2020 INSC 0546
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
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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.
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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
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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:
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“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. 
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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. 
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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
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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
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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
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(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
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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.
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(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
12

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
13

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
14

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
15

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
16

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
17

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.
18

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,
19

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
20

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.
21

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
22

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
23

their   matrimonial   life.   In   Rosy   Jacob   v.   Jacob   A   Chakarmakkal 1
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 Nagpal 3
 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.
24

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   Singh 4
,   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 Kundu 5
  set 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.
25

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
26

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.
27

(b) During   the   mediation   proceedings,   t he   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.
T he   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
28

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
29

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.
30

(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.
32

(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
33

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
34

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.
35

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.”
36

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
37

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
38

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 Gorantyal 7
 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.
39

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,
40

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
41

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.
42

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
43

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.
44

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.
45

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
46

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.
47

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;
(c) Perry   will   apply   and   obtain   a   fresh   Kenyan   passport   for
Aditya,   Smriti   will   provide   full   co­operation,   and   not   cause
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
48

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
49

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
appellant 1
  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”.
1

parties   was   solemnized   on   29.7.2007   at   New   Delhi.   A   male   child
Aditya Vikram Kansagra 2
 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   respondent 3
  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 injunction 4
 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, 1860 5
 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”.
2

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, s he 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
3

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
4

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
5

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
6

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
7

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.
8

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)
9

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
10

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
11

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
12

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
13

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
14

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:
15

“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
16

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
17

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
18

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,   1908 6
  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’
19

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
20

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	
Nagpal	9
  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
21

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
22

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.
24

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)
25

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.	11  to   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
26

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,   1872 12
  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’
27

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
28

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
31

in  the   web  of   Perry.    It   appears  that  the  only  purpose   of   marrying
an   Indian   woman   is   to   use   her   for   procreation.     This   observation
gets   supports   from   the   statement   of   Smriti   that   from   the   day   she
conceived, the reaction of the family changed. Although they were
happy   with   the   birth   of   the   child   as   an   heir   apparent   but   the
position of Smriti was that of a caretaker of the child and not that
of   a   wife   who,   according   to   Indian   customs,   entitled   to   share   life
jointly with her husband.   She was used only to procreate child for
Kansagra family.
47. The   allegation   of   slitting   of   wrists   by   Smriti   was   denied   by   her   in
evidence   when   she   deposed   that   they   were   old   scars.   The   Court
have   disbelieved   such   part   of   statement.       During   the   course   of
hearing,  Smriti   has   filed  notes  for  arguments   wherein,  it   has   been
stated   that   the   scar   on   the   left   hand   was   the   result   of   an   injury
when she was around 11-12 years old in or around the year 1987.
The accident occurred at her home in Shimla when she accidentally
banged into a wooden door with a glass pane.  The injury had to be
treated   with   about   7-8   stitches.     The   scar   occurred   many   years
before   marriage   and   appears   to   be   visible   in   one   of   the   wedding
photographs,   the   copy   of   which   is   attached   with   the   Notes   for
Arguments submitted by her.   She stated that the faint scar on the
right   hand   was   the   result   of   a   glass   bangle   breaking,   which   also
happened   many   years   before   marriage.     She   is   not   even   able   to
recall the incident which caused the injury as it is a very faint scar
and   barely   visible.     However,   the   photograph   does   not   show   the
32

scar.     Perry   has   not   asserted   the   date,   time   or   place   of   so-called
attempt   to   suicide   nor   has   he   examined   any   Psychologist   or   a
Doctor to determine the period of injury so received.  
48. Therefore, I find that the plea to discredit Smriti was raised without
any legal or medical evidence.   In fact, the Family Court discarded
the theory of suicidal tendencies and the evidence of self-inflicting
injury but the High Court reversed those findings without any good
or   reasonable   ground.     The   parties   are   in   Court   since   2012   and   in
almost   8   years   of   litigation   there   has   been   never   any   incident   or
allegation of self-harm or harm to the child on Smriti’s part. 
49. Smriti   also   averred   that   Perry   travels   for   18   days   in   a   month
outside  Kenya.   In response to such assertion, Perry in the  written
statement has evasively denied the same however it has not been
disclosed as to for how many days he actually travels. In terms of
Order VIII Rule 3 of CPC, it shall not be sufficient for the defendant
to   deny   generally   the   grounds   alleged   by   the   plaintiff,   but   the
defendant   must   deal   specifically   with   each   allegation   of   fact   of
which he does not admit the truth.   Reference will be made to the
judgment  of  this   Court  in  Badat   and   Co.   Bombay   v.	  East   India	
Trading   Co.	13
,	  wherein,   this   Court   considered   the   provisions   of
Order VIII, Rule 3, Rule 4 and Rule 5 of the Code and held as under:
“ 11.  xx xx xx
These   three   rules   form   an   integrated   code   dealing   with
the   manner   in   which   allegations   of   fact   in   the   plaint
should be traversed and the legal consequences flowing
13   AIR 1964 SC 538
33

from   its   non-compliance.   The   written   statement   must
deal specifically with each allegation of fact in the plaint
and   when   a   defendant   denies   any   such   fact,   he   must
not  do so evasively, but  answer the point of substance.
If his denial of a fact is not specific but evasive, the said
fact shall be taken to be admitted. In such an event, the
admission   itself   being   proof,   no   other   proof   is
necessary……” 
50. A perusal of the evasive reply in the replication filed by him, which
is part of pleadings in terms of Order VIII Rule 9 of the Code, shall
be treated as admission.
   
51. Perry  was   asked to   produce   his  Passport  for  the   period   2009-2012
in   his   cross-examination.   It   was   stated   that   his   old   Passport   was
taken   by   the   Authorities   at   the   time   of   renewal   of   Passport   in   the
year 2015. He denied the suggestion that the details of his visits as
indicated in Para 31 of his affidavit were unreliable. He stated that
it   was   wrong   to   suggest   that   he   spent   time   in   attending   his
business   activities   in   Mumbai   and   Rajkot   on   his   visits   to   India.     It
was   admitted   by   him   that   he   along   with   Smriti   and   child   came   to
India   on   10.3.2012.     He   stayed   for   9-10   days   whereas   Smriti   and
the child remained in India with return tickets booked for 6.6.2012.
He has disclosed his working hours on a working day but the dates
of travel have been withheld from the Court.  Perry did not produce
the best evidence and submitted that the passport has been taken
by   the   Authorities   while   issuing   the   new   passport.     It   has   to   be
noted   that   even   after   renewal   of   the   passport,   the   old   passport   is
returned   to   the   holder   as   the   passport   is   a   valuable   document,
having   travel   permissions   etc.     The   days   of   travel   outside   Kenya
34

was within his knowledge alone, therefore, in terms of Section 106
of the Evidence Act, the onus was on Perry to disclose his dates of
travel  in  a   month   to   rebut   the   stand   of   Smriti.     It   is   reasonable   to
infer that Perry needs to travel abroad quite frequently.  
52. Perry   having   not   cross-examined   Smriti   on   the   aspect   of
matrimonial   advertisement   published;   slitting   of   wrists   by   Smriti
and   of   his   travels   for   more   than   18   days   in   month   or   even   the
explicit messages received by Perry on his mobile, shall be deemed
to   be   accepted   by   him.   This   Court   in   a   Judgment   reported   asArvind   Singh
  v.  	State   of   Maharashtra	14   referred   to   rule   of
evidence   that   it   is   absolutely   essential   to   the   proper   conduct   of   a
cause,   where   it   is   intended   to   suggest   that   a   witness   if   not
speaking   the   truth   on   a   particular   point,   to   direct   his   attention   to
the fact by some  questions  put in cross-examination showing that
imputation   is   intended   to   be   made,   and   not   to   take   his   evidence
and pass it by as a matter altogether unchallenged. This Court held
as under:
“ 57.   The   House   of   Lords   in   a   judgment   reported
as  	
Browne   v.   Dunn,   (1894)   VI   The   Reports   (67)
HL,   considered   the   principles   of   appreciation   of
evidence.   Lord   Chancellor   Herschell,   held   that   it   is
absolutely   essential   to   the   proper   conduct   of   a   cause,
where   it   is   intended   to   suggest   that   a   witness   if   not
speaking   the   truth   on   a   particular   point,   to   direct   his
attention   to   the   fact   by   some   questions   put   in   cross-
examination   showing   that   imputation   is   intended   to   be
made, and not  to take his evidence and pass it by as  a
matter altogether unchallenged.  It was held as under:
“Now,   my   Lords,   I   cannot   help   saying   that   it
seems   to   me   to   be   absolutely   essential   to   the
14  2020 SCC OnLine SC 400
35

