.30 am to 6 pm, with

no visitation on Friday.

8.13. On 04.05.2016, when Perry was visiting India, he learnt that the child was unwell, and moved an application to meet the

child on the same day. The Family Court directed that Perry would be allowed to meet the child on the same day from 5 p.m.

to 6 p.m. in the presence of the Counsellor.

8.14. Smriti challenged the Order dated 04.05.2016 before the

Delhi High Court.

The division bench vide Order dated 06.05.2016 directed that a personal interaction with Aditya would be necessary to enable the Court to decide the best interest of the child. However, the visitation Orders passed by the Family Court would continue

to operate in the meanwhile.

The Court directed Smriti to apply for a Kenyan passport of the child within 10 days, and furnish a copy of the application to Perry for completing the formalities. The passport as and when delivered by the Kenyan authorities, would be handed over by Smriti to the Family Court in the Guardianship Petition, and

kept in a sealed cover for safety.

The High Court appointed Ms. Sadhna Ramachandran as the Mediator to enable the parties to arrive at a negotiated settlement of all their disputes. It was further recorded that it shall be open for the Mediator to join any other person or relative of the parties, as may be considered necessary for a

holistic mediation.

8.15. Pursuant to the Order of the High Court, the Mediator requested Ms. Swati Shah, Child Counsellor to join in the

mediation.

8.16. On 11.05.2016, the High Court had a personal interaction with Aditya. It was noted that the child was comfortable in his interaction with his father and grandfather, and expressed happiness on their visitations, and unreservedly stated that he looked forward to the same. It was apparent that the child was wellbonded with his paternal family. At the same time, it was observed that the child was deeply attached to his mother and

nani. It was opined that his bearing and personality revealed fine upbringing by his mother and maternal grandmother. For his holistic development, the child required nurturing from both his parents, as well as love of grandparents on both sides. The Court noted that the British passport of the child had been deposited

by Perry with the Family Court.

The Court directed that visitation would be maintained as

per the Order 09.03.2016 passed by the Family Court. It was agreed by the parties that given the ensuing

summer vacations, Perry and his parents could be given longer

visitation in the first week of June 2016.

8.17. On 11.08.2016, the report of the Child Counsellor was submitted before the High Court, which was taken on record, and a copy whereof was provided to both the parties. Smriti raised an objection on the admissibility of the reports submitted by the Mediator and Counsellor, contending that the Reports of the Mediator and Counsellor could not be relied upon in view of the

principle of confidentiality.

8.18. The division bench vide order dated 17.02.2017 held that where the subject of mediation pertains to a parentchild issue, the report of a Mediator, or Child Counsellor would not fall within the bar of confidentiality. Such reports were a neutral evaluation of expert opinion, and guide the Court as to what orders may be passed in the best interest of the child. These reports were not

confidential communications of the parties.

It was directed that the Family Court would consider granting overnight interim custody to Perry on his trips to India, by imposing such terms and conditions which would ensure that the child is not removed from the territory of India. The proceedings in the Appeal before the High Court being MAT. App

(F.C.) 67 of 2016 were closed since no further orders were

required to be passed in the Appeal.

8.19. Smriti filed C.M. Appl. 42790/2017 for review of the judgment dated 17.02.2017 passed by the division bench on the issue whether the Counsellor’s report could be used by either of the parties during trial. The matter came up for consideration before another division bench of the High Court, which allowed the review petition. The division bench vide Order dated 11.12.2017 held that the mediation report should contain nothing except the report of failure. The report of the Mediator, or the Counsellor, should not be treated as part of the record, and must be disregarded by the Family Court when it proceeds to

decide on the merits of the case.

8.20. Aggrieved by the Order dated 11.12.2017, passed in the review application, Perry filed SLP (C) No.9267/2018. This Court vide a detailed judgment dated 15.02.2019 allowed the Appeal, and set aside the Order passed in the review petition, and restored the Order dated 17.02.2017 which had been passed by the earlier division bench of the High Court. It was held that the Court while exercising parens patriae jurisdiction, is required to decide upon what would be in the best interest of the child. In order to reach the correct conclusion, the Court may interview the child, or may depend on the analysis of an expert who would be able to spend more time with the child, and gauge the upbringing, personality, desires or mental frame of the child, and render assistance to the Court. It is for this reason that confidentiality is departed from in child custody matters under subrule (viii) of Rule 8 of the Family Courts (Procedure) Rules, 1992. It was held that a child may respond naturally and spontaneously in the interactions with the Counsellor who is

professionally trained to make the child feel comfortable. A record of such interactions may afford valuable inputs to the Court while exercising its parens patriae jurisdiction. If during such interaction, aspects concerning the welfare of the child are noticed, there is no reason why the Court should be deprived of

access to such reports, for deciding the best interest of the child. The normal principle of confidentiality would therefore not

apply in matters concerning custody or guardianship, and the Court must be provided with all material touching upon relevant

issues to render complete justice between the parties. 8.21. The Family Court framed two issues for final determination

(i) whether the Guardianship Petition was maintainable, since it was contended by Smriti that Perry Kansagra was a foreigner, and could not invoke the jurisdiction of the Guardians and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956; (ii) whether the father was entitled to be declared the

guardian of the minor child, and granted custody.

(a) With respect to the first issue of maintainability, the Family Court held that this objection had been raised only during arguments. Perry was therefore denied the opportunity to rebut these objections in his pleadings. Since this issue was not purely legal, and was a mixed question of fact and law, it could not be raised at this stage. Furthermore, since it was not disputed that Perry was a Hindu by religion, who was living outside the territories of India, he would also be governed by the Hindu Minority and Guardianship Act, as provided by Section of the said Act. The Court further held that in a case of custody the domicile of the child would be the determinative factor, and not the domicile of the Petitioner. Accordingly, the Guardianship Petition was held to be maintainable.

(b) With respect to the second issue, the Court held that Perry being the biological father of Aditya was a natural guardian as per Section 6(a) of the Hindu Minority and Guardianship Act. Despite the distance, the father had been visiting the child every month, and paying a substantial amount towards his maintenance.

While examining the issue relating to the welfare of the child, the Court was of the opinion that for allround best development and growth of the child, the love and affection, and care by both parents was necessary. A suggestion was made to work out a shared parenting schedule. However, Smriti declined to hold any talks to work out a shared parenting schedule.

On the undisputed facts, the Family Court was of the view that given the future prospects of the child, the same would be best taken care of by the father. Aditya was the heir apparent of the vast businesses set up by Perry and his family, and to deprive him of his legitimate right to inherit the aforesaid business, would definitely not be in his best interest. The grooming of the child under the care of his father and grandfather would be in his best interest. Business interest and the knack to deal with people could not be learnt in any business school. The local language in Kenya i.e. Kiswahili could not be learnt overnight. The child can best pick up the local language by being brought up in the atmosphere where the language is spoken and widely used.

The Family Court also placed reliance on the observations of the High Court with respect to the personal interaction with the child, recorded in the Order dated 11.05.2016, which

revealed the positive observations made about the comfort level between the child and his father and paternal grandparents.

That even though, the mother had sought to restrain the father from meeting the child without her consent, which was evident from Prayer (c) of her Suit filed before the Delhi High Court, the father was able to obtain visitation pursuant to Orders passed by the High Court from time to time. The attempt of the wife to alienate the child from the father was evident from the Aadhaar Card of the child, his bank opening account form, and his school admission form, wherein the name of the father was not even mentioned. The admission to Delhi Public School, Mathura Road was obtained in the ‘single parent category’. The conduct of the mother was held not to be in the best interest of the child.

On a conspectus on the fact situation, the Family Court took the view that the father, who is the natural guardian of the child, was a more suitable guardian for the child. The future of the child was most secure with the father. The mother had unauthorizedly retained the custody of the child for a period of almost 6 years.

Smriti being a parent, however could not be deprived of her right to maintain her contact and relationship with the child. It was directed that during the summer and winter vacations in school, the child would remain in the temporary custody of his mother.

To facilitate the transfer of permanent custody of Aditya to Perry, it was directed that during school holidays longer than 5 days, Perry would be entitled to take the child to U.K. or Kenya, so that the minor child gets familiarised with the

atmosphere to which he would be eventually transferred. All visitations henceforth would be unsupervised with overnight stay.

Accordingly, the Family Court vide its final judgment and order dated 12.01.2018 allowed the Guardianship Petition filed by Perry Kansagra, and granted permanent custody to him at the end of the academic session 201718.

8.22. Aggrieved by the judgment passed by the Family Court, Smriti filed Mat. App. (F.C.) 30/2018 and CM App. 49507/2018 before the Delhi High Court.

The High Court vide Order dated 13.04.2018 directed that, during all visitations, the passports of Perry and his parents would be deposited with the Court, and released after the visitation was over. It was further ordered that Perry would have overnight visitation of Aditya from 10:30 am on the second

Saturday of every month till 6 pm on the following Sunday. 8.23. The Delhi High Court vide the impugned judgment and

order dated 25.2.2020, dismissed the appeal filed by Smriti. The preliminary objection raised by Smriti that the Guardianship Petition filed by Perry was not maintainable, was rejected inter alia on the ground that Section 9 of the Guardians and Wards Act provides territorial jurisdiction to the Court, if the application is made before the District Court where the minor ordinarily resides. By virtue of Explanation (g) to Section 7(1) of the Family Courts Act, 1984 r.w. Section 7(1)(b), the Family Court established under the said Act is deemed to be a District Court for proceedings with respect to the guardianship of the custody of a minor. Reliance was also placed on Section 1 of the Hindu Minority and Guardianship Act, 1956 which provides that this

Act extends to the whole of India, and also to Hindus domiciled

outside India.

The High Court rejected the issue raised by the Appellant that the Respondent was racist and considered persons of African descent to be beneath him. This allegation was found to be unfounded, since the Respondent and his family had a vast business interest in Kenya, where he had been residing ever since his birth. If the Respondent had such an attitude, it would have been impossible for him to run such a vast business

enterprise in that country.

The issue regarding Perry being an alcoholic, was held to be unsupported by any evidence. This allegation was sought to be corroborated by Smriti through the testimony of RW2. The Family Court had discredited the evidence of this witness regarding the alleged incidents mentioned by her, since the same were not corroborated by her own evidence, despite being present at that event. The evidence of RW2 was also discarded on the ground that he was an interested witness, who was close to the Counsel for the Appellant. The High Court affirmed these findings, and disbelieved the testimony of RW2, being an interested witness, and found the allegations to be

uncorroborated.

With respect to the allegation of Smriti, that Perry was allegedly in an adulterous relationship with a woman named Sonia from Mozambique, which she had discovered from certain messages on his Blackberry, could not be relied on as the same

was not free from doubt, and could not be proved. With respect to the allegation that a criminal case had

been registered against Perry on account of a dam burst in Solai farms owned by Perry and his family, which led to the death of 48 persons, the Court held that the mere registration of a

criminal case in Kenya, could not be read to mean that Perry was guilty of the offence of manslaughter. There was nothing brought on record to even remotely suggest that the incident had created a hostile environment in Kenya against Perry. The other contention that if Perry would remain busy with the trial, he would not be able to look after the child, was also rejected as

being devoid of any merit.

The High Court found that even though the child was born in India, a conscious decision had been taken by both Smriti and Perry to obtain dual citizenship of Kenya and United Kingdom for Aditya, which was indicative of the intention that the child would not be brought up in India. Furthermore, Smriti could not take advantage of the fact that the child had remained in India throughout since 10.03.2012. This had occurred on account of the Suit filed by Smriti, wherein she had obtained an injunction from the High Court in the Suit, and deprived Perry of custody of the child. The child had stayed in India since 2012 only on account of the time taken by the litigation between the parties. Despite the same, Perry had been visiting the child every month, and had made repeated attempts for extending his

visitation rights.

