Supreme Court Recalls Child Custody Order After Fraudulent Conduct by Father

The case of Smriti Madan Kansagra vs. Perry Kansagra has been a significant legal battle concerning the custody of their minor child, Aditya Vikram Kansagra. The Supreme Court of India had initially ruled in favor of Perry Kansagra, granting him custody of Aditya. However, upon discovering fraudulent misrepresentations made by Perry, the Supreme Court took the extraordinary step of recalling its own judgment and initiating legal proceedings against Perry Kansagra. This case underscores the importance of honesty in legal proceedings, particularly in child custody disputes.

This blog post explores the legal aspects of the case, the arguments presented by both parties, the Supreme Court’s reasoning, and the final verdict, ensuring clarity for the general public.

Background of the Case

Perry Kansagra, a Kenyan citizen of Indian origin, married Smriti Madan Kansagra, an Indian citizen, in 2007. Their son, Aditya, was born in New Delhi in 2009. The couple initially lived in Kenya, but Smriti returned to India with Aditya in 2012, leading to a prolonged legal battle over custody.

Smriti filed a suit in the Delhi High Court seeking to restrain Perry from removing Aditya from her custody. The court granted an interim injunction in her favor. Subsequently, Perry filed a guardianship petition in the Family Court at Saket, New Delhi, seeking permanent custody of Aditya.

After extensive legal proceedings, the Supreme Court of India, on October 28, 2020, ruled in Perry’s favor, granting him custody of Aditya, provided that he obtained a mirror order from a Kenyan court, ensuring that the Indian court’s conditions would be upheld in Kenya.

Legal Proceedings and Arguments

Petitioner’s (Smriti Madan Kansagra) Arguments:

Smriti argued that she had been the primary caregiver of Aditya since birth and that his welfare would be best served by remaining with her in India.
She contended that Perry’s promise of obtaining a mirror order in Kenya was not reliable, and there was a risk that Aditya’s custody could become a matter of prolonged litigation in Kenyan courts.
Smriti highlighted that Perry had misrepresented facts and could not be trusted to comply with Indian court orders.

Respondent’s (Perry Kansagra) Arguments:

Perry argued that as Aditya’s biological father, he had the right to raise his son in his homeland.
He provided an undertaking that he would comply with all conditions, including obtaining a mirror order in Kenya.
He emphasized that his financial status would enable him to provide a better future for Aditya in Kenya.

Supreme Court’s Judgment on October 28, 2020

The Supreme Court ruled in favor of Perry, granting him custody of Aditya, subject to the following conditions:

Perry was required to obtain a mirror order from a Kenyan court within two weeks.
Smriti was granted visitation rights, including weekly Skype calls and the ability to visit Aditya during school vacations.
Perry was ordered to deposit INR 1 crore as a security amount to ensure compliance with the court’s conditions.

Fraudulent Conduct by Perry Kansagra

Despite the Supreme Court’s ruling, Perry failed to comply with the conditions set by the court. Specifically, he did not obtain a valid mirror order from a Kenyan court.

Later, Smriti discovered that Perry had misrepresented facts in court. The High Court of Kenya ruled that it could not enforce the Supreme Court of India’s judgment, effectively nullifying the mirror order requirement. However, Perry failed to inform the Supreme Court of India about this development.

Smriti filed an application before the Supreme Court of India in July 2021, seeking enforcement of her visitation rights, alleging that Perry was actively obstructing her access to Aditya. She also presented evidence that Perry had:

Blocked communication between Aditya and Smriti.
Failed to facilitate visitation during summer vacations.
Ignored court directives, including weekly Skype calls.

Supreme Court’s Final Ruling on October 7, 2021

Upon reviewing the new evidence, the Supreme Court of India found that Perry had engaged in fraudulent conduct and had deliberately misled the court. The court made the following observations:

Perry had violated the solemn undertakings he gave to the court.
His fraudulent actions rendered the original judgment null and void.
Custody orders granted in his favor were based on false promises and misrepresentation.
As a result, the Supreme Court recalled its judgment and restored the status quo.

The Supreme Court took stringent actions against Perry:

Declared the custody of Aditya with Perry as illegal and directed that Aditya be returned to Smriti.
Ordered the Central Bureau of Investigation (CBI) to register a case against Perry for abduction and contempt of court.
Directed the Ministry of External Affairs and the Indian High Commission in Kenya to assist Smriti in bringing Aditya back to India.
Issued a show-cause notice to Perry for contempt of court.

Conclusion

This case sets a strong legal precedent in child custody battles, particularly in cross-border disputes. The Supreme Court’s decision to recall its judgment due to Perry’s fraudulent actions underscores the importance of honesty and compliance in legal proceedings.

For parents engaged in international child custody disputes, this case highlights the significance of adhering to legal commitments and the severe consequences of misleading the court.

The Supreme Court of India has reinforced the principle that fraud unravels all, ensuring that justice prevails even after a judgment has been passed.

Petitioner Name: Smriti Madan Kansagra.
Respondent Name: Perry Kansagra.
Judgment By: Justice Uday Umesh Lalit, Justice Hemant Gupta, Justice Ajay Rastogi.
Place Of Incident: New Delhi, India.
Judgment Date: 07-10-2021.

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