proper   conduct   of   a   cause,   where   it   is   intended
to   suggest   that   a   witness   is   not   speaking   the
truth on a particular point, to direct his attention
to   the   fact   by   some   questions   put   in
crossexamination   showing   that   that   imputation
is   intended   to   be   made,   and   not   to   take   his
evidence   and   pass   it   by   as   a   matter   altogether
unchallenged,   and   then,   when   it   is   impossible
for   him   to   explain,   as   perhaps   he   might   have
been  able  to   do   if   such   questions   had  been   put
to him, the circumstances  which it is suggested
indicate   that   the   story   he   tells   ought   not   to   be
believed, to argue that he is a witness unworthy
of   credit.   My   Lords,   I   have   always   understood
that if you intend to impeach a witness you are
bound,   whilst   he   is   in   the   box,   to   give   him   an
opportunity   of   making   any   explanation   which   is
open to him; and, as it seems to me, that is not
only   a   rule   of   professional   practice   in   the
conduct   of   a   case,   but   is   essential   to   fair   play
and   fair   dealing   with   witnesses.   Sometimes
reflections   have   been   made   upon   excessive
cross-examination of witnesses, and it has bene
complained of as undue; but it seems to me that
a   cross-examination   of   a   witness   which   errs   in
the   direction   of   excess   may   be   far   more   fair   to
him   than   to   leave   him   without   cross-
examination,  and   afterwards   to   suggest   that   he
is not a witness of truth, I mean upon a point on
which   it   is   not   otherwise   perfectly   clear   that   he
has   had   full   notice   beforehand   that   there   is   an
intention   to   impeach   the   credibility   of   the   story
which he is telling.”
xx xx xx
63.    Thus, the prosecution is required to bring home the
guilt beyond reasonable doubt. It is open to an accused
to   raise   such   reasonable   doubt   by   cross-examination   of
the   prosecution   witnesses   to   discredit   such   witness   in
respect of truthfulness and veracity. However, where the
statement   of   prosecution   witnesses   cannot   be   doubted
on   the   basis   of   the   touchstone   of   truthfulness,
contradictions   and   inconsistencies,   and  the   accused	
wants   to   assert   any   particular   fact   which   cannot   be
made   out   from   the   prosecution   evidence,   it   is
incumbent   upon   the   accused   to   cross   examine   the
relevant  witnesses  to  that  extent. The witness,  in  order
36

to   impeach   the   truthfulness   of   his   statement,   must   be
cross-examined  to  seek  any  explanation  in respect  of  a
version,   which   accused   wants   to   rely   upon   rather   to
raise an argument at the trial or appellate stage to infer
a fact when the opportunity given was not availed of as
part of fair play while appreciating the statement of the
witnesses. Thus, we hold that a party intending to bring
evidence   to   impeach   or   contradict   the   testimony   of   a
witness   must   give   an   opportunity   to   explain   or   answer
when the witness is in the witness box” .	
(Emphasis supplied) 53. The rule of evidence in criminal trial is beyond reasonable doubt to
convict an accused but in civil cases is to prove a fact. The Rule of
evidence is much stricter in Criminal trial that the onus of proof in
Civil   Cases.   In   the   present   case,   attention   of   Perry   was   drawn   to
various   aspects   mentioned   earlier   but   he   had   not   cross   examined
Smriti   on   these   material   aspects   leading   to   admission   of   facts   as
deposed by Smriti.
54. A   reading   of   the   plaint   of   the   Guardianship   petition   shows   that
Perry relies upon availability of his parents in Kenya to take care of
the child and, on the other hand, stress on the physical condition of
Smriti’s mother to look after the child. I find that the entire basis to
seek appointment as guardian of the child is the availability of his
parents   in   Kenya   and   the   physical   condition   of   Smriti’s   mother.
The   entire   basis   is   incorrect   as   in   the   presence   of   parents   of   the
child, the grandparents are not the determining factor to appoint a
guardian.   The   question   of   where   does   the   welfare   of   the   child   lie
thus   narrows  down  to   the  mother   who   has   stopped   practicing   law
to   nurture   child   as   against   the   father   who   travels   quite
substantially every month.   In the  absence  of the  father, the  child
37

will   be   in   the   custody   of   nannies,   maids   and   servants.     The
grandparents would not be able to take care of the growing needs
of   a   young   child.     All   things   being   equal,   the   presence   of
grandparents   can   tilt   in   balance   but   where   a   mother   who   is
available 24/7 for guiding, caring and nurturing a growing child as
against   a   father   who   needs   to   travel   outside   his   normal   place   of
stay   frequently,   I   find   that   the   mother   is   more   suitable   in   whose
hands the welfare of the child is secured.  
55. It is made clear that I am not commenting upon the allegations of
cruelty   or   lack   of   conjugal   rights   as   it   is   a   matter   of   trial   in   the
matrimonial proceedings to avoid any prejudice to the rights of the
parties in the said case.
56. The argument of Mr. Mehta that the child is about to enter into his
teens,   therefore,   he   will   be   more   comfortable   with   the   father,   is
based  upon assumptions.    The  requirement of a growing child can
be   better   understood   by   the   mother   who   has   the   opportunity   to
have   supervision   over   the   child   at   all   times   and   in   this   case   from
his  birth.     Further,  the   conduct  of  Perry  and  his  parents   is  inclined
towards   pampering   the   child   inasmuch   as   an   iPhone   was   given   to
the child when he was of six years of age.  Perry and/ or his parents
have pampered the child by giving him 4-5 iPads.   It is unrebutted
testimony led by Smriti. She has also deposed that child had once
broken one newly purchased iPad but Perry bought another iPad for
the   child   immediately   without   any   counselling   to   value   the   things
38

purchased.     These   are   instances   which   suggests   pampering   the
child.  From the controlled and supervised household of the mother,
if   the   custody   is   given   to   the   father,   the   sudden   exposure   to   the
materialistic things have the potency to derail the studies and well-
being of the growing child.    
57. It   is   also   to   be   considered   that   Perry   is   facing   a   charge   of
manslaughter   on   48   counts.     Though   Perry   was   acquitted   by   the
first   Court   but   the   High   Court   has   set   aside   the   order   of   acquittal
and   ordered   re-trial.     The   matter,   as   argued   by   Perry,   is   currently
pending before the Superior Court.  Maybe, Perry and his family are
involved   in   philanthropic   work   in   Kenya   but   the   threat   of   criminal
prosecution is writ large over Perry.  In these circumstances, putting
the   child   to   the   trauma   of   trial   in   Kenya   would   not   be   in   his   best
interests   and   will   have   adverse   psychological   impact   on   him.
Sharing a bond with the father for some time where the father and
grandfather occasionally visit and pamper the child is different than
staying   in   a   wholly   new   environment   as   it   is   a   difficult
transformation   for   the   child   of   a   young   age   with   new   fellow
students and teachers.58.
Perry has relied upon the recordings made by him on 7.1.2015 and
8.1.2015 prior to filing of his affidavit Ex. PW-1 on 23.1.2015. Perry
had also produced transcripts wherein the child purportedly stated
that Smriti has told him that there are witches in Kenya. However,
the said transcripts were not put to Smriti or her mother when they
39

appeared   as   witnesses.   Smriti   was   not   confronted   either   with   the
CDs or the transcripts to elucidate response from Smriti. 
59. I find that creation of recording is nothing but an attempt to create
evidence using child of almost six years of age.     One recording is
dated   7.1.2015   (Ex.PW1/5)   which   has   a   heading   “India   Visitation
DVD no. 09 Video clip no. 328, Date: 07 Jan 2015, Time: 17:33” and
another   recording   is   dated   8.1.2015   which   has   a   heading   “India
Visitation DVD no. 09 Video clip no. 330, Date: 08 Jan 2015, Time:
15:31”.   It only shows that  the recording on the  DVDs  was only to
fabricate the evidence against Smriti. It shows that Perry can stoop
so   low   so   as   to   create   evidence   by   using   an   innocent   child   of   six
years.     It   appears   that   the   first   DVD   is   9 th
  video   clip   recorded   on
7.1.2015.  Maybe, the other earlier 8 video clips were not helpful to
Perry.  Similarly, video clip no. 330 recorded on 8.1.2015 also shows
that   there   were   intervening   video   clips   as   well   which   have   been
withheld   from   the   Court.     Such   production   of   the   evidence   to   say
the least shows the mental state of mind of Perry which disentitles
him from the guardianship of the child. Still further, Smriti has not
been confronted with such recordings so as to give any opportunity
to explain the utterances of the child.
60. Another argument was raised by Mr. Mehta that the child is staying
in India only on account of pending court cases.   I do not find that
any benefit can be granted to Perry on account of time gap due to
pending   court   cases.     The   fact   is   that   the   child   has   grown   in   the
40