The High Court held that Smriti had tried to alienate the child from the father, since she had sought to restrain Perry and his parents from even meeting the child without her consent, or in her absence. The Court took note of the fact that she had withheld the name of the father in the Aadhaar card, the school admission form, wherein the name of the respondent had been

struck off and “single parent” had been written.

The Court took note of the fact that Perry had been visiting India every month since 2012 to spend time with Aditya, which

showed his genuine love and affection for his child. His

dedication despite all odds kept the bond alive.

The High Court vide judgment and order dated 25.02.2020 dismissed the Appeal, and held that the father was in a better position to take care of the child, and it would be in the best interest of the child, if the custody was granted to the father.

8.24. By a separate Order dated 25.02.2020, the High Court recorded that Perry was willing to file an undertaking of his mother who holds an Indian passport, before the Court, to ensure compliance with the Order of the Family Court granting visitation rights to Smriti. Perry would file an undertaking before the Indian embassy in Kenya, in token of his acceptance of the Order, and that he would submit to the jurisdiction of the Court and the consequences which may follow, in case the Order is not faithfully complied with.

The High Court passed the following additional directions: (i) Perry shall apply for a Kenyan passport for the child, if not already done, and Smriti would cooperate in filing the application;

(ii) Smriti shall be entitled to talk to the child over audio calls/ video calls for at least 10 minutes everyday at a mutually agreed time which is least disruptive to the schooling and

other activities of the child;

(iii) Smriti shall be entitled to freely exchange emails, letters and other correspondences with the child without and

hindrance by Perry or his family;

(iv) In addition to the grant of temporary custody of the child to Smriti during summer and winter vacations on the dates to be mutually agreed upon, Smriti may visit the child at Nairobi, Kenya. However, she shall not be entitled

to take the child out of Nairobi, Kenya. Perry shall bear the cost of her return airticket for travel from India once a

year and accommodation for seven days;

(v) Smriti shall also file an undertaking before the Court once the order has attained finality that the order of the Family Court and the directions given by this Court shall be complied with. The undertaking shall state that the period of visitation as stipulated would be strictly adhered to, and she would return the child to the respondent at the stipulated time. Further, she would not abuse her visitation and contact rights to brainwash the child with negative comments about the respondent, his family or Kenya.

8.25. In compliance with the Order dated 25.02.2020, Perry filed an Undertaking dated 02.03.2020 before the High Court, wherein it was stated that he would honour and comply with the visitation rights granted to Smriti in the judgment dated 12.01.2018 passed by the Family Court, and affirmed by the

High Court vide judgment dated 25.02.2020.

8.26. Aggrieved by the judgment passed by the High Court, Smriti filed the present Special Leave Petition before this Court. This Court vide Order dated 04.03.2020 requested both the parties and Aditya to remain present in Chambers on 16.03.2020. In the meanwhile, it was directed that the extent and

nature of visitation granted by the High Court would continue. 8.27. By a further Order dated 12.03.2020, an interim direction

was passed whereby Perry would continue to comply with the directions of the High Court in the Order dated 13.04.2018, whereby Perry and his parents would deposit the passports before the registry of the High Court prior to each visitation.

8.28. On 17.03.2020, Smriti, Perry and Aditya appeared in Chambers before this Court, when we had a personal interaction with both Perry and Smriti individually, and thereafter we spoke to Aditya in the absence of his parents, to gauge his inclinations, expectations, preferences and aspirations. We found Aditya to be selfconfident and articulate for his age, who was comfortable and at ease in interacting with us. He had great clarity about his interest to pursue his education overseas, and was interested to travel to the U.K. and other places. He revealed deep love and affection for his mother and naani. At the same time, we observed that he had a strong bond and attachment to his father and paternal grandparents.

9. Submissions of Smriti

Smriti has objected to the custody of Aditya being handed over to Perry at this juncture till he attains majority, for various reasons, which are briefly mentioned hereinbelow :

9.1. Smriti submitted that she had sacrificed her career in the legal profession to bestow her undivided attention to look after Aditya. She had singlehandedly got Aditya admitted to a premier school in Delhi. Aditya while he was under her care, had excelled in his studies, and had ranked amongst the top five in his class. Apart from academics, it was submitted that he was the captain of his cricket team, and actively participated in

dramatics.

9.2. Smriti submitted that she had provided Aditya with a holistic upbringing, by encouraging him to meet his father and paternal grandparents, and would invite Perry and his parents for Aditya’s birthdays, and ensure that Aditya would call Perry on his birthday. In school projects pertaining to family members,

Smriti would ask Aditya to put up pictures of Perry and his

paternal grandparents.

9.3. Smriti has alleged that Perry was a racist and an alcoholic who would turn violent, and misbehave socially after drinking,

and would not be a fit and suitable guardian for Aditya. 9.4. Smriti has alleged marital infidelity against Perry, and

submitted that he was in an adulterous liaison. It was submitted that he had got into an affair with a woman in Mozambique called Sonia, which came to her knowledge in April 2012, when Perry was on a visit to New Delhi. She stumbled upon certain loving and explicit messages exchanged on his Blackberry

between Perry and Sonia.

9.5. It was further submitted that the Solai Dam burst tragedy which took place in May 2018 on the Solai farms owned by Perry, led to the death of 48 persons, and resulted in widespread hostility and anger against Perry and his family. Perry was facing trial on the charge of manslaughter before the Kenyan criminal courts. It would therefore not be in the interest of the child, if Perry who is facing a criminal trial in these cases, is made the guardian of Aditya.

10. Submissions of Perry

10.1. It was submitted on behalf of Perry that Smriti had indulged in parental alienation. The first step was when she came back to India in March 2012, she filed a Suit before the Delhi High Court, wherein she had inter alia prayed for a permanent injunction restraining Perry and his parents from even meeting the child in perpetuity, without her consent /

presence.

10.2. During the past 8 years, Perry was provided with very limited access and visitation rights with Aditya, even though he

and his parents were travelling for 36 hours every month to meet

him.

10.3. On the issue of parental alienation, Perry contended that Smriti had filed a Suit for injunction before the Delhi High Court wherein it was inter alia prayed for a decree of permanent injunction restraining Perry and his parents in perpetuity from

meeting Aditya without the consent/presence of Smriti. It was only after Perry moved an I.A. for Directions before

the High Court to meet Aditya at a neutral venue, that he was granted supervised access in the presence of Smriti. Throughout the proceedings, Perry moved several I.A.s from time to time praying for increased visitation rights and overnight access.

The applications moved by Perry for increased visitation were opposed at every stage by Smriti, and she insisted on supervised and limited access, even though there was no chance of him removing the child from the jurisdiction of the Court, since the passports of his parents and himself, were deposited with the Court before every visitation. Till 2016, the visitation rights were under the supervision of Smriti, and thereafter vide Order dated 09.02.2016, under the supervision of the Child Counsellor.

The maximum visitation granted to Perry was two days every month, which was increased to overnight access for one day vide Order dated 13.04.2018 passed by the High Court.

10.4. It was submitted on behalf of Perry that Smriti had, in all the official documents of the child, represented Aditya to be the child of a “single parent” in the Admission Form to School, and the name of the father was scored out; even in the Aadhar Card, the name of the father was not mentioned; as also in the bank account opening form.

Perry submitted that Smriti withheld information regarding the admission of the child to regular school. She firmly opposed the suggestion made by Perry to admit Aditya in an international school, whether British School or Pathways School, which would

be more beneficial to him, being a foreign national.

On 16.12.2013, Perry sent an email to Smriti that it would be in the best interest of the child to admit him in Pathways School, Noida (an international school which follows the IB

curriculum).

Smriti replied to this email on 30.12.2013, stating that :

“The aspect of education forms part of the larger

scheme of comprehensive settlement as mutually agreed. At the cost of repetition, I would like to reiterate that the primary aspects in this regard are suitable accommodation and creation of a fund for Aditya’s ongoing education and maintenance. Therefore, simultaneously kindly finalise all these aspects, including alimony, in entirety.…”

(emphasis supplied)

It was submitted on behalf of Perry that her response showed that she was using the custody of Aditya to work out a more beneficial settlement for herself, rather than consider the best interest of the child.

10.5. Smriti was unwilling to share Aditya’s progress reports in school. The progress reports were made available only after a legal notice was issued to Smriti, followed by an application being filed before the Family Court. Smriti gave an undertaking to the Family Court on 19.12.2016, that she would mail the academic record and school reports of Aditya to Perry, as also the school calendar for each year.

10.6. It was further submitted that academics was not high on priority for Smriti, which would be evident from Aditya’s school records for the years 201516 and 201617. The academic

session for 201516 revealed poor attendance of 111 days out of 175 working days, which would show that the child remained absent for 36.5 % of that academic session. In 201617, the attendance was 138 out of 178 working days, which was absence of 22.5% of the academic year. Such absence from school was reflective of the indifference of the mother to the education of the child.

11. Discussion and Analysis

We have carefully considered and deliberated upon the oral and written submissions made by Mr. Shyam Divan, Senior Advocate, instructed by Mr. P. Banerjee and Ms. Nidhi Mohan Parashar on behalf of the Appellant; and the submissions made by Mr. Anunaya Mehta, Advocate instructed by Ms. Inderjeet Saroop, Advocate representing the Respondent.

The issue which has arisen for our consideration is as to what should be the dispensation to be followed with respect to the custody of the minor childAditya who is now 11 years of age, till he attains the age of majority in 7 years’ time.

11.1. It is a wellsettled principle of law that the courts while exercising parens patriae jurisdiction would be guided by the sole and paramount consideration of what would best subserve the interest and welfare of the child, to which all other considerations must yield. The welfare and benefit of the minor

child would remain the dominant consideration throughout. The courts must not allow the determination to be clouded

by the inter se disputes between the parties, and the allegations and counterallegations made against each other with respect to

their matrimonial life. In Rosy Jacob v. Jacob A Chakarmakkal¹

this Court held that :

“15…The children are not mere chattels: nor are they

mere playthings for their parents. Absolute right of parents

over the destinies and the lives of their children has, in the

modern changed social conditions, yielded to the

considerations of their welfare as human beings so that they

may grow up in a normal balanced manner to be useful

members of the society.”

(emphasis supplied)

A three Judge bench of this Court in V.Ravichandran (2) v Union of India & Ors.² opined :

“27…it was also held that whenever a question arises

before a Court pertaining to the custody of a minor child, the

matter is to be decided not on considerations of the legal

rights of the parties, but on the sole and predominant

criterion of what would serve the best interest of the minor.”

(emphasis supplied)

11.2. Section 13 of the Hindu Minority and Guardianship Act, 1956 provides that the welfare of the minor must be of paramount consideration while deciding custody disputes.

Section 13 provides as under :

“13. Welfare of minor to be paramount consideration

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.”

This Court in Gaurav Nagpal v. Sumedha Nagpal³ held that the term “welfare” used in Section 13 must be construed in a

1 (1973) 1 SCC 840.

2 (2010) 1 SCC 174.

3 (2009) 1 SCC 42.

manner to give it the widest interpretation. The moral and ethical welfare of the child must weigh with the court, as much as the physical wellbeing. This was reiterated in Vivek Singh v. Romani Singh⁴, wherein it was opined that the “welfare” of the child comprehends an environment which would be most conducive for the optimal growth and development of the

personality of the child.

