Case BriefsSupreme Court

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.

Case BriefsSupreme Court

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]

Case BriefsSupreme Court

Supreme Court: In a case dealing with the custody of a 7-year-old, the 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ has said that mere fact that a mother is looking after the child with the assistance of her parents, does not detract from her role and responsibility as a mother.

In the present case, ever since the appellant and the respondent started living apart in 2016, the child has been in the care and custody of the appellant, his mother who was living in Bengaluru. The appellant, upon being temporarily transferred to Singapore by her employer, she sought for the child’s passport which was in possession of the respondent, the father. This is when the respondent filed an application for restraining the appellant from taking the child out of Bengaluru.

The respondent contended that the child is in the custody of the parents of the appellant in Bengaluru and should remain with them. Alternatively, he submitted that he would take charge of the child.

On this the Court noticed that while the parents of the appellant may have volunteered at least temporarily to relocate from NOIDA to Bengaluru to help the appellant in looking after the child, the respondent cannot be heard to assert that the child must continue to remain in Bengaluru with the maternal grand-parents.

“For the respondent to insist that the court should direct the continued presence of the child under the care of the maternal grand-parents who have come to Bengaluru and stay in a rented accommodation obtained by the appellant, does not appear to be fair.”

The Court was of the opinion that the fact that the parents of the appellant have moved to Bengaluru to help their daughter, does not transfer the custody of the child, either as a matter of law or fact, from the appellant to the maternal grand-parents.

It also said that there was no sufficient material to indicate that the respondent was in a position to look after the child on his own, by disturbing a position which has held the field since 2016. When the spouses were together, the child lived and grew up in the care of both the parents. Since 2016, the appellant has taken the responsibility for the welfare of the child.

Further, during the course of the interaction on the video-conferencing platform, the child indicated his desire to reside with his mother in Singapore. The Court, hence, noticed

“While the child is attached to the respondent, he has indicated, in no uncertain terms, his desire to live with his mother. The appellant is gainfully employed in Singapore and her desire that she should be allowed to take the child with her is not an artifice. The appellant, as the mother of the child, has been continuously with the child since his birth, despite the demands of her employment.”

Noticing that the interests of the child are best subserved by ensuring that both the parents have a presence in his upbringing, the Court said that the respondent, as the father, is entitled to have adequate rights of access and visitation as a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security.

[Ritika Sharan v. Sujoy Ghosh,  2020 SCC OnLine SC 878, decided on 28.10.2020]

Case BriefsSupreme Court

Supreme Court: Showing dismay over a case where two minors were forced to stay in a Boarding School due to an ongoing marital dispute between their parents, the bench of AM Khanwilkar and Ajay Rastogi, JJ has said,

“the rights of the child need to be respected as he/she is entitled to the love of both the parents. Even if there is a breakdown of marriage, it does not signify the end of parental responsibility. It is the child who suffers the most in a matrimonial dispute.”

The Court as hearing a custody battle involving 2 children wherein the Court was asked to decide if custody should be given the father and paternal grandparents of the children, the Court noticed that  because of a warpath of the couple, both the paternal grandparents died during pendency of the proceedings. Urging the litigating parties to introspect and take stock of their deeds and to find out a reasonable amicable solution of the on­going matrimonial discord to secure peace and of their better future, the Court said,

“It is an ideal situation where the grandparents remain in the company of their children and also of their grandchildren, but very few are fortunate to have this pleasure in the fag end of their life. In the instant case, the grandparents were not only deprived of love and affection of their children but also of their grandchildren and because of this matrimonial tussle between the parties, they have lost their lives.”

In the present case, the High Court of Delhi, in the first instance, made effort after holding a separate and joint session with the parents along with the children but nothing fruitful came forward and when the litigation came to the Supreme Court, tireless efforts were made by it keeping in view the paramount interest of the children. However, the efforts made by this Court could not bring any congeniality between the spouse and the Court was constrained to pass an Order keeping in view the paramount interest of the children to place both the children in boarding school as it was not in their best interest to continue with either parent. On the 2017 order, the Court said that,

“it would always remain in the interest of the parties to resolve these disputes amicably sitting across the table but unfortunately the ego of the warring parents come forward and the sufferings of the children are shadowed over it.”

The father of the children submitted before the Court that the guardianship of both the minor children be handed over to him as they are living separately from both the parents for quite some time and if he is unable to persuade this Court in taking the custody of the minor children, liberty may be granted to him to file a separate guardianship petition before the competent authority and the interim arrangement made by this Court may remain subject to the outcome of the stated petition, if any, being filed by either party regarding custody of the minor children.

The mother, on the other hand, argued that both the paternal grandparents of the children have recently passed away and there is no one who may have a positive influence on the children and who may contribute and ensure their well­being and cultural growth.Further, there is no female member in the house to look after the growing daughter at present and at least she may be permitted by the school administration to have a glimpse of her beloved children to which she is entitled for under the law as their mother.

After taking note of all the submissions and the facts of the case, the Court held that the interim arrangement which has been made by this Court vide its Order dated 7th September, 2017 and orders passed thereafter shall continue with a liberty to the parties to file independent proceedings for the custody or guardianship of the minor children before the competent Court of jurisdiction which, if instituted, may be decided independently in accordance with law and that alone would be in the best interest of the children.

The Court, further, clarified that

“if such an application is filed by either of the party, that may be decided by the Court independently without being influenced/inhibited by the observations made in   the instant proceedings expeditiously in accordance with law.”

[Saumitra Kumar Nahar v. Parul Nahar, CIVIL APPEAL NO(S).1670 OF 2020,