last eight years during the pendency of the proceedings. The child
is   at   such   a   stage   in   life   where   he   will   soon   undergo   his
psychological   changes.     Though,   ideally   both   the   parents   should
nurture   the   child,   but   the   next   best   solution   is   the   exclusive
custody with Smriti and liberal visitation rights to Perry.
61. Another   factor   which   cannot   be   lost   sight   of   that   there   is   nothing
which prohibits Perry from marrying again.  If that is to happen, the
child   would   be   left   to   be   brought   up   by   the   house   help   or
grandparents   or   by   step-mother   as   against   Smriti   who   is   bringing
up the child in India.  Smriti is possessed of substantial means as is
required   from   an   upper   middle-class   family.     Perry   may   be   super
rich   but   keeping   in   view   his   professional   commitments   and   his
adventurous   background,   I   find   that   custody   of   the   child   should
remain with Smriti.  The child should be given liberty to choose his
destination after he comes out of age. Since, it was Perry who has
invoked the jurisdiction of the Family Court to seek his appointment
as   the   guardian,   the   onus   of   proof   that   the   welfare   of   minor   rests
with   him   is   on   him.     I   find   that   Perry   has   failed   to   discharge   such
onus.
62. I   find   that   Smriti   has   no   disability   so   as   to   take   custody   from   her.
She   is   well   educated,   was   a   practicing   Advocate   who   left   her   law
practice  to nurture  her child.   Therefore, she has the  maturity and
sense   of   judgment.     She   has   mental   stability   as   even   though   the
parties   are   at   loggerheads,   the   child   has   a   cordial   relation   with
Perry.     Therefore,   I   find   that   there   is   no   valid   plausible   reason   to
41

take custody of Child from Smriti to hand over to Perry as a chattel.
(b) Ability to provide access to Schools
63. Delhi   Public   School   is   one   of   the   prestigious   schools   in   National
Capital Region.  The child is studying in the said school since 2013.
I   have   no   doubt   that   there   are   good   schools   in   Kenya   as   well
however the education of the child in Delhi Public School cannot be
said to be  in any way inferior to the  education in Kenya. At times,
we  tend to  believe  that other countries  are  better  in every  sphere
as  compared  to India, though it  is  true.  Therefore,  shifting  of  child
at   this   stage   of   life   would   be   counter-productive   to   the   growth   of
child.  
64. Mr.   Mehta   raised   an   argument   that   the   child   was   not   regular   in
School for the years 2015-16 and 2016-17.  The child was 4-5 years
of age back then.   It was not any high academic session which the
child was deprived of.  The absence of the child from the school for
some   days   at   such   a   young   age   is   wholly   inconsequential   as   it   is
basically   a   play   time   for   the   children   and   not   a   time   for   serious
studies.
(c) Moral Character
65. There   is   no   allegation   or   evidence   against   Smriti   regarding   her
character   whereas   there   is   evidence   of   relationship   of   Perry   with
another   woman.       There   is   allegation   of   liaison   with   other   woman
during the subsistence of marriage. Perry was confronted with the
subject matter of the seven messages (Mark B) but he denied the
42

same.   The   five   SMSs   were   received   by   Perry   on   2.4.2012   and
another two on 4.4.2012. The copies of such messages confronted
to Perry has the mobile number of Perry and of Sonia.  Admittedly,
the parties came to India on 10.3.2012.  Perry left India after some
days and again came back on 21.4.2012.   It is then, as alleged by
Smriti,   that   she   stumbled   upon   these   explicit   messages   on   the
Blackberry   phone   with   Vodafone   as   a   service   provider   of   Perry
which   she   forwarded   to   her   mobile   on   22.4.2012.     Smriti   has
produced   such   messages   forwarded   to   her   mobile   phone   on   the
same day between 1:52 am to 1:56 am on 22.4.2012. It was then
forwarded   to   her   e-mail   account   on   5.5.2012   and   6.5.2012.   The
date format is MMDDYYYY.  It has not been disputed that the mobile
number   mentioned   in   such   messages   and   e-mails   from   which   the
messages were received and/ or forwarded is used by Perry. 
66. Perry   denied   the   suggestion   that   in   April,   2012,   he   showed   no
interest in talking to or interacting with his wife and child and was
busy   in   chatting/texting   on   phone   throughout.     He   denied   the
suggestion   that   he   was   having   extramarital   affair   with   Sonia.     He
stated   that   it   was   wrong   to   suggest   that   he   had   denied   any
conjugal   relations   with   his   wife   since   2010.   He   denied   the
suggestion that in April, 2012, his wife came across text messages
between   him   and   Sonia   and   also   denied   that   the   text   messages
contained   in   seven   sheets   (Mark-B)   relate   to   him.     He   stated   that
he did not know anyone by the name Sonia from Mozambique.
43

67. Perry has denied any connection with Ms. Sonia. In the suggestions
given to Smriti, the veracity of messages which were forwarded to
an   e-mail   account   of   Smriti   has   not   been   disputed.   Once   the
messages were in the mobile of Smriti, the print-out could be taken
by   sending   the   same   on   an   e-mail   or   by   taking   screenshots   and
then   by   sending   it   to   e-mail   or   directly   from   a   compatible   printer.
Maybe, some people are not user friendly to take screenshots and
then to take print-out but Smriti adopted the second alternative of
sending the messages on her e-mail ID which she did on 5.5.2012
and 6.5.2012. The extract from one of the printouts of e-mail reads
as under:
“Fw: ******
Smriti Madan Kansagra <smriti…..@hotmail.com>
5/6/2012 5:05 AM
To: smritixxxx@hotmail.com <smritixxxx@hotmail.com>
--------SMS
From: +91981xxxx433
Received: 22 Apr 2012 01:52
Subject: Morning ******
*************
Sent on my BlackBerry® from Vodafone ”(Note:   The   complete   email   address,   mobile   number   and   the
message   is   not   made   part   of   the   order   so   as   to   protect   the
privacy of the parties.)
 
68. Such   messages   forwarded   to   her   email   account   are   supported   by
an   affidavit   of   Smriti   under   Section   65B   of   the   Evidence   Act.
Though, it was argued by Mr. Mehta that the affidavit is not proper
in terms of requirement of Section 65B of the Evidence Act but the
44

fact remains that the transfer of messages was firstly made to the
mobile   device   of   Smriti   and   later   to   her   e-mail.     Such   affidavit
satisfies   the   requirement   of  law   as   has   been  held   by  this  Court   inArjun   Panditrao   Khotkar  
v.  	Kailash   Kushanrao   Gorantyal	15
decided on 14.7.2020.
“65.    It may also be seen that the person who gives this
certificate   can   be   anyone   out   of   several   persons   who
occupy   a   ‘responsible   official  position’   in  relation  to   the
operation of the relevant device, as also the person who
may   otherwise   be   in   the   ‘management   of   relevant
activities’   spoken   of   in   Sub-section   (4)   of   Section   65B.
Considering that such certificate may also be given long
after   the   electronic   record   has   actually   been   produced
by the computer, Section 65B(4) makes it clear that it is
sufficient that such person gives the requisite certificate
to the “best of his knowledge and belief” (Obviously, the
word   “and”   between   knowledge   and   belief   in   Section
65B(4) must be read as “or”, as a person cannot testify
to   the   best   of   his   knowledge  	
and   belief   at   the   same
time)”.
69. The   messages   sent   to   Perry   may   not   be   proved   by   Smriti   to   be
from   Sonia,   a   woman   from   Mozambique.   But   in   terms   of   Section
106   of   the   Evidence   Act,   the   fact   whether   such   messages   were
received by Perry or not in his mobile phone, was within his means
of   knowledge.   Thus,   the   burden   of   disproving   such   fact   was   upon
Perry.  He failed to rebut the evidence led by Smriti. The necessary
consequence   is   that   the   e-mails   showing   explicit   sexual   talks
between   Perry   and   another   woman   were   duly   proved.     The   fact
that   such   messages   were   found   in   the   mobile   used   by   Perry   are
indicative of his adventures outside marriage.
15  2020 SCC Online SC 571
45

