Father fraudulently secures son’s custody, SC orders CBI to bring child back from Kenya

The Supreme Court on Thursday ordered the CBI to register a criminal case against a Kenyan national, who apparently secured the custody of his 11-year-old son by fraudulently obtaining court orders in his favour last year.

The top court also directed the CBI to secure the child’s custody and hand him over to his mother.

A bench comprising justices U.U. Lalit, Hemant Gupta and Ajay Rastogi said: “It is true that the child is now in Kenya. But he was taken to Kenya only on the basis of fraudulently obtained orders from this court.”

The bench noted that Perry Kansagra, the father of the child, made false and fraudulent representations before it to secure the child’s custody.

The bench said: “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.”

Ordering a CBI probe into the matter, the bench said: “The Central Bureau of Investigation, New Delhi, through its Director is directed to initiate appropriate measures by registering criminal proceedings against Perry and secure and entrust the custody of the child to Smriti (the mother).”

The bench noted that there is concrete material and reason to believe that it was a well-planned conspiracy on the part of Perry to persuade it to pass orders in his favour and allow him the custody of his son and then turn around and defy the orders passed by it.

“The Secretary in the Ministry of External Affairs, government of India, and the Indian Embassy in Kenya are directed to ensure that all possible assistance and logistical support is extended to Smriti in securing the custody of the child,” the bench noted in its 71-page judgment.

In October last year, the Supreme Court had granted the custody of the 11-year-old child to his Kenya-based father, after he expressed his desire to live with him.

The top court was informed that on May 21, the Kenyan high court had refused to recognise the order passed by it. The high court had said that the judgment being from a superior court of a non-reciprocating country, and in connection with the guardianship of a child, was not registrable in that court.

In December last year, the top court was informed that on November 9, the Kenyan court had registered its judgment. In December 2020, the mother had moved the top court saying that a mere registration of its judgment cannot be considered as a guarantee for enforcement.

She contended that India and Kenya are not reciprocating countries, therefore provisions of Kenya’s Foreign Judgments (Reciprocal Enforcement) Act will not apply. However, her plea was dismissed. Later, the mother again moved the top court seeking a CBI probe. Senior advocate Sonia Mathur appeared on behalf of the mother.

The top court on Thursday recalled its judgments passed in October and December last year, and ruled that the custody of the child with Perry is illegal and ab initio void.

“Issue notice to Perry as to why proceedings in contempt jurisdiction be not initiated against him for having violated the solemn undertakings given to this court, returnable on November 16, 2021. The registry is directed to register a suo motu contempt case and proceed accordingly,” the top court said.