Read Judgment: Smriti Madan Kansagra vs. Perry Kansagra

Pankaj Bajpai

New Delhi, October 11, 2021: While recalling an order granting custody of a child to a Kenyan citizen of Indian origin after finding that he had played fraud on the court and had approached it with “unclean hands” by suppressing material facts, the Supreme Court has observed that the earlier order passed by the Bench granting custody to the father who played fraud, was “illegal”. 

The Supreme Court dismissed the Guardianship Petition filed by Perry Kansagra in the District Court, Saket, New Delhi seeking permanent custody of Aditya (child) and the resultant proceedings arising therefrom.

The background of the case was that a three judge bench of the Supreme Court in October 2020 by 2:1 majority had held that the Indian-origin father, who was then residing at Kenya, was entitled to the custody of the child. While Justices UU Lalit and Indu Malhotra (since retired) gave the custody of the son to the father, Justice Hemant Gupta dissented to hold that the mother was entitled to the custody.

The majority however imposed a condition that the father should obtain a “mirror order” from the corresponding Kenyan court within two weeks to take the child to Kenya. 

Later, the mother filed an application stating that the father got custody by allegedly giving a forged or wrong mirror order from the Kenyan High Court. It was also alleged that he not only refused to obey the directions granting visitation or meeting rights to the mother but also moved the Kenyan court for declaration of invalidity of Indian jurisdiction and/or laws and/or judgments denying, violating and/or threatening to infringe the fundamental rights of the Minor through purported and unenforceable judgments and orders relating to the Minor under Articles 23(3) (d) of the Constitution of Kenya. 

After examining the evidences, the Apex Court quoted the decision in case of Kinch v. Walcott [1929 AC 482: 1929 All ER Rep 720 (PC)] to observe that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away, and in such an eventuality, the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. 

Suppression of any material fact/document amounts to a fraud on the court and every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non-est, added the Larger Bench of Justice Uday Umesh Lalit, Justice Ajay Rastogi and Justice Hemant Gupta.

The Larger Bench stated that though, at every juncture solemn undertakings were given by Perry to the High Court and this Court, such undertakings were not only flagrantly violated but a stand is now taken challenging the very jurisdiction of the Indian Courts, despite having submitted himself to the jurisdiction of the Indian Courts. 

Such conduct, prime facie, can certainly be said to be contumacious calling for an action in contempt jurisdiction and moreover, the nondisclosure of material facts by Perry at the relevant junctures also shows that he approached the Indian Courts with unclean hands, added the Bench. 

It was only on the basis of the solemn undertakings given by Perry and the order Nov 09, 2020 passed by the High Court of Kenya at Nairobi which was projected to be a “Mirror Order” in compliance of the directions issued by this Court, that the custody of Aditya was directed to be handed over to Perry. Since the false and fraudulent representations made by Perry were the foundation, on the basis of which this Court was persuaded to handover custody of Aditya to him, it shall be the duty of this Court to nullify, in every way, the effect and impact of the orders which were obtained by playing fraud upon the Court”, observed the Court.   

The Apex Court Larger Bench therefore issued notice to Perry as to why proceedings in contempt jurisdiction be not initiated against him for having violated the solemn undertakings given to this Court. 

While directing the Registry to register Suo Motu Contempt Case, the Apex Court directed the Central Bureau of Investigation (CBI), New Delhi through its Director to initiate appropriate proceedings by registering criminal proceedings against Perry and to secure and entrust the custody of Aditya to Smriti.

The Larger Bench also directed the Secretary, Ministry of External Affairs, Government of India, New Delhi and the Indian Embassy in Kenya to ensure that all possible assistance and logistical support is extended to Smriti in securing the custody of Aditya.

From and out of the amount of Rs.1 crore deposited by Perry in this Court, at this stage, an amount of Rs.25 lakhs be handed over to Smriti towards legal expense incurred or required to be incurred hereafter. Rest of the money shall continue to be kept in deposit with the Registry till further orders, added the Bench. 

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