70. I find that both the Courts have misread such printouts to hold that
they are not proved as Perry was not in India in the month of May,
2012.   The   Courts   overlooked   the   fact   that   the   messages   were
forwarded   by   Smriti   to   her   mobile   on   22.4.2012   when   admittedly
Perry  was   staying  with  Smriti   at  her   house   in  Defence   Colony.    He
left   India   only   on   26.4.2012.     The   messages   were   sent   from   the
Indian   mobile   number   used   by   Perry.     Perry   has   not   given   any
explanation how the messages came to be delivered to his phone.
The denial of knowing Ms. Sonia is of no consequence as it was for
him to explain how the  messages were  in his  mobile.   Therefore, I
have  no hesitation to hold that the  conduct of Perry in April, 2012
in   reference   to   the   exchange   of   messages   with   a   woman   are
enough to create bitterness in the relationship of the parties.
71. I   do   not   find   any   merit   in   the   argument   raised   by   Mr.   Mehta   that
Smriti has  been taking contradictory stand about these  messages.
It is  argued that no reference  was  made  to these  messages  in the
police complaint made on 5.5.2012 or in the suit for injunction filed
on 26.5.2012. Even in her Affidavit in evidence dated 3.7.2017, she
has deposed that Perry has received these messages on 22.4.2012,
which   she   immediately   forwarded   to   her   email   account.   In   the
written   submissions   submitted   before   this   Court,   it   was   submitted
that   the   messages   were   dated   22.4.2012,   which   were   emailed   to
her   account   in   May   2012.   It   is   also   argued   that   the   Certificate
under Section 65B of the Evidence Act is not proper as she has only
averred that messages are the same as the content of her Inbox of
46

email account.
72. I do not find any merit in the arguments raised that Smriti has not
mentioned   about   these   messages   in   the   police   complaint   filed   by
her. The  police  complaint was regarding the alleged threats stated
to be given by Perry to take Child from her custody. The messages
were   not   expected   to   part   of   such   information.   Secondly,   in   the
Plaint   (Para   23),   she   has   made   reference   to   messages   though
without   further   details.   The   subject   matter   of   suit   was   injunction
regarding   custody   of   child   and   not   the  inter-se   marital   disputes.
The requirement of Order VI, Rule 2 of the Code is to give “material
facts” on which party relies for his claim. In the Suit for injunction,
the detailed mention of these messages was not warranted. Firstly,
it was suit for injunction for limited relief against forcible custody of
Child   and   not   divorce   petition,   or   maintenance   application   or
custody   proceedings.     Further,   her   affidavit   in   evidence   submitted
on 3.7.2017 is not being read correctly. She had stated that in the
month   of   April,   2012,   when   Perry   was   visiting   Delhi,   she   came
across   certain   messages,   which   she   immediately   emailed   to   her
email account. There is no cross examination on the veracity of the
messages, as mentioned in earlier paras of this order. Still further,
she   has   not   stated   that   the   messages   were   dated   22.4.2012.   The
entire statement has to be read. The word “immediately” is an act
of   forwarding   the   messages   to   her   email   account   and   not   in   the
context   of   receipt   of   the   messages.   The   written   submissions
submitted   is   not   an   evidence   on   oath,   prepared   by   the   Advocates
47

engaged by her. The written submission cannot be used to contract
a statement made on oath. I do not find any merit in the argument
that Certificate on affidavit given is not proper. The fact is that she
had limited access to mobile of Perry only to forward the messages
to   her   email   account.   She   cannot   be   expected   to   do   impossible
thing,   to   verify   the   contents   of   messages   on   the   mobile   of   Perry.
This   Court   in  Arjun   Panditrao   Khotkar   held   that   Section   65B(4)
makes   it   clear   that   it   is   sufficient   that   such   person   gives   the
requisite certificate to the best of his knowledge or belief.  
73. Still   further,   Perry   has   not   produced   any   of   his   house   staff   either
from   Kenya   or   India   or   his   cousin   in   USA   or   UK   who   could   depose
about   the   behaviour   or   conduct   of   Smriti.   Perry   has   levelled
unsubstantiated allegations against Smriti.
74. It   may   be   further   stated   that   it   is   categorical   statement   of   Smriti
that there was no restitution of conjugal relationship since the year
2010.   Such fact was sought to be rebutted by Mr. Mehta, learned
counsel   appearing   on   behalf   of   Perry,   on   the   basis   of   an   affidavit
filed   in   support   of   the   petition   for   dissolution   of   marriage   wherein
she   has   sworn   that   the   parties   have   been   living   separately   since
26.4.2012   and   there   has   been   no   resumption   of   cohabitation
and/or   conjugal   rights   since   26.4.2012.     Such   argument   of   Mr.
Mehta   was   rebutted   by   Mr.   Shyam   Divan,   learned   senior   counsel
appearing on behalf of Smriti on the ground that such affidavit was
in   support   of   the   petition   of   dissolution   of   marriage.   Smriti   has
48

categorically   stated   in   the   petition   about   absence   of   conjugal
relationship since 2010 after the birth of the child and the fact that
Perry   never   intended   to   work   in   order   to   have   a   successful   and
happy   married   life.     Perry   got   married   to   her   for   the   purpose   of
procreation   and   her   utility   after   giving   birth   to   child   was   to   only
take   care   of   him.     The   stand   of   Smriti   cannot   be   brushed   aside,
though   in   the   present   proceedings   such   stand   need   not   be
examined   as   the   primary   question   before   us   is   as   to   where   the
welfare of the child lies. 
(d) Ability to provide continuing involvement in the community
75. Smriti has left her active law practice to nurture her child.  She has
relatives in Delhi and also in many other cities.  She is continuously
involved   in   providing   healthy   and   holistic   upbringing   of   the   child.
Though Perry has been regularly visiting India every month to visit
the   child,   but   that   does   not   entitle   him   to   the   guardianship   of   the
child   as   he   is   not   a   truthful   person.     He   has   the   audacity   to   deny
the   marriage   proposed   initially   through   a   matrimonial
advertisement.     He   has   not   led   evidence   in   respect   of   sexually
explicit   messages   received   by   him   from   another   woman.   He   has
been found to pamper child which has the potential of derailing the
education and further upbringing in the crucial years of teens.  
(e)   Relationship with the child and Parental alienation
76. When   the   matter   was   pending   in   appeal   before   the   High   Court
against   an   interim   order   of   the   Family   Court   in   Guardianship
49

proceedings, the Court appointed Ms.  Sadhana Ramachandran as a
Mediator   by   its   order   dated   6.5.2016.   The   Child   was   produced
before   the   Court   on   11.5.2016   after   he   had   interaction   with   the
learned Mediator and Ms. Swati Shah, Child Counsellor.     The Court
in its order observed as under: 
“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. ”
77. Ms. Swati Shah, the Counsellor who interacted with the child when
he   was   7   years   old,   gave   report   on   21.7.2016.     She   reported   as
under:
“Aditya,   son   of   Perry   and   Smriti   is   almost   seven   years
old.     He   studies   in   the   second   standard   at   one   of   the
reputed schools in Delhi.   Two sessions were held in the
children’s room of the Mediation Centre to interact with
Aditya.     For   the   first   impression,   he   appeared   to   be
smart,   intelligent   kid   who   hesitated   a   bit   while   talking.
He   held   good   eye   contact.     His   eye-hand   co-ordination
seemed   age   appropriate.     He   often   repeated   words
while   completing   his   sentences.     He   also   looked
somewhat more mature for his age.  He seemed familiar
with the words like ‘visitation’, ‘court’, ‘visa’, etc.   I also
happened   to   meet   his   parents   Perry   and   Smriti   for   a
brief while during the first session.
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
50

and affinity for his father which was surprising for a child
who   lives   with   his   mother   and   spends   very   little   time
with   father   only   during   visitations.     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   along
with 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   is   Papa   would   provide   for.     His   affect
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 along with his mother and how he went fishing
there.  When asked that 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
visitation.
51

If   Aditya’s   interaction   with   his   father   increases   with
longer visitations the progress in their relationship could
be   gauged   after   a   couple   of   months.     That   could   pave
the way for negotiations between his parents.” 
78. Ms.   Sadhana   Ramachandran,   the   Mediator   in   her   report   dated
3.11.2016 submitted as under:  
“However,   on   31.10.2016,   the   undersigned   received   an
e-mail   from   the   Respondent,   Mr.   Perry   Kansagra
requesting her to close the mediation proceedings.   The
said   e-mail   is   annexed   herewith.     The   undersigned
informed the Appellant of the said communication.
xx xx xx
The   undersigned   believes   that   the   entire   credit   for
Aditya being happy and balanced at home and in school
goes   to   both   his   parents   Smriti   Madan   and   Perry
Kansagra, who have made very possible effort to ensure
that even in the trying circumstances that the child is in,
he   loves   both   his   parents   and   his   maternal   grand
mother and paternal grand parents.”
79. The child counsellor as well as the Mediator have credited Smriti for
the   upbringing   of   the   child   even   though   there   is   discord   in   the
matrimonial life.  The credit has to go to Smriti who has brought up
the   child   in   a   balanced   way   without   feeding   any   ill   will   against
Perry. 
 80.
Mr.   Mehta   argued   that   the   report   of   the   Counsellor   alone   can   be
read   in   view   of   the   intra-parties’   judgment   of   this   Court   in  	
Perry	
Kansagra  
v.  	Madan   Kansagra	16   and   that   the   Report   of   the
Mediator   submitted   to   the   Court   cannot   be   taken   into
consideration. I find that the Mediator’s report, to the extent that it
16  2019 SCC Online SC 211
52

reported that the mediation proceedings were dropped on the basis
of   an   email   from   Perry,   is   relevant   and   can   be   taken   into
consideration.   I   find   that   child   is   attached   to   both   parents.
Therefore,   there   is   no   compelling   reason   to   alter   the   existing
arrangement.   He   has   his   entire   life   to   learn   business   skills   or   the
entrepreneurship.  He   will  develop  these  aspects  in   life   in  the   later
part of his education and not while he is studying in a school. 
81. Arguments on behalf of Perry are that filing of a suit for injunction
on   the   basis   of   incessant   fights   between   the   parties,   allegation   of
adultery on the part of Perry which Smriti discovered in April, 2012
and the alleged threat given by Perry that he will remove the child
from Smriti in India are baseless. It was also argued that instances
of   adulterous   relationship   were   neither   mentioned   in   the   suit   filed
on 26.5.2012 nor in the police complaint made on 5.5.2012. It was
argued   that   filing   of   suit   was  mala   fide   and   that   Smriti’s
abandonment   of   her   maternal   home,   removal   of   child   from   Kenya
and   from   the   custody   of   Perry   must   be   held   against   her.     It   was
further submitted that Perry is more suitable and a better guardian
keeping  in view  the  bond  shared  between him and his  son,  future
prospects of the child, living conditions and surroundings in Kenya
and   overall   personality   development   of   child.   It   was   also   argued
that   Smriti   was   unfit   to   retain   custody   because   of   parental
alienation   supported   by   school   records,   Aadhaar   Card,   transcript
(Ex.PW1/5), filing of suit, obstruction to visitations and no genuine
concern for child which may not be good influence over child. 
53

