Supreme Court: The bench of UU Lalit, Indu Malhotra and Hemant Gupta, JJ has, in a 2:1 verdict, has transferred the custody of an 11-year-old child to his father, an Indian-origin business tycoon living in Kenya, from his mother with whom he has been living since birth.

The decision was taken based on an overall consideration of the holistic growth of the child determined on the basis of his preferences as mandated by Section 17(3), the best educational opportunities which would be available to him, adaptation to the culture of the country of which he is a national, and where he is likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life.

However, to safeguard the rights and interest of the mother, the Court directed the father to obtain a mirror order from the concerned court in Nairobi, which would reflect the directions contained in this Judgment.

What is a mirror order?

Mirror orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time and has conducted an elaborate enquiry on the issue of custody. The court may direct the parties to obtain a “mirror order” from the court where the custody of the child is being shifted. Such an order is ancillary or auxiliary in character, and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child.In international family law, it is necessary that jurisdiction is exercised by only one court at a time. These orders are passed keeping in mind the principle of comity of courts and public policy.

“The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired.”

The judgment of the court which had exercised primary jurisdiction of the custody of the minor child is however not a matter of binding obligation to be followed by the court where the child is being transferred, which has passed the mirror order. The judgment of the court exercising primary jurisdiction would however have great persuasive value.

Indu Malhotra, J (for herself and UU Lalit, J)

As per Section 17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will.

Hence, in view of the various personal interactions which the courts have had at different stages of the proceedings, from the age of 6 years, till the present when he is now almost 11 years old, the Court arrived at the conclusion that it would be in his best interest to transfer the custody to his father.

The Court found the child to be bright and articulate for his age, who was quite confident, and expressed with clarity about his inclinations and aspirations. The child was deeply attached to his mother and maternal grandmother, with whom he lives, and at the same time exhibited a strong and deep bond with his father, which had evidently grown by the regular visitations of his father and grand-parents every month during the past 8 years. He expressed a strong interest for going to Kenya for his education, and for higher studies to the U.K. He expressed a keen interest to travel overseas, for which he had got no opportunity so far. The Court, hence, noticed,

“If his preferences are not given due regard to, it could have an adverse psychological impact on the child.”

The court also noticed that the child is the heir apparent of a vast family business established by the paternal family in Kenya and U.K. Since the businesses of the paternal family are primarily established in Kenya and the U.K., it would be necessary for the child to imbibe and assimilate the culture and traditions of the country where he would live as an adult, learn the local and adapt himself to the living conditions and surroundings of the country.

“Since the child is still in his formative years of growth, it would be much easier for him to imbibe and get acclimatized to the new environment.”

The Court, hence, held that the minor child has been in the exclusive custody of his mother from birth till adolescence, which is the most crucial formative period in a person’s life and having completed almost 11 years in her exclusive custody, he is now entitled to enjoy the protection and care of his father, for his holistic growth and development. However, mother’s continued participation in the growth and development of the child would be crucial.

Hemant Gupta, J (Dissenting)

Disagreeing with Justice Malhotra’s opinion, Justice Gupta held that the child should be given liberty to choose his destination after he comes out of age.

He noticed that the question of where the welfare of the child lies narrows down to the mother who has stopped practicing law to nurture child as against the father who travels quite substantially every month.

“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. All things being equal, the presence of grandparents can tilt in balance but where a mother who is available 24/7 for guiding, caring and nurturing a growing child as against a father who needs to travel outside his normal place of stay frequently, I find that the mother is more suitable in whose hands the welfare of the child is secured.”

In his judgment, Justice Gupta also highlighted the aspect that the conduct of the father and his parents was inclined towards pampering the child inasmuch as an iPhone was given to the child when he was of six years of age. They have pampered the child by giving him 4-5 iPads. The mother had also deposed that child had once broken one newly purchased iPad but the father bought another iPad for the child immediately without any counselling to value the things purchased.

“These are instances which suggests pampering the child. From the controlled and supervised household of the mother, if the custody is given to the father, the sudden exposure to the materialistic things have the potency to derail the studies and wellbeing of the growing child.”

He, hence, held that that considering that the child has grown up in India in the last 11 years, the child would be exposed to physical and psychological harm, if he is shifted to Kenya amongst fellow students and teachers but without any friends. He would be taken care of by nannies, maids with pampering by the grandparents and the father. Hence, the child should remain with the mother.

[Smriti Madan Kansagra v. Perry Kansagra,  2020 SCC OnLine SC 887, decided on 28.10.2020]

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