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divorce

In child custody matters, rather than the entitlement of either of the parents, what is of paramount importance is the wellbeing and welfare of the child: Supreme Court

The appellant along with maternal grandmother of Aditya (child of both appellant and respondent) will be entitled, at the expense of the respondent to spend seven days in Kenya once a year. The directions thus contemplated that in a year, the appellant will have sufficient physical contact and interaction as well as benefit of stay with Aditya. The Court held in, Smriti Madan Kansagra v.  Perry Kansagra, (CIVIL APPEAL NO. 3559 OF 2020)

The court by majority judgment dated 28.10.2020 held that, the custody of Aditya Vikram Kansagra is handed over by his mother Smriti Madan Kansagra, to the father Perry Kansagra, subject to the directions. Wherein, the respondent was directed to obtain a mirror order from the concerned court in Nairobi to reflect the directions contained in the judgment, within a period of 2 weeks from the date of judgment. Also, Smriti will be at liberty to engage with Aditya on a suitable video-conferencing platform for one hour over the weekends; further, Aditya is at liberty to speak to his mother as and when he desires to do so. Also, Smriti would be provided with access and visitation rights for 50% once in a year during the annual vacations of Aditya, either in New Delhi or Kenya, wherever she likes, after due intimation to Perry. Not only this, Perry will bear the cost of one trip in a year for a period of one week to Smriti and her mother to visit Aditya in Kenya during his vacations. The costs will cover the air fare and expenses for stay in Kenya. However, Smriti will not be entitled to take Aditya out of Nairobi, Kenya without the consent of Perry.

On 30.10.2020, the respondent moved an application in the High Court of Kenya at Nairobi seeking registration of the Judgment and for obtaining ‘Mirror Order’

The counsel for appellant contended that, India and Kenya are not reciprocating countries and, as such, the provisions of the Act will not be applicable. In any case, by virtue of Section 3(3) of the Foreign Judgments (Reciprocal Enforcement) Act, CAP, 43 enacted by the Parliament of Kenya, nothing in the Act will apply to proceedings in connection with “the custody or guardianship of children”.

However, learned Advocate for the respondent has relied upon the provisions of the Judicature Act of Kenya which empower the High Court of Kenya to exercise jurisdiction in accordance with common law principles and doctrine of equity and upon Article 2(5) of the Constitution of Kenya, 2010, which recognises the general rules of international law as forming part of laws of Kenya.

The court was of the view that, “the Order passed by the High Court of Kenya respectfully deserves and must be shown due deference. Nothing turns on the form and format of the Order, so long as the High Court of Kenya was apprised of all the facts, and the context in which it was approached, for compliance of the directions passed by this Court in the Judgment. Since the registration of the Judgment passed by this Court has been done under the orders of the High Court of Kenya, we accept the submissions made by the respondent. In our view, the registration of the Judgment is sufficient compliance of the direction to obtain a Mirror Order issued from a competent court in Kenya. The fact that the registration was given at the instance of the respondent and the unconditional undertaking given by the respondent to this Court, are sufficient compliance of the directions issued by this Court.”

Conclusively, it was held that, considering the totality of circumstances, including his age at present the appellant was entitled in terms of the directions of the High Court, to have the temporary custody of Aditya throughout the winter and summer vacations. But, that entitlement is now reduced to only 50% of one of the vacations. Also, the e-mail Id. of the appellant as well as her mobile details shall be furnished to Aditya’s school, so that the appellant shall be kept in touch with the developments, and, the appellant be given liberty to meet Aditya on his Birthdays. And thus, the appeal stands disposed off.

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