Case: SMRITI MADAN KANSAGRA Vs. PERRY KANSAGRA

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. 11. Insofar as the matter mentioned at placitum a is concerned, it is submitted by Mr. Divan, learned Senior Advocate that the Family Court and the High Court had granted certain reliefs to the appellant even while granting custody to the respondent. A comparative chart of the directions issued by the High Court and those in the Judgment has also been presented as under:- table 12. It is submitted that the entitlement of the appellant in terms of the order issued by the High Court was not under challenge before this Court. Neither any substantive appeal was filed by the respondent nor any cross objections were preferred and, as such, said entitlement could not be reduced or whittled down. It is submitted that 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. 13. It is true that there was no appeal or any challenge on part of the respondent insofar as the temporary custody during two vacations are concerned. However, that direction was modified by this Court exercising parens patriae jurisdiction which is why the expression in supersession of the Orders passed by the courts below was used in paragraph 20 of the Judgment. Requiring Aditya to travel to India and spend the entirety of his two vacations spreading over a period of three months, was considered to be causing hindrance to his normal educational and other activities. Aditya is a bright child of 11 years. In the coming years, his activities on the academic side are likely to increase substantially since he will be required to study under the I.B. curriculum, and learn the local language. As he grows, his horizons are going to be wider. 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. Therefore, considering the totality of circumstances, including his age at present, it was considered appropriate to grant half of one vacation with the appellant, which is sufficient and serves the desired purpose. 14. In terms of the directions issued by this Court, the appellant along with maternal grandmother of Aditya 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. 15. In the circumstances, subject to the discussion with regard to the matter at Placitum b, the submissions under first segment are rejected. 16. Insofar as the directions sought under the second segment are concerned, Mr. Mehta, learned Counsel for the respondent has welcomed the suggestions of furnishing school report and activities report of Aditya to the appellant. It is also accepted that the respondent shall keep the appellant informed about parents-teachers meetings, and about other functions and activities in the school, and that the appellant will be at liberty to visit Adityas school, and attend school events and interact with school teachers. In order to facilitate the interaction of the appellant on these aspects, the e-mail Id. of the appellant as well as her mobile details shall be furnished to Adityas school, so that the appellant shall be kept in touch with the developments. It is also agreed that appellant shall be informed in case Adityas school is changed on any future date. 17. Placitum a of directions sought under the third segment is in addition to the one prayed for under placitum a of the first segment. On one hand, the appellant desires the temporary custody of Aditya all through Easter, Winter and Summer vacations, and seeks directions that she be allowed to visit Kenya every two months at the expenses of the respondent; while on the other hand, the anxiety and apprehension expressed by the respondent is that repeated visits to India all through the vacations will not allow Aditya sufficient time for his activities and pursuits. Since we have rejected the case of the appellant for having temporary custody all through the summer and winter vacations, we do not accept the present suggestion which is, therefore, rejected. Similarly, it will not be possible to pass a direction that the appellant be allowed to visit Kenya every two months at the cost and expense of the respondent. If the appellant chooses on her own to go to Kenya, she will certainly be free to do so. But, putting an obligation upon the respondent to finance her trips, would not be appropriate. We, therefore, reject the submission. With regard to placitum c, the matter will be dealt with separately hereafter With regard to the matter at placitum d, it must be stated that in accordance with the directions issued in paragraph 20 of the Judgment, Aditya will be at liberty to speak to his relations and friends. Therefore, no further directions in that behalf are called for. 18. We now turn to the directions sought under the fourth segment. It is accepted by Mr. Mehta, learned counsel for the respondent that the respondent will always keep the appellant informed about Adityas health and medical issues, and will certainly share his medical reports with the appellant; and that in case of any medical emergency, the appellant shall always be kept informed. Placitum b under this segment prays that the matter be kept pending and Aditya be directed to be produced before this Court for an evaluation every six months for next four years.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. We will deal with the matter mentioned at placitum a under the first segment after having dealt with other aspects under said segment.(i) With regard to the matter at placitum b, the learned counsel for the respondent has fairly accepted the suggestion.