Guardian and Wards Act, 1890 – Custody of minor child – Obtained by fraud – Contempt of Court – Guardianship petition filed by father (of Indian origin) settled in Kenya for custody of the minor child before Family Court, New Delhi – Allowed – Affirmed by High Court – Undertaking given by him to submit to the jurisdiction of Indian Courts – High Court’s order challenged by mother – Appeal dismissed by majority judgment of Supreme Court dtd. 28.10.20 – Custody of the child handed over to the father subject to his obtaining mirror order from the concerned court in Nairobi reflecting the directions contained in the said judgment – Undertaking filed to abide by the directions contained in the majority decision – Originating Summons filed by him in the High Court of Kenya at Nairobi seeking registration of the judgment dtd.28.10.20 and for obtaining mirror order – Registration granted vide order dtd.09.11.20 – Mother filed M.A seeking modification of certain directions issued in paragraph 20 of the majority judgment – Application disposed of vide order dtd. 08.12.20 – Undertaking given by the father in Supreme Court to abide by the said order – Child taken to Kenya – Vacation access denied to the mother – Father also filed petition in Kenya inter alia challenging the jurisdiction of the Indian Courts – Held: At no stage the father brought the development to the notice of Supreme Court that the Summons moved by him seeking registration of the judgment dtd.28.10.20 was subsequently dismissed by the High Court of Kenya at Nairobi – It was only on the basis of the solemn undertakings given by him and the order dtd.09.11.20 passed by the High Court of Kenya at Nairobi which was projected to be a mirror order in compliance of the directions issued by this Court, that the custody of the child was directed to be handed over to him – Further, order dtd.08.12.20, made it clear that the undertaking given to the High Court would continue to be operative, in addition to the undertakings given to this Court – However, such undertakings were not only flagrantly violated but a stand is now taken challenging the very jurisdiction of the Indian Courts – Orders obtained by playing fraud upon the Court – A party approaching the Court must come with clean hands, more so in child custody matters – Non-disclosure of material facts by the father at relevant junctures shows that he approached the Indian Courts with unclean hands – Judgment dtd.28.10.20 and the order dtd.08.12.20 recalled – Guardianship Petition filed by the father is dismissed – Custody of the child with him is illegal and void ab initio – Notice for contempt issued – Further directions issued.
Guardian and Wards Act, 1890 – Parens patriae jurisdiction – Held: Wherever the custody of a minor is a matter of dispute, the primary custody of the minor in parens patriae jurisdiction is with the Court which may then hand over the custody to the person who would be the most suitable – Any action initiated to obtain such custody from the Court with fraudulent conduct and design would be a fraud on the process of the Court.
Disposing of the miscellaneous application and connected interim applications, the Court
HELD: 1.1 The documents and the developments show:
(i) ‘P’ (the father) had given an unequivocal undertaking to the High Court that he would submit to the jurisdiction of the Indian Courts. He had also given a solemn undertaking to this Court.
(ii) In response to a specific submission raised in Miscellaneous Application No.2140 of 2020 (quoted in paragraph 16), it was submitted by ‘P’ that he had subjected himself to the jurisdiction of this Court. While dealing with the rival submissions in the Order dated 8.12.2020, this Court made it clear that the undertaking given by ‘P’ to the High Court would continue to be operative, in addition to the undertaking given to this Court.
(iii) The Judgment dated 28.10.2020 had called upon ‘P’ to obtain a ‘Mirror Order’ from the concerned Court in Nairobi to reflect the directions contained in the Judgment dated 28.10.2020. Thereafter, the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi along with the relevant application moved by ‘P’ seeking registration of the Judgment dated 28.10.2020, was filed in this Court.
(iv) There was a dispute whether the registration granted vide order dated 9.11.2020 by the High Court of Kenya at Nairobi amounted to fulfilling the requirement of a “Mirror Order”. In paragraph 10 of the Order dated 8.12.2020, this Court observed that the registration of the Judgment of this Court by the High Court of Kenya at Nairobi was sufficient compliance of the directions to obtain a “Mirror Order” issued from a Competent Court in Kenya.
(v) The Judgment dated 28.10.2020 and the Order dated 8.12.2020 passed by this Court were thus premised on the submission that the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobiwhile registering the Judgment dated 28.10.2020 passed by this Court was in fact the “Mirror Order”.
