In Transnational Child Custody Cases, 'Mirror Orders' From Foreign Courts Ensure Welfare Of Minor: Supreme Court [Read Judgment]

The Supreme Court applied the concept of 'mirror order' in a case involving transnational custody of a child.

When a court allows the shifting of a child to a foreign country, it may impose a condition that the parent in the foreign jurisdiction should also obtain a similar order of custody for the child from a competent court there. Such an order is called a 'mirror order'. This condition is imposed to ensure that the courts of the foreign jurisdiction are also put on notice regarding the matter and to ensure protection of the child.

In a judgment passed on Wednesday (October 28), a 3-judge bench comprising Justices UU Lalit, Indu Malhotra and Hemant Gupta(2:1 majority) applied this concept while allowing the custody of a child to a man located in Kenya(Smriti Madan Kansagra v Perry Kansagra).

The majority of Justices Lalit and Malhotra held that the father was entitled to the permanent custody of the child and allowed him to shift his son to Kenya. However, the court imposed a condition that the father should obtain a 'mirror order' from Kenya.

Explaining the objective of 'mirror order', the judgment authored by Justice Indu Malhotra stated :

"The object of a mirror order is to safeguard the interest of the minor child in transit from one jurisdiction to another, and to ensure that both parents are equally bound in each State.

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 noted that the concept originated in English Courts. Such orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The courts have found mirror orders to be the most effective way of achieving protective measures.

The SC explained that a 'mirror 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. 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, explained the judgment.

The judgment further noted that the Delhi High Court in Dr. Navtej Singh v. State of NCT of Delhi & Anr directed the husband to obtain a mirror order of the directions issued by the High Court, from the Superior Court of the State of Connecticut of Norwalk, U.S.A. The judgment of the High Court was affirmed by the Supreme Court in Jasmeet Kaur v. State (NCT of Delhi) and Anr(2019).

Therefore, the Court allowed the father to take custody of the child subject to the condition that he should obtain a 'mirror order' from a competent court in Nairobi, Kenya, reflecting the directions in the judgment of the Supreme Court within a period of two weeks.

After the mirror order is filed before this Court, the father was directed to deposit a sum of INR 1 Crore in the Registry of the Supreme Court, which shall be kept in an interest bearing fixed deposit account (on auto­renewal basis), for a period of two years to ensure compliance with the directions contained in the judgment.

The mother of the child was given access and visitation rights over the child on terms and conditions.

The Court relied on Section 17(3) of the Guardians and Wards Act, which requires due consideration to be given to the wishes of the child if the child is old enough to form an intelligible preference. The judgment indicates that the Court had a personal interaction with the child in Chambers during the pendency of the proceedings, to ascertain his aspirations and wishes.

Justice Hemant Gupta dissented from the majority judgment to hold that the custody of the child should remain with his mother in Delhi.

Case Details

Title : Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020)

Coram : Justices UU Lalit, Indu Malhotra and Hemant Gupta

Appearances : Senior Advocate Shyam Divan & Advocates P Banerjee and Nidhi Mohan Parashar(for appellant) and Advocates Anunya Mehta and Inderjeet Saroop(for respondent) 

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