Custody Of Child Obtained By Playing Fraud On Court Liable To Be Declared Void Ab Initio : Supreme Court
The Supreme Court has recalled an order granting custody of a child to a Kenyan citizen of Indian origin after finding that he had played fraud on the court and had approached it with "unclean hands" by suppressing material facts(Smriti Madan Kansangra v. Perry Kansangra).The Court declared its earlier order granting custody to the father who played fraud as "illegal" and "ab...
The Supreme Court found that at every juncture solemn undertakings were given by Perry to the Court were not only flagrantly violated but a stand is now taken challenging the very jurisdiction of the Indian Courts, despite having submitted himself to the jurisdiction of the Indian Courts.
"Such conduct, prima facie, can certainly be said to be contumacious calling for an action in contempt jurisdiction. Moreover, the non-disclosure of material facts by Perry at the relevant junctures also shows that he approached the Indian Courts with unclean hands", said the bench.
"These developments not only show the defiant and contumacious posture now adopted by Perry but prima facie support the submissions of the mother made in Interim Applications … There appears to be concrete material and reason to believe that it was a well-planned conspiracy on part of Perry to persuade this Court to pass orders in his favour and allow him the custody of the son and then turn around and defy the Orders of this Court", the bench observed in the judgment.
The following directions were issued :
The Central Bureau of Investigation (CBI), New Delhi through its Director is directed to initiate appropriate proceedings by registering criminal proceedings against Perry and to secure and entrust the custody of Aditya to Smriti, it said.
The Secretary, Ministry of External Affairs, Government of India, New Delhi, and the Indian Embassy in Kenya are directed to ensure that all possible assistance and logistical support is extended to the mother in securing the custody of the son, it said. The Guardianship Petition filed by Perry in District Court, Saket for permanent custody of the son, and the resultant proceedings arising therefrom in the High Court are dismissed, it said.
The orders granting custody having been recalled, the custody of the son with Perry is declared to be illegal and ab initio void.
Issue notice to Perry as to why proceedings in contempt jurisdiction are not initiated against him for having violated the solemn undertakings given to this Court, returnable on 16th November 2021. The Registry is directed to register Suo Motu Contempt Case and proceed accordingly, it said.
From and out of the amount of Rs.1 crore deposited by Perry in this Court, at this stage, an amount of Rs.25 lakhs be handed over to the mother towards legal expenses incurred or required to be incurred hereafter. Rest of the money shall continue to be kept in deposit with the Registry till further orders.
Case Title : Smriti Madan Kansangra v. Perry Kansangra