(vi) It now transpires that by a subsequent Order dated 21.5.2021, the High Court of Kenya at Nairobi in Paragraph 13 of its order observed that the judgment of this Court was not registrable and dismissed the Originating Summons dated 30.10.2020 filed by ‘P’.
(vii) At no stage ‘P’ brought this development to the notice of this Court that the Originating Summons moved by him seeking registration of the Judgment dated 28.10.2020 passed by this Court was dismissed by the High Court of Kenya at Nairobi on 21.5.2021. Having submitted to the jurisdiction of the Indian Courts it was the bounden duty of ‘P’ to keep this Court appraised of all the developments particularly when the “Mirror Order” was the fulcrum on the basis of which this Court handed over to him the custody of ‘A’ (the child).
(viii) This infraction gets more pronounced in the light of the stand taken in his Affidavit dated 5.8.2021 filed in this Court and referred to in Paragraph 22. In that affidavit ‘P’ unequivocally stated that he had not even the remotest intention to disobey the Order passed by this Court including the Judgment dated 28.10.2020. Yet, something as basic and fundamental like the Order dated 21.05.2021 was not brought to the notice of this Court.
(ix) Miscellaneous Application No.1167 of 2021 filed by ‘S’ (the mother) had annexed e-mails exchanged between her and ‘P’ and prayed that ‘P’ be directed to comply with directions regarding vacation access. In response, apart from stating that he had no intentions to disobey the orders passed by this Court, ‘P’ voiced concern about sending ‘A’ to India. Being well aware of the conditions in this Country, a solution was devised by this Court in its Order dated 11.08.2021 and certain directions to facilitate the entry of ‘A’ into and his exit from India in a safe manner were issued. Pertinently on 11.08.2021, the attention of this Court was not invited to the fact that the Situational Report dated 09.08.2021 to was made or that the matter was being looked into by the concerned authorities in Kenya.
(x) Despite clear directions issued in the Order dated 11.08.2021 ‘P’ had not taken any steps to comply with the Order. As a matter of fact, by the time the matter was taken up for further hearing on 16.08.2021, ‘P’ sought to withdraw the authorization in favour of the counsel who were all the while representing him before this Court. As disclosed in I.A. 100550 of 2021, weekend Skype meetings between ‘S’ and ‘A’ were not facilitated from the week-end of 14.08.2021 and 15.08.2021. ‘P’ also blocked all means of communications with ‘S’. Though in law the advocates who had entered appearance on behalf of ‘P’ would continue to represent him, notice was additionally directed to be served on ‘P’ through Indian embassy of Nairobi.
(xi) In the light of the defiant attitude exhibited by ‘P’ and his refusal to abide by the Orders passed by this court, ad-interim relief in terms of prayers (d) (e) and (f) made by ‘S’ in her I.A. No.100550 of 2021 was granted by this Court vide its order dated 17.08.2021.
(xii) Finally, Petition No.E301 of 2021 and – Notice of Motion were moved on behalf of ‘P’, filed in the High Court of Kenya at Nairobi on 26.08.2021. The stand taken by ‘P’ in said Petition and Notice of Motion is that it would be humiliating to compel ‘A’ to take OCI Card; that wishes of ‘A’ were not ascertained by this Court; that there was no valid Mirror Order and that the orders passed by this Court were without jurisdiction. He has prayed for declaration that there existed no valid “Mirror Order” and in the circumstances the orders passed by this Court are incapable of compliance and/or enforcement. [Para 34] [802-A-H; 803-A-H; 804-A-E]
1.2 These developments not only show the defiant and contumacious posture now adopted by ‘P’ but prima facie support the submissions of ‘S’ made in Interim Applications referred to in paragraphs 25, 27, and 28. There appears to be concrete material and reason to believe that it was a well-planned conspiracy on part of ‘P’ to persuade this Court to pass orders in his favour and allow him the custody of ‘A’ and then turn around and defy the Orders of this Court. It is fundamental that a party approaching the Court must come with clean hands, more so in child custody matters. Any fraudulent conduct based on which the custody of a minor is obtained under the orders of the Court, would negate and nullify the element of trust reposed by the Court in the concerned person. Wherever the custody of a minor is a matter of dispute between the parents or the concerned parties, the primary custody of the minor, in parens patriae jurisdiction, is with the Court which may then hand over the custody to the person who in the eyes of the Court, would be the most suitable person. Any action initiated to obtain such custody from the Court with fraudulent conduct and design would be a fraud on the process of the Court. [Paras 35, 36][804-F-H; 805-A-B]