11.3. To decide the issue of the best interest of the child, the Court would take into consideration various factors, such as the age of the child; nationality of the child; whether the child is of an intelligible age and capable of making an intelligent preference; the environment and living conditions available for the holistic growth and development of the child; financial resources of either of the parents which would also be a relevant criterion, although not the sole determinative factor; and future

prospects of the child.

11.4. This Court in Nil Ratan Kundu v. Abhijit Kundu⁵set out the principles governing the custody of minor children in paragraph 52 as follows:

“ Principles governing custody of minor children

52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary

4 (2017) 3 SCC 231.

5 (2008) 9 SCC 413.

comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or

judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.”

11.5. Section 17 of the Guardian and Wards Act, 1890 provides :

“17. Matters to be considered by the Court in appointing guardian

(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(4) deleted

(5) The Court shall not appoint or declare any person to be a guardian against his will.”

(emphasis

supplied)

11.6. In the present case, the issue of custody of Aditya has to be based on an overall consideration of the holistic growth of the child, which has to be determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is

likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life.

12. Personal Interaction of the Courts with the minor : Section 17(3) of the Guardians and Wards Act, 1980 provides that if the minor is old enough to form an intelligent preference, such a choice would be of crucial importance in assisting the Court to arrive at a judicious decision on the issue of custody of the minor child.

In the present case, Aditya is by now almost 11 years of age. It has been observed by the Family Court, the Child Counsellor, and the High Court in their personal interactions with the child at different stages of the proceedings, that he was a bright and articulate child, who was capable of unequivocally expressing his preferences and aspirations.

We will now briefly touch upon the interactions of the Courts with Aditya, and the findings in this regard :

(a) The Principal Judge, Family Court had a personal interaction with Aditya on 27.01.2016 when he was 6 years old. The Family Court in the Order dated 09.02.2016 notes that the child was attached to his father and grandparents, and observed that it would be in the interest and welfare of the child to have better interaction with his father for strengthening the bond, and for his holistic growth. The Court took the view that longer meeting hours would enable the father to spend quality time with the child, and that it would be in the interest of Aditya to have exclusive time with his father, in the absence of the mother.

(b) During the mediation proceedings, the Child Counsellor interacted with the child on 08.07.2016 and 11.07.2016, based on which the Report dated 21.07.2016 was submitted

to the High Court.

The detailed report of the Counsellor gives a clear and valuable insight of the mental disposition and inclination of the child, which are most relevant for deciding the issue of custody and guardianship of the child.

The relevant extract from the Report reads as under:

“…Aditya stays with his mother in Delhi while his father travels from Kenya once every month to visit him. While speaking of his parents, Aditya showed lot of closeness and affinity for his father which was surprising for a child who lives with his mother and spends very little time with the father only during visitation. Father seems to be the person he idolises. He also talked affectionately of his Dada in particular and Dadi (paternal grandparents). He talked about the house in Kenya which he might be knowing only through pictures seen during visitation as he was very young when Smriti returned to India alongwith him.

Various questions were asked to know more about Aditya’s leanings towards his father and whether his expressions of love and affinity were 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.

Aditya seems comfortable with his mother and Nani (maternal grandmother) as well. In my second session with Aditya, he talked about his recent vacation in Kashmir alongwith his mother and how he went fishing there. When asked if he goes to Kenya and doesn’t like it there or misses his mother what could be done, he answered that he would come back to Delhi. However, he is not uncomfortable at the idea of making a trip to Kenya. When asked about acquiring a toy game or a skill (playing darts) his talk was all father centric. According to Smriti, his scholastic progress is

satisfactory at the moment. However, he may face difficulties in higher grades as it was observed that his general ability to spell and calculate seems somewhat weak.

In matrimonial disputes, when custodial issues arise, young children generally show affinity and inclination towards the parent to whom their custody belongs and they live with. Aditya surprisingly shows more affection towards Perry and his demeanour sounds genuine.

While adopting holistic approach to the child’s growth, it may be considered to allot more time to Perry during further visitations and then extend it to overnight visitations….” (emphasis supplied)

(c) The High Court had a personal interaction with the child, which is recorded in the Order dated 11.05.2016. The relevant extract from the said Order reads as:

“3. The son of the parties Master Aditya Vikram Kansagra has been produced before us today. We have also had a long conversation with him and are deeply impressed with the maturity of this intelligent 6½ year old child who displays self confidence and a remarkable capacity of expressing himself with clarity. He exhibits no sign of confusion or nervousness at all.

4. 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.

5. We must note that the child is at the same time deeply attached to his mother and Nani. His bearing and personality clearly bear the stamp of the fine upbringing being given to him by the appellant and her mother.

6. As of now, since 9th February, 2016, the child is meeting his father and grandparents between 10:30 am and 05:00 pm on Saturday and Sunday in the second week of

every month and for two hours on Friday in the second week of every month. The visitation is supervised as the court has appointed a Counsellor who has been directed to remain present throughout the visitation.

7. We are informed that the child has two passports – one Kenyan and the other British. The Counsellor appears to have been appointed for two purposes firstly to assuage the appellant’s fear that the child would be removed from India and secondly, to ensure his comfort. The second purpose appears to have been achieved.

8. It cannot be disputed that for his complete development, the child needs nurturing from both parents and the love of all grandparents and relatives, if possible. Quality time with his parents and relatives is undeniably in his welfare. The constant presence of the counsellor – certainly an outsider – would certainly prevent the intimacies between a son, his father and grandparents i.e. close family. They have no quality “private” family time.”

(emphasis supplied)

(d) In the Supreme Court, we had called Perry, Smriti and Aditya for a personal interaction in Chambers on 17.03.2020. By this time, the child was over 10 years old. We found Aditya to be a bright and articulate child for his age, who was quite confident, and expressed with clarity about his inclinations and aspirations. We found the child to be emotionally balanced, who was deeply attached to his mother and maternal grandmother, with whom he lives, and at the same time exhibited a strong and deep bond with his father, which had evidently grown by the regular visitations of his father and grandparents every month during the past 8 years. He expressed a strong interest for going to Kenya for his education, and for higher studies to the U.K. He expressed a keen interest to travel overseas, for which he had got no opportunity so far.

(e) What emerges from all these interactions of Aditya with the Courts since 2016 when he was 6 years old, till the present when he is almost 11 years old, is a very positive attitude towards his father and paternal grandparents, even though he has not lived with them since the age of 2½ years when he was a toddler, and had come to India on a visit in March

2012, after which he did not go back.

We place reliance on the Report of the Counsellor dated 21.07.2016, wherein it has been recorded that Aditya idolises his father Perry, and was ready to go to Kenya. The affection and bond of the child with his father was found to be genuine, and not something which was tutored or forced in any manner. The Counsellor recorded that Aditya surprisingly showed more affection towards Perry, and that his demeanour

sounded genuine.

As per Section 17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a

guardian against his will.

In view of the various personal interactions which the courts have had at different stages of the proceedings, from the age of 6 years, till the present when he is now almost 11 years old, we have arrived at the conclusion that it would be in his best interest to transfer the custody to his father. If his preferences are not given due regard to, it could have an adverse psychological impact on the child.

13. Other considerations regarding the welfare of the minor 31

Having considered his preferences and aspirations, we will now consider other aspects with respect to the welfare of the child.

(a) Aditya is a citizen of Kenya and U.K., even though he was born in India. Evidently, his parents took a conscious decision to obtain dual citizenship of Kenya and U.K. for him soon after his birth, when he ceased to be an Indian citizen, by virtue of the Explanation to Clause 2 of Rule 7 of the Registration of Foreigners’ Rules, 1982 and Section 9 of the Citizenship Act, 1955.

Aditya travelled to India in 2012 on a Kenyan passport, with an OCI card attached to his passport. The Kenyan passport was cancelled in 2016 when a noncognizable report was filed by Smriti regarding the loss of his passport. Subsequently, no steps were taken to obtain a fresh Kenyan passport to date.

The factum of his nationality is a relevant aspect which has to be given due consideration while deciding the issue of custody of the child.

In Re L (minors) (wardship: jurisdiction)⁶, the Court of Appeal in England held that every matter having relevance to the welfare of the child should be taken into account and given such weight as the court deems fit, subject always to the welfare of the child being treated as paramount. Nationality is a factor which is an important aspect and must be taken into consideration, to determine where the welfare of the child would lie.

6 [1974] 1 All ER 913.

(b) The educational opportunities which would be available to the child is an aspect of great significance while determining

the best interest of the child.

It was submitted on behalf of Perry that he has secured admission for Aditya in the Nairobi International School, which follows the IB curriculum. This would be more beneficial to him, given the fact that he is a dual citizen of Kenya and United Kingdom, and intends to pursue further education overseas. Being a citizen of United Kingdom, the child would get various opportunities as a citizen for admission to some of the best universities for further

education, which would be in his best interest.

(c) It is necessary that Aditya gets greater exposure by overseas travel. It is important for him to be exposed to different cultures, which would broaden his horizons, and facilitate his allround development, and would help him in his future life.

(d) The minor child Aditya is the heir apparent of a vast family business established by the family of Perry in Kenya and U.K. Since the businesses of the paternal family are primarily established in Kenya and the U.K., it would be necessary for Aditya to imbibe and assimilate the culture and traditions of

the country where he would live as an adult.

It would also be necessary for him to learn the local language of Kiswahili, and adapt himself to the living conditions and surroundings of the country. Since the child is still in his formative years of growth, it would be much easier for him to imbibe and get acclimatized to the new

environment.

(e) The minor child has been in the exclusive custody of his mother from birth till adolescence, which is the most crucial

formative period in a person’s life. Having completed almost 11 years in her exclusive custody, Aditya is now entitled to enjoy the protection and care of his father, for his holistic growth and development. However, Smriti’s continued participation in the growth and development of the child would be crucial. It must be recognized that Smriti has given her best to Aditya, and had him admitted in one of the best public schools in Delhi. The credit must also go to her for ensuring that the child is emotionally balanced, and has not tutored him against his father and paternal family.

14. Objection regarding racism

The objection raised by Smriti regarding Perry being racist has not been established from the material on record. Perry and his family have been living in Kenya for over 85 years, and have established an extensive business in that country. There is no evidence brought on record to substantiate the allegation, except an oral submission made on behalf of Smriti. We do not feel that any importance can be given to this objection as a ground for refusing custody of the child to Perry.

15. Objection regarding excessive drinking

With respect to the allegation of alcoholism and excessive drinking made by Smriti, both the Family Court and the High Court have considered this objection at length and considered the evidence led by her in this regard. She had produced R.W.2, a practicing advocate from the chambers of her Counsel, who has deposed with respect to two incidents which allegedly took place at social events in Delhi. The evidence of R.W.2 was discarded as being unreliable, by both the Family Court and the High Court, since it was not corroborated by the evidence of

Smriti and her mother, who were present on both these occasions. Furthermore, since R.W.2 and his wife were colleagues of her counsel, and she herself had been an associate in the same office, the Courts below were of the view that R.W.2 was an interested witness, and his evidence could not be relied upon, and had to be disregarded. We, therefore, reject this objection as being unsubstantiated.

16. Allegation of marital infidelity

The allegation of marital infidelity made by Smriti as a ground to refuse custody to Perry, has been seriously disputed by him. The allegation is based on certain messages which Smriti submits that she stumbled upon, when Perry was visiting India in April 2012. She states that she found Perry busy sending messages from his Blackberry. When she happened to read these messages, she found that Perry had received certain romantic messages from a woman named Sonia from Mozambique. She submits that she forwarded the messages to her own email address, which were downloaded and filed before

the Family Court in the Guardianship proceedings.

