Custody Of Child Obtained Fraudulently Is Void Ab Initio

Key Takeaways

• The case of Smriti Madan Kansangra v. Perry Kansangra deals with a guardianship petition filed by Perry Kansagra , father of minor, under the Guardianship and Wards Act 1890, before the District Court.
• Both the parents sought custody, but the High Court granted custody to the father. This was challenged by the mother in the current case.
• The Supreme Court found that the father’s custody claim was based on false facts and it was the court’s duty to reverse the order granting him custody.

Facts

• The minor’s mother is an Indian. Initially the parents were settled in Kenya, but in 2009 the mother and the child returned to Delhi.
• The mother filed a suit against Perry and his parents, seeking an injunction to declare him and his relatives incompetent to have contact with the minor without permission. The High court gave an ex parte interim order restraining him from removing the minor from the mother’s custody.
• In 2012, he filed a guardianship petition seeking legal guardianship. The parties consequently agreed to settle the suit in Family court and the other petitions were disposed. The Family court granted minor’s custody to Perry. This decision was challenged by the mother, but the HighCourt dismissed the petition. By a separate order, visitation rights were granted to the mother.
• The High Court order was challenged by the mother in the Supreme Court. The three-judge bench gave a 2:1 split decision in favour of Perry keeping the custody. Justice Hemant dissented in favour of the mother.
• The mother consequently filed an application saying she was being prevented from meeting the child, and that Perry’s mirror order from the High Court of Kenya is forged.

Supreme Court’s Observation

• The Supreme Courtsaw that though at every point Perry provided solemn undertakings to the courts, they were blatantly violated, and the very jurisdiction of the Indian Court was challenged, despite Perry submitting himself to the Indian Courts.
• This conduct on the prima facie can be said “to be contumacious calling for an action in contempt jurisdiction”. Further, omission of material facts also shows he approached the court with unclean hands.
• Since the fraudulent representations made by Perry were the foundation on which the court gave him custody, the court felt it is their duty to nullify the effect of that order.
• The court considered to be within its power to nullify orders and take jurisdiction to ensure the situation is handled, after which an appropriate decision can be taken in ‘parenspatriae’ jurisdiction.

Order of the Court

• The judgement and order giving Perry custody were recalled.
• The guardianship petition filed by Perry in the district court, seeking permanent custody was dismissed. The custody of the minor with Perry was declared to be illegal and ab initio void
• The CBI was directed to initiate criminal proceedings against Perry and restore custody of child to the mother. Further the Secretary, Ministry of External Affairs, Government of India, New Delhi and the Indian Embassy in Kenya were to provide any assistance required for the same.
• The Court issued a notice to Perry about why proceedings in contempt jurisdiction are not initiated against him for having violated the solemn undertakings given to this Court.

Questions

• What is an ex parte order?
• Who is ultimately given the custody of the child?