(ii) With regard to the matter at placitum c, as against 10 minutes a day, what has been granted is one hour over the week end. Thus, as against 70 minutes in a week, what has been granted is 60 minutes over the weekends which will be sufficiently long and a comprehensive interaction. It has also been directed that the child will be at liberty to speak to his mother, as and when he desires to do so. Therefore, in our view, the directions issued by this Court with regard to this issue do not call for any modification.Though, we accept the submission made by the learned counsel for the respondent, it is hereby clarified that paragraph 3 of the undertaking given by respondent dated 02.03.2020 to the High Court shall continue to be operative, in addition to the undertaking given to this Court.(iv) In the context of the matter mentioned against placitum e, it must be stated that this Court did not deem it appropriate to bind the paternal grandmother of Aditya, because of the various other directions issued in the Judgment, including the one requiring the respondent to obtain a Mirror Order.The High Court had not insisted upon furnishing of any Mirror Order and, therefore, the direction to have the affidavit of the grandmother who is an Indian citizen, was issued. However, the direction to obtain a Mirror Order was taken to be sufficient security by this Court, to take care of any apprehension that the respondent may not fulfil the obligations cast upon him by the Judgment.10. Having considered the rival submissions, in our view, 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.13. It is true that there was no appeal or any challenge on part of the respondent insofar as the temporary custody during two vacations are concerned. However, that direction was modified by this Court exercising parens patriae jurisdiction which is why the expression in supersession of the Orders passed by the courts below was used in paragraph 20 of the Judgment. Requiring Aditya to travel to India and spend the entirety of his two vacations spreading over a period of three months, was considered to be causing hindrance to his normal educational and other activities. Aditya is a bright child of 11 years. In the coming years, his activities on the academic side are likely to increase substantially since he will be required to study under the I.B. curriculum, and learn the local language. As he grows, his horizons are going to be wider. 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. Therefore, considering the totality of circumstances, including his age at present, it was considered appropriate to grant half of one vacation with the appellant, which is sufficient and serves the desired purpose.14. In terms of the directions issued by this Court, the appellant along with maternal grandmother of Aditya 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.15. In the circumstances, subject to the discussion with regard to the matter at Placitum b, the submissions under first segment are rejected.16. Insofar as the directions sought under the second segment are concerned, Mr. Mehta, learned Counsel for the respondent has welcomed the suggestions of furnishing school report and activities report of Aditya to the appellant. It is also accepted that the respondent shall keep the appellant informed about parents-teachers meetings, and about other functions and activities in the school, and that the appellant will be at liberty to visit Adityas school, and attend school events and interact with school teachers. In order to facilitate the interaction of the appellant on these aspects, the e-mail Id. of the appellant as well as her mobile details shall be furnished to Adityas school, so that the appellant shall be kept in touch with the developments. It is also agreed that appellant shall be informed in case Adityas school is changed on any future date.17. Placitum a of directions sought under the third segment is in addition to the one prayed for under placitum a of the first segment. On one hand, the appellant desires the temporary custody of Aditya all through Easter, Winter and Summer vacations, and seeks directions that she be allowed to visit Kenya every two months at the expenses of the respondent; while on the other hand, the anxiety and apprehension expressed by the respondent is that repeated visits to India all through the vacations will not allow Aditya sufficient time for his activities and pursuits. Since we have rejected the case of the appellant for having temporary custody all through the summer and winter vacations, we do not accept the present suggestion which is, therefore, rejected.Similarly, it will not be possible to pass a direction that the appellant be allowed to visit Kenya every two months at the cost and expense of the respondent. If the appellant chooses on her own to go to Kenya, she will certainly be free to do so. But, putting an obligation upon the respondent to finance her trips, would not be appropriate. We, therefore, reject the submission.With regard to placitum c, the matter will be dealt with separately hereafterWith regard to the matter at placitum d, it must be stated that in accordance with the directions issued in paragraph 20 of the Judgment, Aditya will be at liberty to speak to his relations and friends. Therefore, no further directions in that behalf are called for.18. We now turn to the directions sought under the fourth segment. It is accepted by Mr. Mehta, learned counsel for the respondent that the respondent will always keep the appellant informed about Adityas health and medical issues, and will certainly share his medical reports with the appellant; and that in case of any medical emergency, the appellant shall always be kept informed. Placitum b under this segment prays that the matter be kept pending and Aditya be directed to be produced before this Court for an evaluation every six months for next four years.