82. I  do  not  find  any  merit  in  the   arguments   raised by  Mr.  Mehta  that
Smriti has  alienated Perry from the  child.   The filing of suit on the
basis of alleged threats of taking of child from her custody cannot
be   said   to   be   a   case   of   parental   alienation   as   Smriti   has   invoked
the  jurisdiction  of  the   Court  which  is  lawfully  vested  in  her.    Much
ado has been made in respect of prayer (c) in a suit for injunction
filed by her.  The prayer is only in respect of unsupervised meeting
of Perry and his parents with the child.  It has also come on record
that Perry and his parents were granted visitation rights during the
pendency of the suit.  Therefore, filing of such a suit cannot be said
to be considered as instance of parental alienation.   The allegation
of adventurism on the part of Perry with another woman during the
subsistence   of   marriage   has   not   been   rebutted   by   Perry   in   any
substantive   manner.     Perry   denied   knowing   this   woman   from
Mozambique but apart from denial, he has not explained how such
explicit messages arrived in his mobile.   The  argument that Smriti
has   not   disclosed   the   instances   of   such   messages   in   her   suit   for
injunction or in the report to the Police on 5.5.2012 is without any
substance.     The   report   to   the   Police   was   against   threatened
abduction of the child by Perry.   It was not in respect of conduct of
Perry as against Smriti as his wife.  Therefore, such instances were
not warranted to be mentioned in the Police report.   Similarly, the
suit was also against threatened forceable custody of the Child by
Perry.   It   was   disclosed   in   the   plaint   itself   that   Perry   would   be
constantly   text   messaging   someone   from   his   mobile   which   she
54

realised later on that it was related to his breach of marital fidelity.
Therefore,   the   suit   cannot   be   held   to   be  mala   fide.     Smriti   had   a
reasonable belief on the basis of conduct of Perry which compelled
her   to   invoke   the   jurisdiction   of   the   competent   Court,   therefore,
invocation of jurisdiction of a competent Court cannot be treated to
be an adverse circumstance against her.  
83. It   was   argued   that   Perry   was   the   one   indulging   in   parental
alienation   which   was   detrimental   to   the   welfare   and   development
of   the   child   and   the   time   he   spent   during   visitation   as   he
constantly   showed   the   photographs   and   videos   of   the   houses   in
Kenya,   the   farm   in  	
Solai   and   by   giving   expensive   gifts   to   him.
Smriti deposed as under:
“69.     That   the   Petitioner   and   his   family   are   not   making
any   efforts   to   bond   with   the   child   but   are   trying   to   buy
the child's love with expensive and highly inappropriate
gifts  for the child. The Petitioner has  bought the child a
cell   phone   and   handed   it   to   him   during   one   of   the
visitations.   The   child   is   of   a   young   and   impressionable
age   and   therefore   the   use   of   cell   phones   at   such   a
young   age   is   not   in   the   best   interest   of   the   child.
Therefore the act of the Petitioner to give a cell phone to
the child was contrary to the welfare and interest of the
child. The Petitioner  without informing  me or  consulting
me, forcibly put a cell phone  in  the hand of the child and
immediately   tried   to   leave.   I   had   to   stop   the   Petitioner
and inform him about my objection with the child who is
merely 6 years of age to use a cell phone. However the
Petitioner paid no heed to my concern and left. 
70.   The   Petitioner   has   also   bought   the   child   multiple
(four - five) iPads.  On a visitation, the Petitioner and his
parent   had   taken   the   child   at   the   time   was   six   (5)   to   a
mall.     They   went   into   an   electronics   shop   where   the
Petitioner bought an iPad for the child.  Just as they were
exiting the shop, the child dropped the iPad and it broke.
The   Petitioner   simply   threw   away   the   broken   iPad   and
bought   another   one   for   the   child   immediately,   without
55

admonishing   the   child   or   trying   to   explain   the
importance   of   money   and   how   to   be   careful   with
objects.     Instead   of   making   this   incident   a   learning
opportunity,   the   Petitioner   completely   neglected   his
responsibilities as a parent.”
84. Admittedly,   no   cross-examination   has   been   conducted   on   Smriti
regarding   her   statement   contained   in   paras   69   and   70,   as
reproduced   above.   Mr.   Mehta   argued   that   no   such   pleading   was
raised   and   therefore   such   evidence   was   beyond   the   pleadings.
Smriti   had   filed   the   written   statement   in   the   year   2013,   when   the
child   was   three   years   of   age.   The   incidents   referred   above   are   of
the time when the child was 6 years of age. They being subsequent
events could very well be taken into consideration. Even if it was a
new fact, Perry  had  to cross   examine  the  witness  and  seek   his  re-
examination,   if   he   wanted   to   rebut   the   evidence   given   by   Smriti.
Therefore,   such   evidence   led   by   Smriti   cannot   be   ignored,   which
shows that the child of six years was pampered.
85. In   fact,   the   recorded   version   of   unproved   conversation   with   the
child   shows   the   vicious   mind   of   Perry   to   prompt   child   to   say
negative things about Smriti.   Smriti has not been confronted with
the recorded version or the transcript nor such recorded version is
said   to   be   proved   by   furnishing   a   certificate   as   required   under
Section 65B of the Evidence Act.   Had Perry confronted Smriti with
recorded   version,   Perry   could   be   asked   as   to   why   selective
recordings have been produced and not all the recordings made by
him   which   is   evident   from   the   title   and   recordings   made   on
56

7.1.2015   and   8.1.2015.     Another   argument   raised  by   Mr.   Mehta   is
that the child is watching his mother and grandmother surviving on
rental   income,   therefore,   the   child   is   not   learning   that   working   is
necessary   to   live   a   life.     I   do   not   find   any   merit   in   the   said
argument.  Upbringing of a child warrants full time attention.  Perry
may engage nannies and maids but that will not be comparable to
mother’s contribution in upbringing of the child.  The mother is well
educated, a law graduate and had been practicing law.   Therefore,
merely   on   the   strength   of   financial   superiority,   Perry   cannot
denounce   the   effort   of   Smriti   in   upbringing   of   the   child.     Smriti   is
categorical that the conjugal relationship has come to an end after
her   separation   as   the   sole   intention   of   Perry   was   to   use   Smriti   to
procreate   child   for   him.     His   lack   of   respect   for   his   spouse   earlier
led   to   the   separation   with   a   woman   from   Mumbai.     The   said   trait
has manifested again now as against Smriti.
86. Mr.   Mehta   has   argued   that   the   basis   of   parental   alienation   is   in
prayer   (c)   in   the   suit   for   injunction   filed   by   Smriti   is   that   she
applied   for   admission   to   Delhi   Public   School   under   ‘single   parent
category’, the child’s Aadhaar card does not mention Perry’s name
and   that   the   child   has   spoken   against   Perry   and   Kenya   in   a
transcript of conversation (Ex.PW1/F)  in  January, 2015.   I find that
the   instances   of   parental   alienation   alleged   by   Perry   are   wholly
untenable.  The instances such as admission of child in Delhi Public
School   without   the   name   of   Perry,   Aadhaar   Card   without   Perry’s
name are not the acts of parental alienation.  Parental alienation is
57

