The Supreme Court in its 2:1 majority judgment passed by Justices UU Lalit and Indu Malhotra granted custody of the child to the father residing in Nairobi, after noticing that although the 11 year old was close to his mother but the father and son too had a very strong and deep bond with each other which had evidently grown by the regular visitations of his father and grandparents every month during the past 8 years and noted that it is in the "best interest to transfer the custody to his father. If his preferences are not given due regard to, it could have an adverse psychological impact on the child."
However, the minority verdict by Justice Hemant Gupta emphasized that the custody of the child should be handed over to the mother, who used to be a practicing lawyer as the "question of where does the welfare of the child lie thus narrows down to the mother who has stopped practicing law to nurture child as against the father who travels quite substantially every month". He observed that this will not be in the best interest of the child considering that the father is facing a charge of manslaughter on 48 counts, and in the absence of the father, the child will be in the custody of nannies, maids and servants. The grandparents would not be able to take care of the growing needs of a young child.
Bench of Justices UU Lalit and Indu Malhotra held that in order to safeguard the rights and interests of the mother, the father should obtain a "mirror order" from the concerned court in Nairobi reflecting the directions of this judgment to "so that the rights of visitation and temporary custody are not impaired"
Brief Facts of the case (Smriti Madan Kansagra v. Perry Kansagra)
The couple got married in 2007, had the child in 2009 and got separated in 2012.
The mother filed a suit for permanent injunction restraining the father and his parents from removing the child from her custody. Several orders were passed during the pendency of this suit regarding visitation rights to the father. Subsequently the father filed a petition under Section 7 of the Guardians and Wards Act, 1860 before the Family Court at Saket in November 2012 where the custody was granted to him in 2018. The High Court in an appeal by the mother upheld the Family Court's decision. The mother again aggrieved by the judgement moved the Supreme court through an appeal.
This court directed the parties to obtain a “mirror order” from the Nairobi court where the custody of the child is being shifted.
In international family law, it is necessary that jurisdiction is exercised by only one court at a time. It would avoid a situation where conflicting orders may be passed by courts in two different jurisdictions on the same issue of custody of the minor child.
The bench emphasized that mirror orders are important, given the large number of cases arising from transnational parental abduction in intercountry marriages.
The court while deciding took into consideration various factors. These guiding factors are laid down in the case of Nil Ratan Kundu v. Abhijit Kundu (2008) and had also been stipulated in Section 17 of Guardians and Wards Act, 1860
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