SC stresses on importance of mirror orders in interjurisdictional child custody matters. Read what a mirror order is

Supreme Court: The bench of UU Lalit, Indu Malhotra and Hemant Gupta, JJ, explaining the concept of a mirror order, has said,

“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.”

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 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.

The said explanation came in a 2:1 verdict, where Indu Malhotra, J, writing the majority judgment for herself and UU Lalit, J, 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.

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.

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

Read the full report on why the custody of the child was transferred to his father and why Justice Gupta disagreed with the majority opinion here.

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