to   be   assessed   in   respect   of   rights   of   visitation   and   custody   to   a
parent.   The admission of child to a School or issuance of Aadhaar
Card   with   a   single   parent   name   may   not   be   proper   but   such   acts
cannot be said to be parental alienation.
87. The   prayer   (c),   as   reproduced   in   Para   7   above,   in   the   suit   for
injunction is that the child should not be removed to pass a decree
for  permanent  injunction  restraining  Perry  and  his   parents,  agents
and   representatives   from   meeting   the   child   “without
consent/presence”   of   Smriti.     The   invocation   of   jurisdiction   and
claim of relief in a suit does not amount to alienation of the father.
Firstly,   the   prayer   is   not   absolute   but   only   to   the   extent   that   the
defendants   should   not   meet   the   child   without   the   consent   and
presence of Smriti.  Smriti has therefore not claimed absolute right
over the child in such proceedings but only foreseeable custody of
the   child.     Secondly,   invocation   of   the   jurisdiction   of   the   Court   for
vindication of one’s right will not amount to alienation of the father
wherein   Perry   has   exercised   rights   of   visitation   including
unsupervised visitation rights.
88. In fact, the High Court, vide order dated 31.5.2018, granted interim
custody   of   the   child   to   Perry   for   a   week   i.e.   from   9.6.2018   to
15.6.2018.    The  Counsellor’s  report  also  gave   credit  to Smriti  that
in spite of having an exclusive custody over the child, she has not
tutored child against Perry or grandparents.   Thus, Perry has failed
to prove any parental alienation by Smriti. In fact, Perry himself has
58

come   out   to   be   a   person   who   is   not   truthful,   uses   his   money   to
pamper the child and poison him against Smriti. (II) 	Whether Financial Superiority can be the decisive factor to 
handover the custody to a parent
89. Though,   Perry   is   possessed   of   much   more   financial   capacity   than
Smriti   but   Smriti   is   living   in   Defence   Colony   having   one   floor   to
herself and another with her mother.  Defence Colony is one of the
good   localities   in   Delhi.     Maybe,   it   is   not   comparable   to   the   Farm
House of Perry in Kenya of 13 bedrooms as mentioned by him but,
keeping   in   view   the   Indian   standards   of   living,   the   Child   is   being
very well taken care of.   The rental income accruing to the mother
of Smriti is of more than Rs. 20 lakhs, as admitted by Perry himself,
whereas   even   after   paying   Rs.7   lakhs   (approx.)   as   monthly
installment   of   the   loan   taken   from   the   Bank,   Smriti   has   sufficient
means   available   to   take   care   of   herself   and   the   child.     It   is   not
comparable   to   the   status   of   Perry   in   Kenya   in   any   manner,   which
she   is   entitled   to   as   wife   of   Perry.   However,   such   assessment   is
subject   to   the   rights   of   the   parties   in   the   pending   maintenance
proceedings.
90. Mr. Divan had raised an argument that Perry’s financial superiority
cannot be a decisive factor to hand over the custody to him.   The
Family   Court   held   that   Smriti   lives   in   a   flat   in   a   multi-storied
building,   the   ground   floor   of   her   house   is   a   commercial
establishment and upper floor is used for residence.  Factually, the
statement of Smriti is that she is residing on one floor of a house in
59

Defence Colony whereas her mother is residing on a separate floor
in   the   same   building.     Smriti   has   deposed   that   there   are   six
bedrooms,   two   drawing   rooms,   two   dining   rooms,   six   bathrooms
and   the   entire   terrace.     This   kind   of   accommodation   which   is
available   is   sufficient   for   three   people.     There   was   no   cross-
examination conducted by Perry on this part of testimony of Smriti.
Perry   is   contributing   Rs.   1,00,000/-   per   month   as   maintenance
towards the child only from February, 2016 and has not given any
maintenance to Smriti and the child since 2012 till February, 2016.
This   Court   in   a   judgment   reported   as  Smt.   Surinder   Kaur	
Sandhu 
v. 	Harbax Singh Sandhu & Anr.	17   held as under:
“8.     Some   of   these   circumstances   mentioned   by   the
learned   Judge   are   not   beside   the   point   but,   their
comparative   assessment   is   difficult   to   accept   as   made.
For   example,   the   “traumatic   experience   of   a   conviction
on   a   criminal   charge”   is   not   a   factor   in   favour   of   the
father,   especially   when   his   conduct   following
immediately   upon   his   release   on   probation   shows   that
the   experience   has   not   chastened   him.   On   the   whole,
we   are   unable   to   agree   that   the   welfare   of   the   boy
requires   that   he   should   live   with   his   father   or   with   the
grandparents.   The   father   is   a   man   without   a   character
who   offered   solicitation   to   the   commission   of   his   wife's
murder. The wife obtained an order of probation for him
but,   he   abused   her   magnanimity   by   running   away   with
the   boy   soon   after   the   probationary   period   was   over.
Even in that act, he displayed a singular lack of respect
for law by obtaining a duplicate passport for the boy on
an   untrue   representation  that   the  original  passport   was
lost. The original passport was, to his knowledge, in the
keeping of his wife. In this background, we do not regard
the   affluence   of   the   husband's   parents   to   be   a
circumstance of such overwhelming importance as to tilt
the   balance   in   favour   of   the   father   on   the   question   of
what is truly for the welfare of the minor. At any rate, we
17  (1984) 3 SCC 698
60

are unable to agree that it will be less for the welfare of
the   minor   if   he   lived   with   his   mother.   He   was   whisked
away   from   her   and   the   question   is   whether,   there   are
any   circumstances   to   support   the   view   that   the   new
environment   in   which   he   is   wrongfully   brought   is   more
conducive to his welfare. He is about 8 years of age and
the loving care of the mother ought not to be denied to
him.   The   father   is   made   of   coarse   stuff.   The   mother
earns  an income of £100 a week, which is certainly not
large   by   English   standards,   but   is   not   so   low   as   not   to
enable her to take reasonable care of the boy.”
91. In  Gaurav   Nagpal ;  	Surinder   Kaur   Sandhu	;   and,  	Dhanwanti	
Joshi  
v.  	Madhav   Unte	18 ,   it   was   held   that   financial   superiority   of
one   parent   cannot   be   the   criteria   for   the   change   of   custody   from
one   parent   to   the   other.     Therefore,   though   Perry   has   more
financial   resources   with   him,   but   that   alone   would   not   entitle   him
to have physical custody of the child. 	
(III) 	Continued Supervisory Jurisdiction of Indian Courts is 
essential for Aditya’s Welfare 
92. Mr. Divan has vehemently argued that this Court exercises  	
parens	
patriae  
jurisdiction   over   the   children   who   reside   within   the   local
limits   of   the   jurisdiction   of   this   Court.     It   was   argued   that   the
continuing   supervisory   jurisdiction   is   a   necessary   concomitant   of
this   Court.     The   jurisdiction   of   the   Family   Court   at   Delhi   was
invoked   by   Perry   for   the   reason   that   the   child   is   an   ordinary
resident in Delhi.   The jurisdiction of Courts in India over the child
continues   even   after   an   order   of   appointment   of   guardian.
Sections   26,   39(h),   43   and   44   of   the   Act   ensure   that   the   Court
continues to have supervisory jurisdiction over the ward even after
18  (1998) 1 SCC 112
61

passing of the orders.  
93. Mr.   Mehta   relied   on   Section   26   of   the   Act   to   contend   that   the
jurisdiction   of   this   Court   would   continue   even   after   the   ward   is
away   from   the   territorial   limits   of   this   Court.     He   relied   upon   a
judgment of this Court in  Jasmeet Kaur   v.  	State (NCT of Delhi)	
& Anr.	19
  that he is willing to have an order from the Kenyan Court
to   ensure   that   Perry   remains   bound   by   the   orders   of   this   Court
which   can   be   executed,   if   need   be,   by   the   Kenyan   Court.     It   was
also   stated   that   the   argument   raised   by   Smriti   that   child   is   well
settled   in   India   and   the   apprehension   that   the   Courts   in   India   will
lose   jurisdiction   are   unfounded   and   baseless.     The   contention
regarding the incident of dam burst was said to be irrelevant in the
present matter since there is an appeal pending before the Higher
Court of Kenya. Also, the allegations of alcoholism and racism were
denied by Perry.
94. I   do   not   find   any   merit   in   the   said   argument   raised   by   Mr.   Mehta.
Section 26 of the Act puts a restriction on the rights of a guardian
to   not   remove   the   ward   from   the   limits   of   the   jurisdiction   without
leave of the Court except for such purposes as may be prescribed.
In   terms   of   Section   4(5)   of   the   Act,   the   District   Court   is   having
jurisdiction   to   entertain   an   application   under   the   Act.   The
Jurisdiction of the Court within the meaning of Section 26 of the Act
is   the   territorial   jurisdiction   of   Court.   It   does   not   mean   extra-
territorial jurisdiction beyond the physical boundaries of India. The
19  2019 (17) Scale 672
62