Perry has strongly refuted these allegations on the ground that the messages were fabricated by Smriti. It was submitted that there was not even a mention of these messages in her Police complaint filed on 05.05.2012, which was immediately after she had allegedly stumbled upon these messages. Furthermore, there is no mention of such messages/emails in the Plaint of Suit No.1604/2012 filed by Smriti on 26.05.2012 before the Delhi High Court. There is no mention of the messages allegedly exchanged by a woman named Sonia from Mozambique with Perry, or the contents of the messages.

It was submitted that Smriti has given different versions in each of the proceedings, which would show that they are devoid

of any truth.

The typed copies of these messages were produced for the first time in 2017 with her evidence in the Guardianship proceedings before the Family Court, which were given “Mark

B”.

On a perusal of the messages in “Mark B”, we find that Perry is supposed to have received these messages from Sonia

on 02.04.2012 and 04.04.2012.

In her affidavit of evidence dated July 2017, Smriti stated that Perry received these messages on 22.04.2012, which were forwarded to her email address “immediately”. These emails were dated 05.05.2012 and 06.05.2012 and

exhibited as Exhibit RW1/4 Colly.

In her Evidence by way of Affidavit dated 03.07.2017,

Smriti states as follows :

“29. In April 2012 only, during his visit to Delhi, I came across certain messages on the phone of the Petitioner I came across various messages in the Blackberry phone of the Petitioner exchanged between one Ms.Sonia and him. I immediately emailed the said messages to my email account. The messages have already been marked as Mark B by P.W.1 in her evidence and I am marking the emails containing the messages as Exhibit RW 1/4 Colly. …”

(emphasis supplied)

Smriti filed a certificate dated 18.09.2017 under S.65B of the Indian Evidence Act, 1872 before the Family Court, which

states :

“2. That the emails dated emails dated 05.05.2012 and 06.05.2012 contains messages received by the Petitioner. The said emails have been collectively exhibited as Exhibit RW1/4 during my cross examination.

…

5. I confirm that the print outs of the said Emails as filed before the Hon’ble Court are identical to the Emails contained in my inbox.”

In the Supreme Court, it was submitted that the messages were dated 22.04.2012, which she had forwarded from the Blackberry of Perry to her cellphone in April 2012. These messages were emailed to her email ID from her cellphone in

May 2012.

Perry contended that this was an entirely new version with respect to the messages, which had not been raised either

before the Family Court or the High Court.

Perry challenged the authenticity of these messages, and submitted that these emails were forged and fabricated by Smriti. The emails show that they had been sent on 05.05.2012 and 06.05.2012, on which dates Perry was

admittedly not in India.

Perry further submitted that the emails have been fabricated by Smriti, since she could easily have typed out the content of these messages on her own cellphone, and then

emailed it to her email account.

Section 65B of the Indian Evidence Act, 1872 provides :

“65B. Admissibility of electronic records.—(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over

that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. ….

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate

for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate,

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

(emphasis supplied)

The certificate u/S. 65B produced by Smriti merely states that the content of the emails placed on record were the same as the content of the emails on her inbox. This certificate does not certify the source of the messages allegedly received on the Blackberry of Perry, which were transferred to her cellphone. In the absence of a certificate in accordance with

S.65B, with respect to the source of the messages, we cannot

accept the same as being genuine or authentic.

This Court in a recent decision delivered by a bench of three Judges in Arjun Pandit Rao Khotkar v. Kailash

Kushanrao Gorantyal⁷ held as under :

“59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor, (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.”

(emphasis supplied)

The Family Court rejected the allegations of marital

infidelity based on the aforesaid emails.

The High Court also holds that the emails were dated 05.05.2012 and 06.05.2012; on which dates, Smriti could not have had access to the Blackberry of Perry, since Perry had left India on 26.04.2012, which has been admitted by Smriti

in her examinationinchief.

In view of the aforementioned facts, and the law laid down by this Court, we are unable to place reliance on the emails with respect to the allegations of marital infidelity. We, therefore, affirm the findings of the Family Court and High Court in this regard.

17. Criminal proceedings pending against Perry

The Counsel for Smriti placed great emphasis on the pendency of criminal proceedings against Perry arising out of the

7 2020 SCC OnLine SC 571.

dam burst in the Solai farms owned by him and his family. It was submitted that the pendency of criminal proceedings against him would be the most determinative factor for declining

guardianship to Perry.

Perry refuted these allegations, and informed the Court that it was on account of unprecedented rainfall in May 2018 in Kenya, that several dams had burst in different parts of the country, which caused the death of some civilians living in those areas. He placed reliance on the Report of UNICEF, and documents to show that the dam burst had occurred on account of a natural calamity. It was submitted that there was no culpability on the part of Perry, nor was there any hostility from the local populace against him and his family members. This would also be evident from the fact that his grandmother who

was 101 years old, was living alone in Solai Farms.

We were informed by the Counsel for Perry that he had been acquitted of all charges by the Trial Court. The Order of acquittal was however challenged before the High Court, which remanded the matter to the Trial Court for a retrial, which is

pending as on date.

We are of the view that the pendency of this case is not a valid ground to refuse custody of Aditya to his father. The criminal proceedings have arisen out of a natural disaster, and cannot be blown out of proportion to contend that he would be

unfit for grant of custody of his son.

18. For the aforesaid reasons, we are of the view that it would be in the best interest of Aditya, if his custody is handed over to his father Perry Kansagra. Once Aditya shifts to Kenya, he would be required to adapt to a new environment and study in a new educational system with a different curriculum. It would be in the best interest of the minor if he is able to go to Kenya at the earliest,

so that he has some time to adapt to the new environment, before the new term starts in January 2021 in the Nairobi International

School.

This would, however, not imply that the mother would be kept out of the further growth, progress and company of her son. Smriti would be provided with temporary custody of the child for 50% of his annual vacations once a year, either in New Delhi or Kenya, wherever she likes. Smriti will also be provided access to Aditya

through emails, cellphone and Skype during the weekends. 19. Accordingly, we affirm the concurrent findings of the Courts

below.

(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 intercountry marriages, the English courts have issued protective measures which take the form of undertakings, mirror orders, and safe habour 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 the court which has exercised

primary jurisdiction over the custody of the child. In international family law, it is necessary that jurisdiction is exercised by only one court at a time. It would avoid a situation where conflicting orders may be passed by courts in two different jurisdictions on the same issue of custody of the minor child. These orders are passed keeping in mind the principle of comity of courts and public policy. 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.

The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of

visitation and temporary custody are not impaired.

The judgment of the court which had exercised primary jurisdiction of the custody of the minor child is however not a matter of binding obligation to be followed by the court where the child is being transferred, which has passed the mirror order. The judgment of the court exercising primary jurisdiction would

however have great persuasive value.

(d) The use of mirror orders to safeguard against child abduction was first analysed by Singer J. In re P (A Child: Mirror Orders)⁸. The relevant extracts from that judgment are set out hereinbelow

“…Though these are the facts as far as relevant of this

particular case, they in turn reflect a relatively common

situation made ever more common by the frequency of transnational and transcultural marriage and therefore

inevitably an increased frequency of separation and

breakdown in such marriages. It is nowadays by no means

8 [2000] I FLR 435.

uncommon to find families upon separation separated by frontiers or by oceans.

Contact to the nonresidential parent in that parent’s home country, which often according to circumstance may be a country with which the child has prior connections, may be highly desirable. Yet for it to flourish it is necessary either for there to exist (or to develop if it is lacking) a confidence mutually between the parents, or for there to be a satisfactory judicial framework that lessens anxieties and may help to produce confidence where none exists.

…

As it happens, for some years now, more often of course in unreported but not infrequently in reported cases, Family Division judges and judges of the Court of Appeal have advocated in appropriate cases that the parties before them, where contact or a move to live abroad is in contemplation, should provide precisely that form of cordon sanitaire in that foreign jurisdiction which in this case the parties would seek to create here for their child.

Thus, England’s judges have invited parties to go off and get mirror orders or their noncommon law equivalents in Chile, Canada, Denmark, the Sudan, Bangladesh, Egypt and even in Saudi Arabia. For instance, in Re HB (Abduction: Children’s Objections) [1998] 1 FLR 422, in a passage at 427H, Thorpe LJ said this:

“… it is important not only that the

parents should combine to contain the children but also that the court systems in each jurisdiction should equally act in concert. Once the primary jurisdiction is established then mirror orders in the other and the effective use of the [Hague] Convention gives the opportunity for collaborative judicial function. The Danish judge and the English judge should in any future proceedings if possible be in direct communication.”

…

In Re E (Abduction: NonConvention Country) [1999] 2 FLR 642, the return of a child to the Sudan, a non Convention country, was approved by the Court of Appeal. In the leading judgment Thorpe LJ observed that:

“… the maintenance of mutual confidence

within the member States is crucial to the practical operation of the [Hague] Convention. But the promotion of that confidence is probably most effectively achieved by the development of channels for judicial communication … The further development

of international collaboration to combat child

abduction may well depend upon the capacity of

States to respect a variety of concepts of child welfare

derived from differing cultures and traditions. A

recognition of this reality must inform judicial policy

with regard to the return of children abducted from

nonmember States.”

…

Where the Hague Convention does not apply, mirror

orders find a more prominent place. Again, the situation will

be that it will be the English court inviting the parties to seek

an order in the country to which the child is to return to

reflect, for instance, contact provisions that have been

agreed to take place in England.

The third category is those cases where application is

made for leave to remove permanently from England for a

new life abroad. Again, mirror orders are by no means

untypical or unusual. Again, it is from the foreign court that

the parties will hope to obtain such an order, and it is from

the foreign court that English judges have from time to time

required as a condition that such orders should be obtained.

…

The ‘mirror order’ jurisdiction is supportive of the

foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the

foreign order but to enforce it if there is need for enforcement.

…

I therefore have no difficulty at all in concluding that

as a matter of common sense, of comity and indeed may I

say of public policy, the High Court should have the ability

to make orders such as this: that is to say orders of the sort

which English judges have frequently in past years invited

other courts to make.”

(e) The judgment of Singer J. was affirmed by a three judge bench comprising of Thorpe, Rimer and Stanley Burnton L JJ of the High Court of Justice, Court of Appeal, Civil Division In re W (Jurisdiction : Mirror Order)⁹. In the words of Thorpe L J., it was

opined that :

“ …One of the imperatives of international family law is to

ensure that there is only one jurisdiction, amongst a number

9 [2014] 1 FLR 1530 : [2011] EWCA Civ 703.

of possible candidates, to exercise discretionary power at any one time. Obviously comity demands resolute restraint to avoid conflict between States. That is the realistic aim of Conventions and Regulations in this field.

…

[47] Another realistic aim is to provide protective measures to safeguard children in transit from one jurisdiction to another or to ensure their return at the conclusion of a planned visit.

[48] Protective measures take the form of undertakings, mirror orders and safe harbour orders. As yet there is no accepted international, let alone universal, mechanism to achieve protective measures. Even amongst common law jurisdictions there is no common coin.

[49] In many ways the power to make mirror orders is the most effective way of achieving protective measures. What the court in the jurisdiction of the child’s habitual residence has ordered is replicated in the jurisdiction transiently involved in order to ensure that the parents are equally bound in each State.

[50] The mirror order is precisely what it suggests, an order that precisely reflects the protection ordered in the primary jurisdiction. The order in the jurisdiction transiently involved is ancillary or auxiliary in character.

[51] This categorisation is well established in our case law. In F v F ((minors) (custody): Foreign Order)) [1989] Fam 1, [1989] FCR 232, [1988] 3 WLR 959 Booth J directed that no access should take place in France until a mirror order was made in that jurisdiction. There are innumerable other examples of the use of mirror orders both in this jurisdiction and in other jurisdictions, most but not all States party to the 1980 Hague Abduction Convention. By way of further example I cite the case of Re HB [1998] 1 FCR 398, [1998] 1 FLR 422, [1998] Fam Law 128.

