Mirror order in transnational custody of a minor child: Supreme Court

It was for the interest of the minor child to seek ‘mirror order’ from the foreign competent court in case it dealt with transnational custody. The seeking of the same order from the foreign competent court is termed as ‘mirror order’. This remarkable judgement was passed by the Supreme Court in the matter of Smriti Madan Kansagra versus Perry Kansagra [Civil appeal No. 3559 of 2020] which was headed by Justice Indu Malhotra.

The appeal was filed by the mother of the child under section- 7, 8, 10, and 11 of the Guardian and ward act, 1890 for the custody of the minor child. The child held a dual citizenship of Kenya and UK since his father had a vast business in UK and Kenya. The mother being unsatisfied with the judgement passed by the Delhi High Court made an appeal to this court.

The court contented that “it is a well­ settled 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 court contended that no orders or judgements would be passed in the lights of the matrimonial conflict and counter allegations between the two parties by relying on the judgement passed in the case of Rosy Jacob v. Jacob A Chakarmakkal 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.”

The court remarked that they were aware of the fact that the minor had dual passports, that the child was bright and articulate for his age, who was quiet confident and expressed with clarity about his inclination and aspirations. Since the child was emotionally balanced and was attached to his mother and maternal grandmother along with his father and paternal grandparents who expressed his keen desire to visit Kenya for his education and UK for his higher studies.

The following remarks were made by the court that “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” and “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.”

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