Court   can   permit   the   movement   of   Child   within   India   and   not
beyond.     Similarly,   a   guardian   appointed   by   the   Court   can   be
removed under Section 39(h)  of the  Act, if the  guardian  ceases to
reside   within   the   local   limits   of   the   jurisdiction   of   the   Court.
Section   44   contemplates   penalty   for   removal   of   ward   from   the
jurisdiction of the Court i.e. Delhi. The  Court can grant permission
only   within   the   territorial   limits   to   which   the   Act   is   applicable.
Therefore, a guardian appointed by the Family Court under the Act
cannot remove the ward from the jurisdiction of Delhi Family Court.
The   Family   Court   could   permit   the   removal   of   the   ward   from   the
limits   of   its   jurisdiction   but   within   country   as   the   Family   Court
would   become   incompetent   to   ensure   compliance   of   its   directions
once the child is removed from the boundaries of the country.  
95. The   judgment   in  Jasmeet   Kaur	  arises   out   of   very   different   facts.
In that case, both the parents were US citizens. The father had filed
a   writ   of   Habeas   Corpus   for   production   of   his   children   who   were
said to be illegally abducted by the mother from his custody in USA
before   the   Court   along   with   their   US   passports.   Such   petition   was
allowed by the High Court and the mother was directed to return to
US along with the two minor children within a period of 3 weeks. It
was   observed   that   the   parties   had   abandoned   their   domicile   of
origin i.e. India and set up their matrimonial home in US. Therefore,
when the mother decided not to return to US, it was held that she
acted   in   her   self-interest   and   not   in   the   best   interest   of   the
children.   The High Court held that the children have a right to be
63

brought up by both the parents as a family is in U.S.
96. The   father   had   instituted   custody   proceedings   before   US   County
Court as well wherein an ex-parte interim order granting temporary
custody   of   both   the   children   to   the   father   was   passed   with
supervised   visitation   rights   of   the   mother.     Thereafter,   the   Court
passed   a  final   order   directing   the   mother   to   return   to  US  with  the
minor children and granted sole legal and physical custody of both
the   children   to   the   father   with   supervised   visitation   rights   to   the
mother. 
97. The   mother   also   had   filed   a   petition   under   the   Act   for   permanent
and   sole   custody   of   her   children   in   India.     In   such   petition,   the
father   filed   an   application   seeking   rejection   of   the   plaint   under
Order   VII   Rule   11   CPC.     The   Family   Court   allowed   the   application
and dismissed the guardianship petition.   Such order was affirmed
by the  High Court in appeal.   Still aggrieved, the mother had filed
an appeal before this Court.  This Court set aside the order passed
under Order VII Rule 11 CPC. The  case  was remitted to the Family
Court to be decided on merits. Thereafter on remand, Family Court
held   that   Indian   Courts   would   not   have   jurisdiction   to   entertain
petition   under   the   Act.     The   Family   Court   held   that   paramount
interest of the children would lie in the shared parenting by parties
in   US   and   the   mother   was   not   entitled   to   the   sole   custody   of   the
children.    The   Family  Court  also  held  that  the  Indian  Courts  would
lack   jurisdiction   to   entertain   the   guardianship   petition.     The   first
64

appeal   was   dismissed   by   the   High   Court   as   well   on   the   same
ground.   Further,  since   there   was   an  order   of   competent  US   Court,
the   High   Court   directed   the   father   to   submit   an   affidavit   of
undertaking to comply with the directions by the Superior Court of
Stanford.  The mother finally agreed to return to US with the minor
children   in   agreement   to   the   directions   issued   by   this   Court.   The
said  judgment  would  not  be   applicable   to  the   facts   of  the   present
case as there is no order of competent Foreign Court in respect of
custody of minor.  
98. It   may   be   noticed   that   India   and   Kenya   are   not   signatory   to   the
Convention on Civil Aspects on International Child Abduction, 1980.
This Court in  Nithya Anand Raghavan   v.  	State  (NCT of Delhi)	
&   Anr.	20
,   considering   such   aspect,   held   that   a s   regards   the   non-
Convention   countries,   the   law   is   that   the   court   in   the   country   to
which   the   child   has   been   removed   must   consider   the   question   on
merits bearing the welfare of the child as of paramount importance
and   reckon   the   order   of   the   foreign   court   as   only   a   factor   to   be
taken into consideration. There can be summary jurisdiction in the
interests of the child or an elaborate inquiry as welfare of the child
is of paramount consideration.  This Court held as under:
“40 … Thus, while examining the issue the courts in India
are   free   to   decline   the   relief   of   return   of   the   child
brought   within   its   jurisdiction,   if   it   is   satisfied   that   the
child is now settled in its new environment or if it would
expose   the   child   to   physical   or   psychological   harm   or
otherwise   place   the  child   in   an  intolerable   position  or   if
the   child   is   quite   mature   and   objects   to   its   return.   We
are   in   respectful   agreement   with   the   aforementioned
20  (2017) 8 SCC 454
65

exposition.”
99. The judgment of this Court in  Sri Nilanjan Bhattacharya   v.  	The	
State   of   Karnataka   &   Ors.	21 
arises   out   of   a   Habeas   Corpus
petition filed by the appellant in respect of 3½ years old child.  The
Superior   Court   of   New   Jersey,   Hudson   County,   Chancery   Division,
USA has passed an order in favour of the appellant for custody and
for   return   of   the   minor   child.     Later,   the   Court   granted   legal   and
temporary custody of the child to the appellant. The appellant was
aggrieved   by   the   following   two   conditions   imposed   by   the   High
Court while allowing the child to take back to USA.   The conditions
were as follows:
“ (a) That the minor child shall be repatriated only after a
certificate   being   issued   by   the   Officer   of   the   rank   of
District Health Office of Bengaluru in certifying that this
Country is free of COVID - 19 pandemic and it is safe for
the travel of minor child to USA; 
(b)   Simultaneously   the   petitioner   herein   shall   also
secure   a   certificate   from   the   concerned   Medical
authority  at USA in certifying that  the condition in USA,
particularly in the region where the petitioner is residing
is   congenial   for   shifting   the   residence   of   minor   child   –
Master   Adhrit   Bhattacharya   in   compliance   of   the   order
passed by the Court of New Jersey;”
100. This   Court   examined   the   issue   having   regard   to  	
parens   patriae
having jurisdiction of this Court not restricted to the two conditions
imposed.     This   Court   held   that   the   mother   has   not   shown   any
particular inclination to retain the child in India.  The Court came to
the   conclusion   that   the   welfare   of   the   child   will   be   best   served   in
21  Civil Appeal No. 3284 of 2020 decided on 23.9.2020
66

US as the child was born in US and was citizen of US by birth.  The
father   has   taken   the   responsibility   for   shared   parenting   when   the
child was in US.  It was further held that the child was remained in
India for a short period and it would not be contrary to his interest
to allow the father to take him back.
101. I find that the said judgment is of no help to the arguments raised
by Mr. Mehta.  In the present case, the child was born in India. The
child   is   a   citizen   of   both   the   countries   on   account   of   dual
citizenship   of   Kenya   and   England  of   Perry.  The   child   has   stayed  in
India   as   per   the   arrangements   arrived   at   between   the   parties   at
least   till   26.4.2012.     Thereafter,   Perry   has   been   granted   visitation
rights   which   he   has   availed.     The   report   of   the   Counsellor,   the
Mediator   and   the   order   of   the   High   Court   show   that   the   child   is
equally comfortable with both the parents.
102. This   issue   is   to   find   out   the   welfare   of   the   Child   in  parens   patriae
jurisdiction   of   this   Court.   The  question   required   to   be   examined  is
whether   this   Court   should   permit   the   child   to   be   out   of   its
supervisory   jurisdiction   so   as   to   be   a   mute   spectator   to   the
possibility of defiance of the order of this Court. I am of the opinion
that welfare of the Child would be to stay in India with his mother
who   has   brought   up   the   child   for   last   11   years.   The   Child   is
intelligent   but   not   mature   enough   to   take   decisions   by   himself.
Even,   the   law   recognizes   that   the   child   of   less   than   18   years   is
incapable   of   representing   himself.     Therefore,   any   opinion   of   the
child is  not determinative  of the  final custody of the  child  but  this
67

Court as parens patriae  is duty bound to assess the entire situation
to return a finding whether the welfare of the child will be with the
mother   with   visitation   rights   to   the   father   or   custody   with   the
father with visitation rights to the mother.     If the child is moved to
Kenya, there is no way that this Court can enforce the orders to get
the child back to India, even if it so desires. 
103. It was argued that, on 28.9.2020, when the hearing of the present
appeal   was   deferred   for   30.9.2020,   a   day   in   between   i.e.   on
29.9.2020,   Perry   had   obtained   a   certificate   from   the   Office   of   the
President of Kenya, Ministry of Interior and Coordination of National
Government.     The   certificate   was   that   Perry   continues   to   be   very
popular   with   all   the   people   of  	
Solai   and   there   is   absolutely   no
threat   at   all   to   the   family.     The   influence   which   Perry   exercises   in
Kenya is made out from the said certificate which was produced in
a   day’s   time   after   the   hearing   closed   on   28.9.2020   and   the
remaining   arguments   were   to   be   heard   on   30.9.2020.     Such   good
character   certificate   is   not   really   relevant   in   the   proceedings
pending before the Court regarding cases of manslaughter against
him.  Considering such influence that Perry has in Kenya, Smriti will
not be able to face Perry and his family in any litigation whatsoever
in the event Perry choses to defy the orders of the Court. Smriti is
categorical, which I have no reason to doubt that she will not be in
position to  take  course  to  her legal remedies  in Kenya   on account
of logistic issues as well as the financial and political power of Perry
and   his   family.   The   Courts   in   India   will   not   have   jurisdiction   over
68