…

[53] Undoubtedly the controlled movement of children across international frontiers would be a good deal safer and easier if, say, the jurisdictions of the common law world or the jurisdictions operating the 1980 Hague Convention, put in place powers to enable mirror orders to be made in response to appropriate requests.

…

[55] The government’s failure to provide an express power to make mirror orders presented Singer J with the dilemma.

In Re P (A Child: Mirror Order) [2000] 1 FCR 350, [2000] 1 FLR 435, [2000] Fam Law 240 the pressure on the judge to find jurisdiction was considerable. The request was entirely meritorious. Accordingly Singer J observed:

“I therefore have no difficulty at all in concluding as a matter of common sense, of comity and indeed, may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently, in past years, invited other courts to make.”

[56] Singer J prefaced his consideration of the submissions advanced with the following formulation:

“When it makes a mirror order, which of course I would have no difficulty in doing if the child were physically present in this country today, the English judge does not consider the welfare of the child. He takes the order of the foreign court as read. Thus I can frankly say that I have not

for a moment considered whether I would have provided this contact or different contact, and indeed I have not investigated the merits, nor been shown any materials beyond the order of the American court.

Thus (this argument runs) in taking the jurisdiction to make such an order without consideration of the welfare principle which otherwise s 1 of the Children Act would render paramount, the English Court is exercising a power of a fundamentally different type from when it considers a domestic s 8 or inherent jurisdiction dispute and reaches welfare decisions. The ‘mirror order’ jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement.”

…

[62] For the purposes of this appeal what is valuable

is Singer J’s recorded analysis of the essential character of a mirror order. I would adopt all that he said on that point which is fundamental to the disposal of the present appeal…”

(f) The commentary by Dicey, Morris and Collins on Conflict of Laws discusses the application of mirror orders in the context of

private international law, and opines as :

“…The jurisdictional rules in this clause were given an extended meaning by Singer J. in Re P (A Child : Mirror Orders). A United States court was prepared to allow a child

to travel to England on condition that a “mirror order” was

made by the English court to ensure the child’s return. The

English courts have often adopted a similar practice. The

child in the instant was neither habitually resident nor

present in England. Nonetheless an order was made on the

basis of “common sense, comity, and public policy”; it was

expressly limited to the period during which the child was

present in England…”.¹⁰

(emphasis supplied)

(g) The Delhi High Court in Dr. Navtej Singh v. State of NCT of Delhi & Anr.¹¹ directed the husband to obtain a mirror order of the directions issued by the High Court, from the Superior Court of the State of Connecticut of Norwalk, U.S.A. The judgment of the High Court was affirmed by this Court in Jasmeet Kaur v.

State (NCT of Delhi) and Anr.¹²

20. In view of the aforesaid discussion, we consider it just and appropriate that the custody of Aditya Vikram Kansagra is handed over by his mother Smriti Madan Kansagra, to the father Perry Kansagra, subject to the following directions, which will take effect

in supersession of the Orders passed by the Courts below : (a) We direct Perry Kansagra to obtain a mirror order from the

concerned court in Nairobi to reflect the directions contained in this judgment, within a period of 2 weeks from the date of this judgment. A copy of the Order passed by the court in

Nairobi must be filed before this Court;

(b) After the mirror order is filed before this Court, Perry shall deposit a sum of INR 1 Crore in the Registry of this Court, which shall be kept in an interest bearing fixed deposit account (on autorenewal basis), for a period of two years to ensure compliance with the directions contained in this judgment.

10 The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 2, Chapter 19, paragraph 19050, p. 1135.

11 2018 SCC OnLine Del 7511.

12 2019 (17) SCALE 672.

If this Court is satisfied that Perry has discharged all his obligations in terms of the aforesaid directions of this Court, the aforesaid amount shall be returned with interest accrued,

thereon to the respondent;

any obstruction in this behalf;

(d) Within a week of the mirror order being filed before this Court, Smriti shall provide the Birth Certificate and the Transfer Certificate from Delhi Public School, to enable Perry

to secure admission of Aditya to a School in Kenya;

(e) Smriti will be at liberty to engage with Aditya on a suitable videoconferencing platform for one hour over the weekends; further, Aditya is at liberty to speak to his mother as and

when he desires to do so;

(f) Smriti would be provided with access and visitation rights for 50% once in a year during the annual vacations of Aditya, either in New Delhi or Kenya, wherever she likes, after due

intimation to Perry;

(g) Perry will bear the cost of one trip in a year for a period of one week to Smriti and her mother to visit Aditya in Kenya during his vacations. The costs will cover the air fare and

expenses for stay in Kenya;

(h) Smriti will not be entitled to take Aditya out of Nairobi,

Kenya without the consent of Perry;

(i) We direct Perry and Smriti to file Undertakings before this Court, stating that they would abide and comply with the directions passed by this Court without demur, within a

period of one week from the date of this judgment.

21. As an interim measure, we direct that till such time that Perry is granted full custody of the child, he will be entitled to unsupervised visitation with overnight access during weekends

when he visits India, so that the studies of Aditya are not disturbed. Perry and his parents would be required to deposit their passports before the Registrar of this Court during such period of visitation. After the visitation is over, the passports

shall be returned to them forthwith.

22. This appeal shall be listed before the Court after a period of four weeks to ensure compliance with the aforesaid directions, and on being satisfied that all the aforestated directions are duly complied with, the custody of Aditya Vikram Kansagra shall be handed over by his mother Smriti Kansagra to the father Perry

Kansagra.

The Appeal is accordingly dismissed, with no order as to costs.

………………………….J.

(UDAY UMESH LALIT)

………….………………J.

(INDU MALHOTRA)

NEW DELHI;

OCTOBER 28, 2020

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3559 OF 2020

(ARISING OUT OF SLP (CIVIL) NO.12910_ OF 2020) (DIARY NO. 8161 OF 2020)

SMRITI MADAN KANSAGRA …..APPELLANT(S) VERSUS

PERRY KANSAGRA …..RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

Leave granted.

1. I have gone through the detailed judgment authored by Sister Justice Indu Malhotra, but I am unable to persuade myself to agree with the views expressed by her.

2. The present appeal is directed against an order dated 25.2.2020 of the Delhi High Court whereby the first appeal preferred by the appellant¹ against an order passed by the Family Court on 12.1.2018 was dismissed.

3. The brief undisputed facts are that the marriage between the

1 Hereinafter referred to as “Smriti”.

parties was solemnized on 29.7.2007 at New Delhi. A male child Aditya Vikram Kansagra² was born out of the wedlock on 2.12.2009 at New Delhi. The parties are living separately since 26.4.2012. Smriti is an Indian citizen whereas the respondent³ and the child have dual citizenship of Kenya and United Kingdom. The child also has been granted OCI (Oversees Citizen of India). The litigation began with Smriti filing a suit for permanent injunction⁴ restraining Perry and his parents from removing the child from her custody. During the pendency of such suit, numerous orders were passed regarding visitation rights to Perry.

4. Thereafter, Perry filed a petition under Section 7 of the Guardians and Wards Act, 1860⁵ bearing Guardianship Petition No. 53 of 2012 before the Family Court, Saket on 06.11.2012. It is the said petition which was allowed by the learned Family Court on 12.1.2018 and later affirmed by the High Court vide the Impugned Judgment dated 25.02.2020.

5. The learned counsel for the parties referred to the pleadings in other intra-party proceedings as also the documents which may not be part of the record of the Guardianship proceedings in support of their respective contentions. Since no objection was raised regarding consideration of these documents and pleadings, the same are taken into consideration, reference of which will be made

2 Hereinafter referred to as “child”.

3 Hereinafter referred to as “Perry”.

4 For short “Suit” [CS (OS) No. 1604 of 2012].

5 For short, the “Act”.

at the relevant stage. However, reference to such pleadings and documents are only for the purpose of the present proceedings.

6. The following cases were filed before the competent courts:

(i) CS (OS) No. 1604 of 2012 – withdrawn on 31.8.2015 in view of Guardianship petition filed by Perry, but with a direction that the interim orders passed in the suit will continue till the disposal of the application for visitation

rights by the Family Court.

(ii) Guardianship Petition No. 53 of 2012 – The same was decided by the Family Court on 12.1.2018 and the appeal was dismissed on 25.2.2020, which is the subject matter

of challenge in the present appeal.

(iii) Divorce Petition No. HMA No. 302 of 2019 – filed by Smriti under Section 13 of the Hindu Marriage Act for dissolution of marriage on the grounds of cruelty and desertion. Perry also filed a petition for dissolution of marriage which is

also pending before the Family Court.

(iv) HMA No. 3 of 2017 – filed on behalf of the child and Smriti to claim maintenance from Perry which is pending before the Family Court, Patiala House Court, New Delhi.

7. In a suit filed by Smriti before the High Court on 26.5.2012 to restrain the defendants, Perry and his parents, to illegally remove the child from the custody of Smriti, she has inter-alia stated to the following effect:

“12. …In other words, it was their own feudal arrogance

which was reinforced by the birth of a male child. The

welfare and upkeep of the child itself was irrelevant for

the Defendants. Defendants after the birth of Plaintiff No. 1 were of the view that Plaintiff No. 2 would look after their male progeny. In other words, the Defendants were of the view that Plaintiff No. 2 was a mere caretaker of their male heir.

13. Things changed for the Defendants after Plaintiff No. 1 was born. It is again pertinent to mention here that Defendant No. 3 did not resume conjugal relations with Plaintiff No. 2 after the birth of Plaintiff No.1 and it appeared as if she had served her purpose by giving birth to Plaintiff No. 1. Thus, there have been no conjugal relations between Plaintiff No. 2 and Defendant No. 3 since then because of the palpable desire of the Defendant No. 3 not to have conjugal relation with Plaintiff No. 2. The real reasons for the denial of conjugal relations, however, have now come to light and the Plaintiff No. 2 would give the details in the appropriate forum and hereby reserves the same.

xx xx xx

23. That the Defendant No. 3 eventually decided to come to New Delhi on 21.04.2012. As per his plans, he wanted to stay in Delhi for a period of six days and his return ticket was for 26.04.2012. In this visit the defendant no. 3 demonstrated an extremely belligerent attitude towards the Plaintiff no. 2 and would fight with her on the smallest of pretexts. Rest of the time the Defendant no. 3 would be constantly text messaging someone from his

mobile. This was the feature throughout his visit and the Plaintiff no. 2 later on realized that it was related to his breach of marital fidelity. On 22.04.2012 the Defendant No. 3 after talking with his parents (Defendant no. 1 and 2) started to quarrel with the Plaintiff no. 2. He categorically told the Plaintiff no. 2 that he wanted the child to be sent back to Kenya as he no longer wanted the Plaintiff no. 2 to be taking care of “his child”. The Defendant no.3 told the Plaintiff no. 2 that such was the insistence of his parents also. The Defendants were of the view that the child was essentially a Kansagra scion, a male heir and that the Plaintiff no. 2 had a limited role which in any event she was not discharging well. When the Plaintiff no. 2 resisted such ridiculous, feudal and wholly illegal statements of the Defendant no. 3, he abused her and

said that the Plaintiff no. 2 was perhaps unaware of the

vast influence that the Defendants exercised across the

globe and that he would ensure that the Plaintiff no. 2’s

so called protection under the Indian law was breached

without her bring in a position to do anything about it.

The Defendant no. 3 further threatened Plaintiff no. 2 by

stating that “the Kansagras always have their way, so

don’t you even dream of denying what we want”.

