SMRITI MADAN KANSAGRA versus PERRY KANSAGRA

Citation: [2021] 10 S.C.R. 742 · Decided: 07-10-2021 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 10 S.C.R.
[2021] 10 S.C.R. 742
742
SMRITI MADAN KANSAGRA
v.
PERRY KANSAGRA
(Miscellaneous Application No.1167 of 2021)
In
(Civil Appeal No.3559 of 2020)
OCTOBER 07, 2021
[UDAY UMESH LALIT, HEMANT GUPTA AND
AJAY RASTOGI, JJ.]
Guardian and Wards Act, 1890 – Custody of minor child –
Obtained by fraud – Contempt of Court – Guardianship petition
filed by father (of Indian origin) settled in Kenya for custody of the
minor child before Family Court, New Delhi – Allowed – Affirmed
by High Court – Undertaking given by him to submit to the
jurisdiction of Indian Courts – High Court’s order challenged by
mother – Appeal dismissed by majority judgment of Supreme Court
dtd. 28.10.20 – Custody of the child handed over to the father subject
to his obtaining mirror order from the concerned court in Nairobi
reflecting the directions contained in the said judgment –
Undertaking filed to abide by the directions contained in the majority
decision – Originating Summons filed by him in the High Court of
Kenya at Nairobi seeking registration of the judgment dtd.28.10.20
and for obtaining mirror order – Registration granted vide order
dtd.09.11.20 – Mother filed M.A seeking modification of certain
directions issued in paragraph 20 of the majority judgment –
Application disposed of vide order dtd. 08.12.20 – Undertaking
given by the father in Supreme Court to abide by the said order –
Child taken to Kenya – Vacation access denied to the mother –
Father also filed petition in Kenya inter alia challenging the
jurisdiction of the Indian Courts – Held: At no stage the father
brought the development to the notice of Supreme Court that the
Summons moved by him seeking registration of the judgment
dtd.28.10.20 was subsequently dismissed by the High Court of
Kenya at Nairobi – It was only on the basis of the solemn
undertakings given by him and the order dtd.09.11.20 passed by
the High Court of Kenya at Nairobi which was projected to be a
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mirror order in compliance of the directions issued by this Court,
that the custody of the child was directed to be handed over to him
– Further, order dtd.08.12.20, made it clear that the undertaking
given to the High Court would continue to be operative, in addition
to the undertakings given to this Court – However, such undertakings
were not only flagrantly violated but a stand is now taken challenging
the very jurisdiction of the Indian Courts – Orders obtained by
playing fraud upon the Court – A party approaching the Court
must come with clean hands, more so in child custody matters –
Non-disclosure of material facts by the father at relevant junctures
shows that he approached the Indian Courts with unclean hands –
Judgment dtd.28.10.20 and the order dtd.08.12.20 recalled –
Guardianship Petition filed by the father is dismissed – Custody of
the child with him is illegal and void ab initio – Notice for contempt
issued – Further directions issued.
Guardian and Wards Act, 1890 – Parens patriae jurisdiction –
Held: Wherever the custody of a minor is a matter of dispute, the
primary custody of the minor in parens patriae jurisdiction is with
the Court which may then hand over the custody to the person who
would be the most suitable – Any action initiated to obtain such
custody from the Court with fraudulent conduct and design would
be a fraud on the process of the Court.
Disposing of the miscellaneous application and connected
interim applications, the Court
HELD: 1.1 The documents and the developments show:
(i) ‘P’ (the father) had given an unequivocal undertaking to
the High Court that he would submit to the jurisdiction of the
Indian Courts. He had also given a solemn undertaking to this
Court.
(ii) In response to a specific submission raised in
Miscellaneous Application No.2140 of 2020 (quoted in paragraph
16), it was submitted by ‘P’ that he had subjected himself to the
jurisdiction of this Court. While dealing with the rival submissions
in the Order dated 8.12.2020, this Court made it clear that the
undertaking given by ‘P’ to the High Court would continue to be
operative, in addition to the undertaking given to this Court.
SMRITI MADAN KANSAGRA v. PERRY KANSAGRA
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SUPREME COURT REPORTS
[2021] 10 S.C.R.
(iii) The Judgment dated 28.10.2020 had called upon ‘P’ to
obtain a ‘Mirror Order’ from the concerned Court in Nairobi to
reflect the directions contained in the Judgment dated
28.10.2020. Thereafter, the Order dated 9.11.20

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