SC seeks Centre’s diplomacy to implement order against Kenyan national

The top court granted permanent custody of an 11-year-old boy to his Indian-origin father Perry Kansagra, having a Kenyan passport, on October 28 last year. While doing so, the court required the father to obtain a “mirror order” from the Kenyan court reflecting the conditions and assurances arrived at between the parents – Perry and Smriti, before the Supreme Court.

On Thursday, the court was informed that on May 21, the high court of Kenya refused to recognise the order passed by the Supreme Court. The HC of Kenya situated at Nairobi said, “The court makes a finding that the judgment from the Supreme Court of India, being from a superior court of a non-reciprocating country, and further being one in proceedings in connection with the custody or guardianship of a child, is not registrable in this court.”

Even the father, a permanent resident of Kenya, failed to appear during the proceedings giving an impression to the court that they had been misled. In December last year, the Supreme Court was informed that on November 9, 2020, the Kenyan court had registered the judgment of the Supreme Court.

With the child now outside Indian jurisdiction and the father in clear breach of the Supreme Court’s order, the bench of Justices UU Lalit and Ajay Rastogi requested Solicitor General Tushar Mehta to provide assistance in the case.

The bench said, “The boy is a Kenyan citizen, but is a ward of this court as we were exercising loco parentis (in place of parents) jurisdiction. For the first time, we are being told that the Kenyan court has not recognised our order. Mirror orders are generally recognised by all countries. We were earlier told that it has been registered. With this new development, this man (the father) is in contempt of this court. We are requesting the Union of India if this matter could be diplomatically taken up with the other country. Or else, we will have to deal with it.”

The Solicitor General sad, “At a personal level, I can ask the Indian Embassy officials at Kenya to call up the father and explain to him the situation and get him to follow the order. This matter can also be taken up diplomatically but only the Foreign Secretary will know what can be done.”

The bench asked Mehta to inform the court about any breakthrough by Tuesday. Senior advocate AS Chandhioke appearing for the mother informed the court that the conduct of her husband was in breach of his undertaking given to the court on October 30.

In December 2020, Smriti had approached the court saying that a mere “registration of Supreme Court’s judgment” was not a guarantee for enforcement. She stated that Kenya has got a Foreign Judgments (Reciprocal Enforcement) Act to make provision for enforcement of judgments given in countries outside Kenya. But India and Kenya are not reciprocating countries and hence, provisions of this Act will not apply. Further, Section 3(3)(e) of this Act states that “nothing in this Act will apply to proceedings in connection with custody or guardianship of children.”

But the top court dismissed this application and said, “Registration of judgment is sufficient compliance of the direction to obtain a mirror order issued from a competent court in Kenya.”

The Court realized there was no means now to get in touch with the father who has not authorised his counsels to appear in the case anymore. The bench said, “This man has led us up the garden path and misled us. We will wait for the Solicitor General to have a word with the Embassy officials and Foreign Secretary to find a diplomatic solution. In case it does not happen, we will deal with it.”

Trans-national child custody battles involving Indian citizens have often ended up in contradictory orders being passed by courts in different countries. India is not a signatory to the Convention on Civil Aspects on International Child Abduction, 1980 and this is a chief reason why Indian courts find it difficult to enforce its orders on this aspect before foreign courts.

The couple got married in 2007 and is living separately since April 2012. The child, who enjoys dual citizenship of Kenya and the United Kingdom, is an Overseas Citizen of India. The mother had initially filed a suit restraining her husband and his family from removing the child from her custody. In this suit, the father was allowed visitation rights. Later, the boy’s father filed a Guardianship petition in a Delhi court that was allowed and later affirmed by the Delhi high court in February 2020. This order was set aside by the Supreme Court in its October 2020 judgment by a 2:1 majority.