Though the Plaintiff no. 2 was very scared by all these

utterances of the Defendant no. 3, she thought perhaps

these ere empty threats. The Defendant no. 3 also kept

a close watch on her activities. The Plaintiff no. 2 thus

could not immediately register a police complaint.

xxx xxx

Prayers

In the facts and circumstances, it is most

respectfully prayed that this Hon’ble Court may

graciously be pleased to:

a) …..

b) …..

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”

8. Perry in his written statement stated as under:

“4. That the Plaintiff No. 2 was always adamant the

Plaintiff No. 1 to be brought up in India against the

wishes of the Defendants. It is submitted that the

Defendants are settled in Kenya and leading their lives

as per the western culture and lifestyle. The

grandfather father of the Defendant No. 3 and father of

the Defendant No. 1, shifted to Kenya in the year 1935.

The Defendant No. 1 and 3 were raised in the western

culture and are accustomed only to the western

lifestyle. They are completely alien to the Indian

lifestyle and culture and therefore, their one and only

preference is to raise the child in a Western Culture. It is

submitted that the child also has a vested right to be

exposed to and get accustomed to the culture and

lifestyle of his father and grandparents and this link

cannot be broken at the instance of the mother to raise

the child in the Indian culture….

xx xx xx

23. That the contents of para 23 are wrong and

therefore, denied. It is denied that in this visit the

Defendant No. 3 demonstrated an extremely belligerent

attitude towards the Plaintiff No. 2 and would fight with

her on the smallest of pretexts. It is denied that rest of

the time the Defendant No. 3 would be constantly test

messaging someone from his mobile. It is denied that

this was the feature throughout his visit and the Plaintiff

No. 2 later on realized that it was related to his breach

of marital fidelity and it is submitted that the allegations

of the Plaintiff No. 2 are completely vexatious and has

caused grave agony to the Defendant No. 3. It is

submitted that the Defendant No. 3 reserves his rights

to take appropriate course of legal action against the

allegations of the Plaintiff No.2. It is denied that on

22.04.2012 the Defendant No. 3 after talking with his

parents (Defendant No. 1 and 2) started to quarrel with

the Plaintiff No. 2.”

9. In the Guardianship petition, Perry had sought his appointment as the guardian of the child as well as the physical custody of the child who was almost 3 years of age when the proceedings were initiated. Perry had pleaded that the marriage between the parties was an arranged marriage and Smriti was made well-versed about his family and life style. Smriti was categorically told that she has to settle in Kenya and she was ready to give up her own law practice in New Delhi for the same. It was pleaded that Smriti’s behaviour began to change for the worse after she conceived. Smriti was adamant about the delivery to take place in India. Perry and his parents allowed her to travel of her own free will. Smriti remained in India for close to a year and Perry used to visit her every month without fail. He also continued to give huge amounts of pocket money as well as her handsome salary in

Kenya. It was pleaded that Smriti is a practicing lawyer and is always busy and occupied with her work. Thus, if the custody of the child is given to Perry and his family, it would be better for the upbringing of the child as both his grandparents are very fit and in a much greater condition to take care of the child. Perry pleaded as under:

“18. That the Petitioner states that the Respondent is

not a fit and proper person to take the responsibility of

the child. It is submitted that the Respondent is a

practicing lawyer and she is always busy and occupied

with her work and there is no one in the family to take

care of him. The Respondent does not have a family, as

she is staying alone with her old mother. Furthermore

the mother of the Respondent is not in a state to take

care of the child as she is herself suffering from ill health

and dependent on other people to take care of.

Therefore, the child is being forced to live an isolated

life in Delhi. It is submitted that if the child’s custody is

given to the Petitioner and his family, it would be better

for the upbringing of the child as both his grandparents

are very fit and in a much greater condition to take care

of the child, in the manner the child could never be

looked after in the Respondent’s house. The child’s

grand parents can devote all their time to their

grandson and shower him with a lot of love and

affection and teach him traditional values of life.

It is submitted that the Petitioner has been undertaking

these visits to take care of interest of the child. The

Petitioner was always concerned about the comforts of

the Respondent and the child.

The abovementioned dates clearly show that the

Petitioner regularly visited the child so that the child

does not feel isolated or neglected. It shows the genuine

concern of the Petitioner for the paramount welfare of

the child.”

10. Perry pleaded that he and his parents were raised in western culture and are accustomed only to the western lifestyle and thus

their preference is to raise the child also likewise. Perry further pleaded that maternal grandmother of the child is not in a state to take care of him as she herself is suffering from ill-health and is dependent on other people to take care of. Perry pleaded as under:

“21. That the Respondent was always adamant regard

ing the child to be brought up in India against the

wishes of the Petitioner and his parents. It is submitted

that the Petitioner and his parents are settled in Kenya

and leading their lives as per the western culture and

lifestyle. The Petitioner and his parents were raised in

the western culture and are accustomed only to the

western-lifestyle and thus their preference is to raise

the child in a Western Culture. It is submitted that the

child also has a vested right to be exposed to and get

accustomed to the culture and lifestyle of his father.

and grandparents and this link cannot be broken at the

insistence of the mother to raise the child in the Indian

culture. If the contrary is being allowed, the child would

fail to identify himself with the life and values of his pa

ternal family and his paramount welfare will be com

pletely devastated. The child further has a right to live

in the manner in which is father lives and the same can

not be denied to the child on account of an obstinate

mother. The child further has a birth right to follow the

morals and values of the father and the grandparents.”

11. Perry also pleaded that he noticed suicidal tendency in Smriti. She is a threat to herself and, therefore, the child cannot be safe with her. It has been stated that during one of his visits to Delhi, Perry had seen slit marks on both the wrists of Smriti. It was also pleaded that Smriti has always been very abrasive and cruel with her house help, servants, maids, drivers, nannies and such like both in India and in Kenya. Further he pleaded that Smriti has told several cousins of Perry in USA and UK that she could not cope with the child and was finding it hard to manage with him.

12. In the written statement filed on 22.5.2013, Smriti pleaded that the child was of very tender age and has stayed in India for 30 out of 40 months after his birth. Also, she averred that it was Perry’s and his family’s desire to raise the child as per Indian upbringing. A detailed arrangement for the same was planned and written down in a notebook by Perry whereby the child was to stay in for four months in Kenya, seven months in India and one month in UK with regular intervals. It was submitted that Perry and his family always wanted that the child to be brought up in India. Perry often told his relatives and friends in Kenya and India that the child would be staying six months in Kenya and six months in India. The Schedule of stay of the child in the year 2010 and 2011, written by Perry in his own handwriting, is reproduced hereunder:

“2010

JAN, FEB, MAR, APR, MAY – INDIA

JUN – KENYA

JUN, JUL – KENYA

JUL – UK

AUG, SEP, OCT – KENYA (HOLIDAY)

OCT – INDIA

OCT, NOV, DEC – INDIA

2^ND DEC A.V. – 1^ST B’DAY

7 MTHS – INDIA

1 MTH – UK & HOLIDAY

4 MTHS – KENYA

2011

JAN, FEB, MAR – INDIA

MAR – KENYA

MAR, APR, MAY, JUN – KENYA

JUL – UK

JUL, AUG – KENYA (HOLIDAY)

SEP – INDIA

SEP, OCT, NOV, DEC – INDIA

2^ND DEC A.V. 2^ND B’DAY

7 MTHS – INDIA

1 MTH – UK & HOLIDAY

4 MTHS – KENYA”

13. It was asserted that the child is involved in various outdoor and in door extracurricular activities. The child often goes to the park to play with his friends. He goes for horse riding and is also enrolled in art, gymnastic and dramatic classes. The child is enjoying a holistic upbringing, better than what he could have had in Kenya. It was also pleaded that Perry and the grandfather of the child are very influential and powerful business family and often misuse it to their advantage. They lead a very luxurious lifestyle and enjoy showing off their wealth and power and exerting influence. It was pleaded that Smriti happily left her job in Delhi in order to join Perry in Kenya. She averred that it was agreed that she would help Perry with legal issues of the business as and when required and a salary was also paid to her for the same. Perry and his family were looking for a daughter-in-law with strong Indian values and Indian culture so that the Indian culture could be kept alive in Kenya. It was denied that she agreed to get married to foreigner and under stood the implications of getting married in another country and culture. The decision to marry was based on false representation and subterfuge of Perry and his family. At the time of talk of the marriage, the family projected to be very humble, loving and car ing Indian family but later, it was noticed that Perry and his family

are arrogant, rude and insensitive people who only care about money and their business. Smriti, having strong Indian values, un derstood that the marriage is a sacred and a serious institution and thus continued to stay in Kenya and tried to build a family even af ter not being treated well by Perry and his family.

14. The allegations that Smriti was abrasive and rough in nature with the house staff from the very beginning were denied. It was, in fact, pleaded that Perry was the one with a bad temper and often would beat the servants if they committed any mistake or stole milk from the farm. Perry and his family were happy only after they got to know that she had given birth to a male child. It was pleaded that Perry and his family told her that it would be better for her to deliver the child in Delhi and stay with her mother as there would be no one to take care of her in UK during her preg nancy. It was only on the insistence of Perry and his family that she agreed to stay in India during her pregnancy and gave birth to the child in India. One of the pretexts that Perry had for keeping the child and Smriti in India was that the child could be brought up with traditional Indian culture and would imbibe traditional family values based on Hindu customs and ceremonies. However, it tran spired that in reality Perry wanted to keep Smriti away from Kenya as he has gotten drawn into an affair with a woman in Mozambique called Ms. Sonia. It came to Smriti’s notice in April, 2012 that he has been meeting Ms. Sonia very often during the sustenance of marriage with her. In April, 2012, Perry on his visit to New Delhi

strongly shared his desire to visit an old lady friend of his, who was in poor health and had been hospitalized in Paris. On the same day, Smriti stumbled upon a loving and explicit message ex changed between Perry and this woman.

15. It was pleaded that in view of the tender age of the child what is imperative in bringing up the child is the love of his mother and not just luxuries and big house. A child of three years of age needs a loving and a dedicated mother to nurture him and bring him up. It was admitted that Perry and his family are in superior financial position but in the last one year, she has not even been paid a single penny towards the maintenance of the child. It was denied that Smriti’s house in Defence Colony, having three bedrooms, is not big and not well equipped with utilities of life and cannot render all sorts of comfort to the child. Perry and his family are trying to tempt the child by their putative super rich status though not a single penny towards the child maintenance was paid. She averred that no amount of wealth could be a substitute for the love, affection and care which a mother can bestow on her child.

16. Smriti pleaded that, on the contrary, the luxuries in which Perry was brought up has turned him to be an arrogant person who likes to show off his money and power. Perry grew up in a boarding school to which he was sent to at the age of five years and was not brought up with traditional Hindu customs. Perry leads a profligate lifestyle which is decadent and without basic Indian morals and

values which Perry is choosing to call as western culture. Thus, if the child is allowed to be brought up in Kenya, he would also grow up to be a mismatch with confused African feudal attitude, which is irreconcilable with both Indian and western values.