Perry   and   the   Child,   both   being   Citizens   of   Kenya   and   United
Kingdom, once they are out from the territorial limits of India. Any
remedy   in   Kenya   or   United   Kingdom   is   not   an   easy   solution   for
Smriti.   There   is  nothing  on  record  to   show  how  the  orders  of  this
Court   can   be   enforced   by   the   Kenyan   Courts   in   the   event   Perry
refuses to comply with the directions of this Court at a subsequent
stage.  
104. Further, Mr. Mehta relied upon judgments of this Court reported asElizabeth   Dinshaw   (Mrs)  
v.  	Arvand   M.   Dinshaw   &   Anr.	22 ,	
Vivek  Singh  
v.  	Romani Singh	23  and  Kalpana Mehta  & Ors.   v.	
Union   of   India   &   Ors.	24 
in   support   of   his   arguments   that   the
order passed by High Court does not warrant any interference. 
105. In  	
Elizabeth   Dinshaw’s   case,   the   appellant   (mother)   was   a
citizen   of   the   United   States   of   America,   whereas   the   respondent
(father) was an Indian.  The parties married in a State of Michigan.
The Michigan Court passed an order at the instance of the mother
dissolving the marriage and also giving custody and control of the
minor   child   of   the   parties   until   he   reaches   the   age   of   18   years   or
until   the   further   orders   of   that   Court.     The   father   was   given
visitation   rights.     In   violation   of   the   visitation   rights,   the   father
picked   up   the   child   from   the   school   and   secretly   left   the   United
States   of   America   for   India   after   selling   his   immovable   property.
Since   there   was   a   violation   of   the   order   passed   by   the   Michigan
Court, the mother filed a writ of Habeas Corpus in India.  This Court
22  (1987) 1 SCC 42
23  (2017) 3 SCC 231
24  (2018) 7 SCC 1
69

ordered that it will be in the best interests and welfare of the child
that   he   should   go   back   to   the   United   States   of   America   and
continue  his  education  under the  custody  and  guardianship  of  the
mother to whom the custody and guardianship is entrusted by the
competent court in that country.  
106. As   mentioned   earlier,   the   cases   wherein,   the   foreign   courts   have
passed   an   order   of   visitation   rights   or   custody   stand   on   different
footing   as   the   present   is   a   case   where   there   is   no   proceeding
before   any   other   Court   other   than   the   Family   Court,   Delhi.
Therefore,   the   said   judgment   does   not   provide   any   assistance   to
the arguments raised.
107. In  Vivek   Singh’s	  case,   the   mother   has   invoked   the   jurisdiction
under the  Act for the  custody  and appointment of  the guardian of
the   minor   daughter.     The   Principal   Judge,   Family   Court   found   that
the   father   is   a   fit   person   to   retain   the   custody   of   the   child   and
therefore   dismissed   the   petition.     The   High   Court   allowed   the
appeal   and   handed   over   the   custody   of   the   child   to   the   mother,	
inter alia
, for the reason that the girl child was less than five years
of   age   at   the   relevant   time,   and   the   mother   was   better   suited   to
take care of the child.  The custody of the child continued with the
father,   during   the   pendency   of   the   appeal,   in   view   of   the   interim
order   passed   by   the   High   Court.     However,   visitation   rights   were
granted   to   the   mother   by   way   of   an   interim   arrangement.     This
Court held as under:
“13.    Second  justification  behind  the  “welfare”  principle
is the public interest that stand served with the optimal
70

growth of the children. It is well recognised that children
are   the   supreme   asset   of   the   nation.   Rightful   place   of
the   child   in   the   sizeable   fabric   has   been   recognised   in
many international covenants, which are adopted in this
country   as   well.   Child-centric   human   rights
jurisprudence   that   has   been   evolved   over   a   period   of
time   is   founded   on   the   principle   that   public   good
demands proper growth of the child, who are the future
of the nation.   …
xx xx xx
15.     It   hardly   needs   to   be   emphasised   that   a   proper
education   encompassing   skill   development,   recreation
and cultural activities has a positive impact on the child.
The   children   are   the   most   important   human   resources
whose   development   has   a   direct   impact   on   the
development   of   the   nation,   for   the   child   of   today   with
suitable   health,   sound   education   and   constructive
environment   is   the   productive   key   member   of   the
society. The present of the child links to the future of the
nation, and while the children are  the treasures of  their
parents, they are  the assets  who  will be responsible for
governing   the   nation.   The   tools   of   education,
environment,   skill   and   health   shape   the   child   thereby
moulding the nation with the child equipped to  play his
part   in   the   different   spheres   aiding   the   public   and
contributing   to   economic   progression.   The   growth   and
advancement   of   the   child   with   the   personal   interest   is
accompanied   by   a   significant   public   interest,   which
arises   because   of   the   crucial   role   they   play   in   nation
building.”
108. This   Court   found   that   though   the   child   is   staying   with   the   father
since she was 21 months old, but the father has not said anything
about   the   positive   traits   of   the   mother.     The   matrimonial   discord
between the two parties would have been understood by the child,
as   given   by   the   father.     Psychologists   termed   it   as   “The   Parental
Alienation Syndrome”.  This Court has granted custody of the child
to   the   mother   for   at   least   one   year   so   that   level   playing   field   is
71

granted   to   both   the   parents.   However,   in   the   present   case,   the
report   of   the   Child   Counsellor   and/or   the   Mediator   as   well   as   the
order   of   the   Court   do   not   suggest   that   there   is   any   “Parental
Alienation Syndrome” against Perry.  
109. In the   present case, the  child has   grown up  in India  in  the  last 11
years.     At   this   age,   the   child   would   be   exposed   to   physical   and
psychological   harm,   if   he   is   shifted   to   Kenya   amongst   fellow
students and teachers but without any friends. He would be taken
care   of   by   nannies,   maids   with   libera   pampering   by   the
grandparents and the father.   Therefore, I do not find any merit in
the arguments raised by Mr. Mehta.  
110. The  High  Court   vide   a  separate   short   order   dated   25.2.2020   gave
visitation   right   to   Smriti   to   talk   to   the   child   over   audio   calls/video
calls   for   at   least   10   minutes   every   day   at   a   mutually   agreed   time
which is least disruptive to the schooling and other activities of the
child.     It   was   also   ordered   that   Smriti   shall   be   entitled   to   freely
exchange e-mails, letters and other correspondences with the child
without   any   hinderance   by   Perry   or   his   family.     Smriti   was   given
right to visit the child during summer and winter vacations on the
dates   to  be  mutually  agreed  upon   but  she   shall  not  be   entitled  to
take the child out of Nairobi, Kenya.   Perry was to bear the cost of
her   return   air   tickets   for   travel   from   India   once   a   year   and
accommodation for seven days.   Perry was also directed to file an
undertaking   before   the   High   Court   once   the   order   has   attained
finality that the order of the Family Court and the directions given
72

by   the   High   Court   would   be   complied   with.     It   is   an   illusory   order
not   capable   of   enforcement   in   any   manner,   in   the   event   Perry
refuses   to   comply   with   the   order.   I   do   not   think   that   this   Court
should pass an order which leads to irreversible situation. 
111. I find that the order of the High Court granting visitation rights for
one   week   is   a   farce.     Perry   has   been   coming   to   India   quite
frequently and has unsupervised visitation rights over the child as
well.  Therefore, instead, it will be in the interest of justice, if Perry
is   given   unsupervised   visitation   rights   in   India   or   abroad   for   a
month   during   summer   or   winter   holidays   either   in   parts   or
consecutively.     The   travel   documents   of   the   child   will   be   retained
by  Smriti  so   that  child   is   not  removed  from   the   jurisdiction   of   this
Court, if the Child is with Perry in India. 
112. In   the   event   Perry   decides   to   Holiday   in   any   other   country   than
India, Perry shall make arrangements for the travelling and stay of
Smriti   on   the   agreed   destination.     The   travel   documents   of   the
child   shall   be   kept   in   safe   custody   in   Indian   Embassy   or   in   the
event, Indian Embassy or its Consulate Office is not available, with
the   local   Police   which   can   be   taken   back   only   at   the   time   of
travelling back of Child to India.
113. In view of the above, the appeal is allowed.   The orders passed by
the   Family   Court   and   the   High   Court   are   set   aside   with   grant   of
visitation rights to Perry.  However, liberty is given to the parties to
seek further orders, as may be required from time to time, from the
73

Family Court, New Delhi.
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
OCTOBER 28, 2020.
74