NDLI: Smriti Madan Kansagra Vs. Perry Kansagra

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Guardian and Wards Act
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Guardians and Wards Act, 1890 (8 of 1890)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Others
Headnote	Guardian and Wards Act, 1890 – Custody of minor child – Obtained by fraud – Contempt of Court – Guardianship petition filed by father (of Indian origin) settled in Kenya for custody of the minor child before Family Court, New Delhi – Allowed – Affirmed by High Court – Undertaking given by him to submit to the jurisdiction of Indian Courts – High Court’s order challenged by mother – Appeal dismissed by majority judgment of Supreme Court dtd. 28.10.20 – Custody of the child handed over to the father subject to his obtaining mirror order from the concerned court in Nairobi reflecting the directions contained in the said judgment – Undertaking filed to abide by the directions contained in the majority decision – Originating Summons filed by him in the High Court of Kenya at Nairobi seeking registration of the judgment dtd.28.10.20 and for obtaining mirror order – Registration granted vide order dtd.09.11.20 – Mother filed M.A seeking modification of certain directions issued in paragraph 20 of the majority judgment – Application disposed of vide order dtd. 08.12.20 – Undertaking given by the father in Supreme Court to abide by the said order – Child taken to Kenya – Vacation access denied to the mother – Father also filed petition in Kenya inter alia challenging the jurisdiction of the Indian Courts – Held: At no stage the father brought the development to the notice of Supreme Court that the Summons moved by him seeking registration of the judgment dtd.28.10.20 was subsequently dismissed by the High Court of Kenya at Nairobi – It was only on the basis of the solemn undertakings given by him and the order dtd.09.11.20 passed by the High Court of Kenya at Nairobi which was projected to be a mirror order in compliance of the directions issued by this Court, that the custody of the child was directed to be handed over to him – Further, order dtd.08.12.20, made it clear that the undertaking given to the High Court would continue to be operative, in addition to the undertakings given to this Court – However, such undertakings were not only flagrantly violated but a stand is now taken challenging the very jurisdiction of the Indian Courts – Orders obtained by playing fraud upon the Court – A party approaching the Court must come with clean hands, more so in child custody matters – Non-disclosure of material facts by the father at relevant junctures shows that he approached the Indian Courts with unclean hands – Judgment dtd.28.10.20 and the order dtd.08.12.20 recalled – Guardianship Petition filed by the father is dismissed – Custody of the child with him is illegal and void ab initio – Notice for contempt issued – Further directions issued. Guardian and Wards Act, 1890 – Parens patriae jurisdiction – Held: Wherever the custody of a minor is a matter of dispute, the primary custody of the minor in parens patriae jurisdiction is with the Court which may then hand over the custody to the person who would be the most suitable – Any action initiated to obtain such custody from the Court with fraudulent conduct and design would be a fraud on the process of the Court.
Judge	Honble Mr. Justice Uday Umesh Lalit
Neutral Citation	2021 INSC 632
Petitioner	Smriti Madan Kansagra
Respondent	Perry Kansagra
SCR	[2021] 10 S.C.R. 742
Judgement Date	2021-10-07
Case Number	3559

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