17. It was also pleaded that Perry hardly spent any time with the child when the child was in Kenya as he was travelling for almost 18 days in a month. It was averred that she had left her work in Delhi to move to Kenya and start her family there. Even after coming back, she has taken active and complete day to day care of the child. She is dedicating her life in bringing up the child in a holistic manner and also takes the child for various extra-curricular activities, picnics and outings regularly. It was stated that the grandparents’ love and affection cannot be substituted with the mother’s love, affection and care. Perry himself is proposing that the child would be taken care of by the grandparents if the custody is given to him. It was also stated that India has better education and career prospects than Kenya. Perry wanted to send the child to Pembroke Boarding School at the age of 5 for which he already got the seat booked. However, Smriti has averred that it was not in the welfare of the child. She pleaded that it is unfortunate that Perry is mainly interested in the child learning business skills from him and his father. Further, the allegation of slitting both the wrists as a trait of suicidal tendency was denied inasmuch as a person attempting to commit suicide cannot slit both the wrists at the same time. It was also pleaded that Perry and his parents are

staying in separate houses in Kenya. All other allegations levelled by Perry against her were denied.

18. In rejoinder filed by Perry, the assertions made by Smriti were categorically denied. In respect of the contention of his travelling for 18 days, it was stated as under:

“It is further submitted that the Petitioner maintains a

balance between work and family. The Petitioner is at

home after office hours. His working hours are between

8.00am to 4.00 pm. Though the Petitioner has to travel

abroad, however, it is not that he remains abroad for

over 18 days in a month. The Petitioner during his travel

maintains constant touch with his family. The Petitioner

is not alone to take care of the minor child of the

parties, his parents are equally affectionate towards the

minor child of the parties. The minor child of the parties

would get the constant support and care needed for a

young child.”

19. Perry denied the stand of Smriti of any affair with the woman in Mozambique called Sonia. He reserved his right to take appropriate legal action against Smriti for making such slanderous allegations.

20. Smriti, in her divorce petition, had made a reference of divorce of Perry from a woman belonging to Mumbai which had taken place in the year 2006 (The Marriage was solemnized on 22.12.2000, whereas the Mutual Consent Divorce Decree is dated 9.9.2005. Such document has been produced on behalf of Perry) to assert that Perry is in the habit of neglecting his spouse. Smriti averred in the petition as under:

“7. The Petitioner was informed that Ms. Revati took a

divorce with Respondent around 2006 in a state of

despair and trauma. The prelude to the present petition

would amply show that the Respondent is in the habit of

being neglectful towards his spouse.

xx xx xx

61. In April, 2012 only, during the visit of the

Respondent to Delhi, the Petitioner came across certain

messages on the phone of the Respondent. The said

messages were exchanged between one Ms. Sonia and

the Respondent. The Petitioner immediately emailed

the messages to herself. The Petitioner was shocked

and traumatized after reading the messages which

established that the Respondent was having an extra

marital affair with a lady from Mozambique called Ms.

Sonia. The Respondent would maintain that Ms. Sonia

was a friend, however, when the Petitioner read the

messages exchanged between the Respondent and Ms.

Sonia, it became clear that the Respondent was having

an extra-marital affair with this lady. It was now that the

Petitioner realized that the Respondent wanted the

Petitioner to spend her maximum time in India so that

he could continue his affair and the schedule drawn was

also predicated on the Respondent’s ulterior motive of

continuing his affair with Ms. Sonia, which he could

pursue freely in the absence of the Petitioner.

xx xx xx

69. That it is clear that the Respondent is in no manner

interested in maintaining matrimonial relationship with

the Petitioner. The Respondent and his family members

were only concerned about their “rights” to their male

heir to their business empire.

xx xx xx

72. That the Respondent never intended to work for

having a successful and happy marriage. The

Respondent got married to the Petitioner for purpose of

procreation and whose only utility after having given

birth to a son was to obediently take care of the child.”

21. Smriti filed an affidavit in support of the petition for dissolution of marriage wherein it was stated to the following effect:

“4. That the parties have been separate since

26.04.2012 and there has been no resumption of

cohabitation and/or no restitution of conjugal rights

between the parties since 26.04.2012.”

22. The learned Family Court held that it was absurd that the Schedule prepared for merely two years conferred testamentary guardianship to Smriti over the child. Also, since the date or place of writing down of such Schedule was not pleaded or proved, the learned trial court opined that it must have been written down during the period July, 2010 to March, 2012 in Kenya. There was also no evidence that the Schedule was followed for the year 2010- 11. It was thus held that Smriti was never a guardian of the child, therefore, Perry was not required to establish any of the causes mentioned in Section 39 of the Act to succeed. In respect of welfare of the child, it was held that Smriti lives in a multistorey building in a market-place with her widowed mother and that she is currently not working. The family thus constituted of two non working women. It was held that depriving the child of his legitimate right to inherit the aforesaid business was definitely not in his best interest. The grooming of the child under the care of Perry would be in his best interest. The child could also pick up Kiswahili language, if brought up in the atmosphere where this language is spoken or widely used. The future of the child, therefore, was held to be most secure with Perry. The learned trial court did not accept the allegation of suicidal tendencies in Smriti. In respect of the allegation of adultery by Perry, the learned trial

court held that Smriti has not been able to establish adulterous liaison. It was further held that parental alienation was proved from prayer ‘c’ of the suit for injunction filed by Smriti and also from the Aadhaar card and the bank account opening form where name of Perry is not mentioned. The child was also admitted in the School under ‘single parent category’. With the above findings, the learned Family Court allowed the petition filed by Perry by granting permanent custody to Perry and declared him as the guardian of the child.

23. The High Court dismissed the appeal filed by Smriti, inter alia, for the reason that Perry has been visiting the child every month since 2012 and had even sought extended visitation rights on numerous occasions. The fact that Perry has business interest in Kenya and United Kingdom was admitted by Smriti. The High Court held that Smriti and maternal grandmother of the child are not working and stay at home reaping rental income. Thus, Smriti would not be an ideal role model for the child. The High Court proceeded to hold that though financial superiority can never be the sole ground to grant custody but the same can always be one of the factors to be considered while ascertaining where the overall welfare of the minor lies. Perry stays in a joint family with his parents having a large house enabling the child to play around, whereas Smriti stays with her aged mother in a flat who also doesn’t keep well and is unable to sit or stand for long hours as having been diagnosed with an ulcer in her left ankle. She also suffers from lumbar spondylosis

with degenerative disc disease. It was also found that Smriti had at least on one occasion slit her own wrists.

24. The High Court referred to the report of the Counsellor dated 21.7.2016 and the photographs to return a finding that the child shares a close bond with Perry and grandparents. Perry had travelled from Kenya to New Delhi every month to meet the child which showed genuine love and affection towards the child. The High Court also referred to a transcript of the conversation between the child and Perry’s family which showed that Smriti was feeding the child with stories regarding witches in Nairobi, Kenya and that the plane would crash in order to desist him from going there. It was noted that Perry’s name was withheld from the Aadhaar Card of the child and in the admission form submitted to the school where Smriti got the child admitted as a single parent. The High Court also held that Smriti kept her interests before the interest of the child and used the interim custody of the child as a leverage for bargaining better settlement terms for herself. The High Court further held that Smriti refused the request of Perry for consulting a second doctor at the residence of Smriti herself when the child was ill by terming the request of Perry as mala fide. It was held that though Smriti may be entitled to alimony, however, using the child as a chattel to be traded for alimony or other benefits could never be in the best interests of the child. Thus, the High Court concluded that Perry was in better position to take care of the child and the best interests of the child would be protected

by granting his custody to Perry.

25. Perry expressed his willingness before the High Court to file an undertaking of his mother who is an Indian citizen to ensure visitation rights to Smriti vide separate order of the same date. Perry also stated that an undertaking would be filed before the Indian Embassy at Kenya, the acknowledgment of which would be produced in token of his acceptance of the order and of his submitting to the jurisdiction of the courts in India and the consequences which may follow in case the order is not faithfully complied with.

26. During the pendency of the appeal before the High Court against the final order passed by the Family Court, Smriti moved an application under Order XLI Rules 27 and 28 of the Code of Civil Procedure, 1908⁶ to produce additional facts and documents on record. The additional facts pertained to dam burst on 9.5.2018 in the Republic of Kenya built by the family of Perry on Solai Farms. The Republic of Kenya has registered a criminal case against Perry being CMCR No. 997 of 2018 on various offences including 48 counts of manslaughter. In the present proceedings, Smriti has referred to an order passed by the High Court of Kenya whereby revision petition against Perry under Sections 362, 363 and 365 of the Criminal Procedure Code as applicable in the said Country was allowed. The High Court has set aside the order of acquittal passed by the trial court on 3.2.2020 and ordered a retrial. It is 6 For short, the ‘Code’

submitted on behalf of Perry that an Appeal against such an order is pending before the Higher Court.

27. There are a number of judgments regarding custody of child wherein, foreign courts have passed orders regarding custody one way or the other. But, in the present case, there is no order of any foreign court regarding custody to either mother or father nor there are any proceedings initiated in any other country except India regarding custody of child. Therefore, custody of the child who is ordinarily resident of Delhi is to be examined only keeping in view the principles laid down under the Act read with the Hindu Minority and Guardianship Act, 1956. The judgments arising out of foreign courts are not relevant to determine the issues raised in the present proceedings.

28. In Rosy Jacob v. Jacob A. Chakramakkal

⁷, this Court held that

children are not mere chattels and nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society. The guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

7 (1973) 1 SCC 840

29. In a judgment reported as Nil Ratan Kundu & Anr. v. Abhijit Kundu

⁸, this Court has held that it is not the negative test that the father is not unfit or disqualified to have custody of the son is relevant but the positive test that such custody would be in the welfare of the minor which is material and it is on that basis the Court should exercise the power to grant or refuse the custody of minor in favour of father, mother or any other guardian.

30. This Court in a judgment reported as Gaurav Nagpal v. Sumedha 9

Nagpal

considered the argument of the father that he lives in a

posh locality and the house is built on nearly 3000 sq. yards whereas the respondent, a teacher, resides with her parents in a two-bed room flat. The custody of Child was given to mother though father had better financial status. This Court reviewed the law relating to custody in various countries and held as under:

“43. The principles in relation to the custody of a minor

child are well settled. In determining the question as to

who should be given custody of a minor child, the

paramount consideration is the “welfare of the child”

and not rights of the parents under a statute for the

time being in force.

xx xx xx

48. Merely because there is no defect in his personal

care and his attachment for his children—which every

normal parent has, he would not be granted custody.

Simply because the father loves his children and is not

shown to be otherwise undesirable does not necessarily

lead to the conclusion that the welfare of the children

would be better promoted by granting their custody to

him. ………..

8 (2008) 9 SCC 413

9 (2009) 1 SCC 42

xx xx xx

50. When the court is confronted with conflicting

demands made by the parents, each time it has to

justify the demands. The court has not only to look at

the issue on legalistic basis, in such matters human

angles are relevant for deciding those issues. The court

then does not give emphasis on what the parties say, it

has to exercise a jurisdiction which is aimed at the

welfare of the minor. As observed recently in Mausami

Moitra Ganguli case [(2008) 7 SCC 673 : JT (2008) 6 SC

634] , the court has to give due weightage to the child’s

ordinary contentment, health, education, intellectual

development and favourable surroundings but over and

above physical comforts, the moral and ethical values

have also to be noted. They are equal if not more

important than the others.

51. The word “welfare” used in Section 13 of the Act

has to be construed literally and must be taken in its

widest sense. The moral and ethical welfare of the child

must also weigh with the court as well as its physical

well-being. Though the provisions of the special statutes

which govern the rights of the parents or guardians may

be taken into consideration, there is nothing which can

stand in the way of the court exercising its parens

patriae jurisdiction arising in such cases.”

31. In a recent judgment in Lahari Sakhamuri v. Sobhan Kodali ¹⁰,

the Courts have delineated the following factors to be kept in view: (1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual.

