Custody Dispute and Visitation Rights: Supreme Court’s Order in Child Custody Case

This case addresses the custody dispute between Smriti Madan Kansagra (the appellant) and Perry Kansagra (the respondent) regarding their child, Aditya Vikram Kansagra. The issue at hand involves the directions given by the Supreme Court in the matter of child custody, visitation rights, and the enforcement of the judgment across jurisdictions, specifically India and Kenya. The appellant sought modifications to the directions in the Supreme Court’s earlier judgment regarding the custody and visitation arrangements for the child, as well as additional rights for the mother to interact with her son.

Background of the Case

The marriage between the appellant, Smriti Madan Kansagra, and the respondent, Perry Kansagra, was solemnized in 2016. The couple had a child, Aditya Vikram Kansagra, born in May 2017. On August 27, 2020, the respondent filed a complaint, seeking custody of their son, Aditya, after the appellant had been in India and had refused to return Aditya to Kenya. The Supreme Court had earlier ruled on the custody of Aditya, directing that custody be handed over to the father, Perry Kansagra, while providing visitation rights for the mother, Smriti Kansagra, under specific conditions.

However, after the judgment was delivered on October 28, 2020, and certain orders were passed, the appellant filed a Miscellaneous Application seeking modifications to the directions, especially regarding visitation and the child’s education. The appellant sought permission for further visitation rights, temporary custody during certain vacations, and other directions that would ensure regular interaction with her son.

Petitioner’s Arguments

The petitioner raised the following arguments in support of her application for modification:

• Temporary Custody and Visitation Rights: The petitioner requested that she be granted temporary custody during both the summer and winter vacations and during the Easter holidays. She emphasized that maintaining a bond with her son was in his best interest.
• Communication and Correspondence: The petitioner argued that she should be allowed to exchange e-mails, letters, and other forms of communication freely with her son, without interference from the respondent or his family.
• Video and Audio Calls: The petitioner sought an increase in the duration of her video calls with Aditya, requesting at least 10 minutes daily, which was later modified to an hour on weekends.
• Educational and Welfare Involvement: The petitioner requested to be kept informed of her son’s schooling, medical condition, and other activities. She sought access to school reports, participation in parent-teacher meetings, and the ability to visit his school in Kenya.
• Visitation to Kenya: The petitioner requested the ability to visit Kenya every two months at the respondent’s expense. She also asked for permission to take her son on holidays outside Nairobi.

Respondent’s Arguments

The respondent opposed several of the petitioner’s requests, providing the following counterarguments:

• Best Interests of the Child: The respondent argued that the proposed visitation and custody arrangements would not be in the best interest of the child. They emphasized that regular travel would disrupt Aditya’s schooling and other activities, and that the child’s welfare should take precedence.
• Limitations on Travel: The respondent contended that permitting the appellant to visit Kenya every two months and to take the child out of Nairobi was excessive. They suggested that such frequent visits could interfere with the child’s education and emotional stability.
• Maintenance of Regularity: The respondent argued that the frequency of communication between the mother and child should remain limited to preserve the child’s routine and avoid unnecessary disruptions.
• Compliance with the Supreme Court’s Previous Order: The respondent argued that the directions passed by the Supreme Court were adequate and that no further modifications were necessary, especially considering the complexity of the child’s international living arrangements.

Supreme Court’s Analysis

The Supreme Court, while considering the modification application, discussed the following key points:

• Best Interests of the Child: The Court reaffirmed the paramount importance of the child’s welfare in deciding custody and visitation matters. It acknowledged that while the appellant’s desire to spend time with her child was valid, the Court must ensure that such interactions did not interfere with the child’s education and social development.
• Modification of Visitation Rights: The Court accepted the respondent’s concern regarding the disruption to the child’s routine and academic progress. The Court therefore modified the petitioner’s request for temporary custody during vacations, granting only 50% of the time during one vacation instead of both.
• Video Calls and Communication: The Court upheld the direction to allow the mother to interact with her son via video calls, but clarified that the duration of these calls would be one hour on weekends, ensuring flexibility without overburdening the child.
• International Travel: The Court rejected the petitioner’s request to be allowed to visit Kenya every two months at the respondent’s expense, citing the burden this would place on the child’s education and stability. However, the Court did allow for one additional trip per year for the petitioner, coinciding with the child’s birthday.
• Mirror Orders and International Compliance: The Court addressed the issue of enforcing the judgment in Kenya, acknowledging the challenges in implementing cross-border custody decisions. The Court clarified that a mirror order should be obtained in Kenya to ensure the enforcement of the Supreme Court’s orders.

Supreme Court’s Judgment

The Supreme Court issued the following directions in its final judgment:

• The appellant shall have temporary custody of Aditya during one vacation each year, with the respondent bearing the cost of travel and accommodation for the appellant and her mother to visit Aditya in Kenya once a year.
• The appellant is permitted to interact with Aditya through video calls for one hour every weekend. The child is also allowed to speak to his mother whenever he desires.
• The appellant is allowed to visit Kenya once a year, at her own expense, during the annual vacation, and also for the child’s birthday.
• The respondent is required to provide regular updates on the child’s education, health, and well-being, including school reports, and to allow the appellant to visit the school in Kenya.
• The Court directed that the respondent should provide the necessary documents to facilitate the child’s schooling and future travel, including the child’s Kenyan passport.
• The Court approved the mirror order issued by the Kenyan High Court for the enforcement of the Supreme Court’s directions.

Conclusion

The Supreme Court’s decision in this case underscores the delicate balance between parental rights, child welfare, and international jurisdictional challenges in child custody cases. The Court made it clear that while the rights of both parents are important, the child’s best interests must always remain the top priority. The ruling also highlights the complexities of enforcing custody decisions across borders, particularly in international parenting arrangements, and the need for cooperation between jurisdictions to ensure the child’s well-being is upheld.

Petitioner Name: Smriti Madan Kansagra.
Respondent Name: Perry Kansagra.
Judgment By: Justice Uday Umesh Lalit, Justice Indu Malhotra, Justice Hemant Gupta.
Place Of Incident: India and Kenya.
Judgment Date: 08-12-2020.

Don’t miss out on the full details! Download the complete judgment in PDF format below and gain valuable insights instantly!

Download Judgment: Smriti Madan Kansagr vs Perry Kansagra Supreme Court of India Judgment Dated 08-12-2020.pdf

Direct Downlaod Judgment: Direct downlaod this Judgment

See all petitions in Contract Disputes
See all petitions in Consumer Rights
See all petitions in Education Related Cases
See all petitions in Judgment by Uday Umesh Lalit
See all petitions in Judgment by Indu Malhotra
See all petitions in Judgment by Hemant Gupta
See all petitions in allowed
See all petitions in supreme court of India judgments December 2020
See all petitions in 2020 judgments

See all posts in Civil Cases Category
See all allowed petitions in Civil Cases Category
See all Dismissed petitions in Civil Cases Category
See all partially allowed petitions in Civil Cases Category