1.3 Though, at every juncture solemn undertakings were given by ‘P’ to the High Court and this Court, such undertakings were not only flagrantly violated but a stand is now taken challenging the very jurisdiction of the Indian Courts, despite having submitted himself to the jurisdiction of the Indian Courts. Such conduct, prime facie, can certainly be said to be contumacious calling for an action in contempt jurisdiction. Moreover, the non-disclosure of material facts by ‘P’ at the relevant junctures also shows that he approached the Indian Courts with unclean hands. It was only on the basis of the solemn undertakings given by ‘P’ and the order dated 09.11.2020 passed by the High Court of Kenya at Nairobi which was projected to be a “Mirror Order” in compliance of the directions issued by this Court, that the custody of ‘A’ was directed to be handed over to ‘P’. Since the false and fraudulent representations made by ‘P’ were the foundation, on the basis of which this Court was persuaded to handover custody of ‘A’ to him, it shall be the duty of this Court to nullify, in every way, the effect and impact of the orders which were obtained by playing fraud upon the Court. This Court would therefore be well within its power and justified to recall all the orders and continue to assume jurisdiction to ensure that the situation as it prevailed prior to the passing of the orders by the Trial Court, the High Court and this Court, gets restored, whereafter appropriate decision can be taken in parens patriae jurisdiction. [Paras 39, 40][822-C-F]
1.4 It is true that ‘A’ is now in Kenya. But he was taken to Kenya only on the basis of fraudulently obtained orders from this Court. The Indian Courts which were the Courts of first contact and had complete jurisdiction over ‘A’, must continue to exercise such power and jurisdiction to correct the wrongs which occurred as a result of fraudulent conduct on part of ‘P’. It may be stated here that at every juncture, welfare of ‘A’ was and will always continue to be the primary consideration for the Indian Courts. He was interviewed by very competent and qualified Counsellors whose reports and assessments have been part of the record. ‘A’ was also interviewed by the Trial Court, the High Court and this Court. At no stage any mistreatment by ‘S’ was even remotely suggested or adverted to by ‘A’. [Para 41][822-G-H; 823-A-B]
1.5 Following directions inter alia passed: (A) The Judgment dated 28.10.2020 and the Order dated 08.12.2020 passed by this Court are recalled.
(B) The Guardianship Petition No.53 of 2012 filed by ‘P’ in the District Court, Saket, New Delhi seeking permanent custody of ‘A’ and the resultant proceedings arising therefrom including MAT APP (F.C.) No.30 of 2018 filed in the High Court, are dismissed.
(C) The Orders granting custody having been recalled, the custody of ‘A’ with ‘P’ is illegal and ab initio void.
(D) Issue Notice to ‘P’ as to why proceedings in contempt jurisdiction be not initiated against him for having violated the solemn undertakings given to this Court, returnable on 16th November, 2021. The Registry is directed to register Suo Motu Contempt Case and proceed accordingly.
(E) The Central Bureau of Investigation, New Delhi through its Director to initiate appropriate proceedings by registering criminal proceedings against ‘P’ and to secure and entrust the custody of ‘A’ to ‘S’.
(F) The Secretary, Ministry of External Affairs, Government of India, New Delhi and the Indian Embassy in Kenya to ensure that all possible assistance and logistical support is extended to ‘S’ in securing the custody of ‘A’. [Para 42][823-C-H] S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1: [1993] 3 Suppl. SCR 422; Indian Bank v. Satyam Fibres (India) (P) Ltd. (1996) 5 SCC 550 : [1996] 4 Suppl. SCR 464; United India Insurance Co. Ltd. v. Rajendra Singh (2000) 3 SCC 581 : [2000] 2 SCR 264; Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319 : [2003] 4 Suppl. SCR 543; Hamza Haji v. State of Kerala (2006) 7 SCC 416 : [2006] 4 Suppl. SCR 604; K.D. Sharma v. SAIL (2008) 12 SCC 481 : [2008] 10 SCR 454; Meghmala v. G. Narasimha Reddy (2010) 8 SCC 383: [2010] 10 SCR 47; Badami v. Bhali (2012) 11 SCC 574 : [2012] 6 SCR 75 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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