32. Mr. Shyam Divan, learned Senior Counsel for Smriti argued that the

10 (2019) 7 SCC 311

findings of the Family Court and the High Court that the welfare of the child is in the custody of Perry is based upon factually incorrect reading of evidence and on impermissible principles of law. On the other hand, Mr. Mehta, learned counsel for Perry has supported the findings as recorded by both the courts. The arguments raised are dealt with as under: –

(I) Welfare & Best Interest Principle

(II) Whether, the Financial superiority of a parent can be the decisive factor to handover the custody to such parent.

(III) Whether, the Continued supervisory jurisdiction of Indian Courts is essential for Child’s Welfare.

33. The arguments need to be appreciated keeping in view of the fact that Perry and Smriti, both are natural guardians of the child in that order. In terms of Section 17 of the Act, the Court has to take into consideration the circumstances which are for the welfare of the minor. To determine the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor.

(I) Welfare & Best Interest Principle

The welfare principle is examined in the following manner in view of the judgment of this court in Lahari Sakhamuri.

(a) Maturity and Judgment & Mental Stability

34. As per Perry, his grandfather shifted to Kenya in the year 1935 and 23

with hard work, he established a business empire in Kenya as well as in UK. Even though, the family is settled in Kenya for about 75 years in the year 2007 but still his first preference was to marry an Indian woman which is evident from the fact of publishing an advertisement in the newspaper as also his previous marriage with a woman from Mumbai. Perry pleaded that he and his family are based in Kenya and are exposed to western culture and lifestyle. This shows that Perry and his family have not assimilated in Kenya to Kenyan culture and ethos even after living in Kenya for many years. He looked for a spouse in India, though he himself professes that he is exposed to western culture and lifestyle. This shows that the action of Perry does not match with his written stand. He comes out to be a person who is not sure whether he is Western or an Indian but in no case Kenyan.

35. Perry submitted an affidavit in evidence as Ex.PW-1/A and appeared as PW-1 as his own witness. He had also attached the photographs to show his means and affluence so as to provide all facilities and comforts to his child. He had stated that he is an Industrialist having business establishments all over the world. Perry and his child have dual citizenship of Kenya and UK and enjoys a high social status and respected all over the world. He examined his father, Mansukh Patel as PW-2. He had stated that Smriti is a practicing lawyer. She remains busy and occupied in her work and there is no one else in her family to take care of the child.

36. In cross-examination, Perry denied any matrimonial advertisement given by a Bombay based lawyer Ms. Sejal Chacha on behalf of his family seeking an alliance of a girl based in India. On the other hand, PW2 Mansukh Patel, father of Perry, admitted that Ms. Sejal Chacha is their family friend. In cross examination conducted on 6.5.2017, Perry stated, thus:

“It is wrong to suggest that matrimonial advertisement

Mark-A given in Hindustan Times, New Delhi dated 1st

October, 2006 was given on my behalf or even on behalf

of my family in respect of me. I have already testified

that no matrimonial advertisement was given in respect

of my marriage either by me or by my family or on

behalf of either of us. Ms. Sejal Chacha, Advocate is our

family friend and I have not been actively consulting

with her on all matters. I occasionally mark a copy of my

e-mail conversation with Smriti to Ms. Sejal Chacha,

Advocate.”

37. Smriti tendered her evidence by way of an affidavit Ex.RW1/A and appeared as her own witness as RW-1. She had produced the matrimonial advertisement published in Hindustan Times newspaper on 1.10.2006 as Ex.RW1/1. The contact person in the said matrimonial advertisement was Ms. Sejal Chacha. As per Smriti, this advertisement was on behalf of Perry and his family and they responded to such advertisement, which led to marriage between the parties. The said advertisement reads, thus:

“Overseas Based. Business Tycoon. Only Son.

1974/5’8”, B.B.F. (UK) Seeks Very Beautiful Cultured Girl.

Contact Sejal (Advocate) (022) 26xxxx52, 0981xxxxx67.

E-mail: sejal_xxxxxxx@yahoo.co.in. (Caste no bar)

We are in Delhi Oct, 6, 7, 8”.

(Note: The complete email address and mobile number is not made part of the order so as to protect the privacy of the

individual)

38. Smriti deposed that she met Perry in Hotel Inter-Continental, Barakhamba Road, New Delhi in Room No. 1415 in response to such advertisement. Ms. Sejal Chacha was present in the meeting. She further deposed that her mother was in touch with Ms. Sejal Chacha during the alliance discussion. Perry is still in touch with Ms. Sejal Chacha as his e-mails dated 25.2.2015 (Ex.RW1/DA143) and 9.12.2016 have been marked to her as well. RW-2 Manju Madan, Smriti’s mother also supported her daughter in respect of meetings with Ms. Sejal Chacha and that she was in touch with her when the alliance proposal was being discussed. Perry in his cross examination, as reproduced above, admitted that he occasionally marked a copy of his e-mail conversations with Smriti to Ms. Sejal Chacha, Advocate, though he stated that he was not actively consulting with her on all matters.

39. In this regard, Mr. Mehta relied upon a judgment in Ravinder

Kumar Sharma v. State of Assam & Ors.

¹¹to contend that

newspaper reports are merely hearsay and not proof of facts stated therein. I do not find any merit in the arguments raised. In the said case, the Appeal had arisen out of suit for damages for malicious prosecution. It was found that newspaper reports regarding Central Government decision could not be any basis for

11 (1999) 7 SCC 435

the respondents to stop action under the Assam Foodgrains (Licensing and Control) Order, 1961. It was held that the presumption of genuineness under Section 81 of the Indian Evidence Act, 1872¹² to newspaper reports cannot be treated as proof of the facts stated therein. However, Smriti has not relied upon the newspaper report by any correspondent or any reporter. The reliance is upon paid advertisement appearing in the classified matrimonial column of the Hindustan Times. In other words, Smriti is not relying upon any news published in the newspaper but reliance is on an advertisement on behalf of Perry or his family disclosing purpose of the advertisement and the contact person. The news published is on the basis of a report filed by a correspondent. The primary evidence in such situation would be the reporter himself. But an advertisement is not news based on a report of a newspaper reporter. It is an insertion on the basis of payment made. The fact of advertisement could be rebutted by Perry by producing Sejal as witness to depose that no such advertisement was published with her being the contact person. Still further, the stand of Perry is that his marriage with Smriti was an arranged marriage. There is no other evidence as to how the marriage was “arranged”. Therefore, I find the said judgment is not applicable to the facts of the case as the talks of the matrimonial alliance were finalized on the basis of an advertisement published on behalf of Perry.

40. Perry was earlier married to a woman from Mumbai whom he 12 For short, the ‘Evidence Act’

divorced in the year 2005. Perry, though admitting that his marriage with Smriti was arranged, denied that any advertisement in the matrimonial column was got inserted for him. He however deposed that Ms. Sejal Chacha, Advocate is their family friend and that he had not been actively consulting with her on all matters though occasionally he marks a copy of his e-mail conversation with Smriti to Ms. Sejal Chacha, Advocate. When Smriti appeared in examination-in-chief, she submitted the relevant page of the Hindustan Times but the same was objected to on the ground that the complete newspaper has not been produced. However, no further cross-examination was carried out on Smriti regarding the veracity of the advertisement or that matrimonial alliance between the parties was arranged in some other manner other than the newspaper advertisement published in the Hindustan Times. Also, Perry did not examine Sejal Chacha as a witness to rebut the stand of Smriti that she was the one who was in touch with Smriti and her mother before the matrimonial alliance was finalized as deposed by RW-2 Manju Madan. This only goes to show that Perry is not a truthful person.

41. The child was born on 2.12.2009 at New Delhi. As per Smriti, Perry wanted the child to be born and brought up in India. Perry admitted that he visited India every month before birth of the child and in fact thereafter as well. He has given in writing the schedule of stay of child for two years (2010 & 2011). Such writing shows that the child was to remain in India for seven months; England for one

month; and Kenya for four months. He denied that the schedule Ex. PW1/R1 was written by him voluntarily. He stated that the Schedule Ex.PW1/R1 was written by him on the instructions of his wife. He admitted that the Schedule Ex.PW1/R1 runs into two pages on two sheets in the notebook.

42. It is also admitted by him that such schedule for the year 2010 and 2011 was broadly followed except that the child never went to England and stayed in India instead. I find that the stand of Perry that he has written such schedule on the dictation of Smriti to say the least is preposterous. Perry, a successful businessman and of more than 33 years of age, is not a child to whom the schedule of stay of the child could be dictated. The stand of Smriti is that it was a voluntary schedule written by Perry so as to imbibe Indian values and culture in the child. The fact that it was the voluntary decision of Perry to let the child in India for two years after his birth is also corroborated by the fact that in the application form to seek UK Passport, the residential address of Smriti alone was given. Still further, Perry has not produced any email or any other evidence except his bald statement objecting to the stay and bringing up of child in India. Perry is proved to be consenting of Smriti and child staying in Delhi at least till 26.4.2012. The triggering factor appears to be the messages in the mobile of Perry which Smriti found out on 22.4.2012. Therefore, it cannot be said to be an act of abandonment of matrimonial home by Smriti.

43. It is admitted from the evidence on record that the first birthday of 29

the child was celebrated in Hotel Claridges, New Delhi on 2.12.2010, which was attended to by Perry. The child was admitted in Toddler’s Train Play School in September, 2011 by both parents. The second birthday was celebrated in Defence Colony Club, New Delhi on 2.12.2011, which was again attended by Perry. Thus, at no stage, Perry ever insisted upon the child not to stay in India which fact is apparent from his conduct from the time Smriti came to India till 26.4.2012, when Perry left India.

44. It is thereafter that the child was admitted in Delhi Public School, Mathura Road in 2013, wherein Smriti had got the child admitted to the school as a ‘single parent’. Later, while obtaining Aadhaar card, again, Perry’s name was not mentioned. The Courts below have found such aspect to be acts of parental alienation by Smriti. Even though Perry’s name was not mentioned in the admission form while seeking admission of the child to the school or in the Aadhaar card, the fact remains that Perry continued to avail visitation rights all throughout. It cannot be even remotely inferred that Perry or his parents were alienated from the child in any manner in view of the Counsellor’s report dated 21.7.2016. Also, it is Perry who did not continue with Mediation. Similarly, the stand against visitations to Perry was in Court to convey her concerns. There is no instance where Smriti violated any direction of the Court granting visitation rights to Perry.

45. As per Perry, he had booked return tickets for the child and Smriti 30

for 6.6.2012 but before that date, Smriti had filed suit for injunction on 26.5.2012 wherein a restraint order was granted on 28.5.2012. In that suit itself, Smriti had averred about the marital infidelity. Smriti had invoked the jurisdiction of the Court on the allegations that Perry had threatened to take the child forcibly away from her. Smriti had lodged a police complaint on 5.5.2012 that she has received a phone call from UK number of Perry on 5.5.2012 at 5:12 pm and later at 5:25 pm. She felt intimidated by his tone as he had used violent language and asked her to send the child to Kenya immediately. Perry had denied such allegations but the fact remains that the dispute had arisen between the parties, thus Smriti could be justified in invoking the jurisdiction of the Court to protect the custody of the child with her.

46. The allegation of Smriti that Perry is racist has to be examined in view of this background that even though Perry is a 3^rd generation resident of Kenya, he is still not looking for a matrimonial alliance with a local woman. If he has a western lifestyle as professed by him, then he should be looking for matrimonial alliance from the western world. Maybe he believes that Indian women are gullible who can be allured with the glamour of money which he has made. Many in India believe that the grass is greener on the other side of India. The mansions and the other possessions are shown to women to attract them to marry. At least two of Indian women have fallen trap to the web of this rich Non-Resident Indian. It is this trap which led the woman from Mumbai and also Smriti to fall

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