Perry Kansagra vs Smriti Madan: Indian woman wins custody of child from her estranged ‘Kenyan husband’

by Wakili Liam
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Hammer: Family Law

The Indian Supreme Court has ordered the Indian Central Bureau of Investigations to commence criminal charges against a Kenyan of Indian origin who obtained child custody through fraudulent means.

The man Perry Kansagra was found to have obtained the child through lies and also taking the child to Kenya.

The Court has directed Perry Kansagra’s physical presence before it on November 16 and asked the registry to pay Rs 25 lakh as litigation cost, from to his wife Smriti Madan Kansangra

The granting of the custody of the child to the father was declared ‘illegal’ and ‘ab initio void’.

A bench comprising Justices Uday Umesh Lalit, Ajay Rastogi and Hemant Gupta observed in the judgment as follows : “It is fundamental that a party approaching the Court must come with clean hands, more so in child custody matters. Any fraudulent conduct based on which the custody of a minor is obtained under the orders of the Court would negate and nullify the element of the trust reposed by the Court in the concerned person. Wherever the custody of a minor is a matter of dispute between the parents or the concerned parties, the primary custody of the minor, in parens patriae jurisdiction, is with the Court which may then hand over the custody to the person who in the eyes of the Court, would be the most suitable person. Any action initiated to obtain such custody from the Court with fraudulent conduct and design would be a fraud on the process of the Court“.

In 2012, Mr Perry Kansagra and Ms Smriti Madan began an eight-year-long custody battle over their child, Aditya Vikram Kansagra

The case in brief

In October 2020, a three-judge bench of the Supreme Court had held a 2:1 majority that Perry Kassangra, who by then had immigrated to Kenya, was entitled to the custody of the child.

Later, the mother filed an application stating that the father got custody by allegedly giving a forged or wrong mirror order from the Kenyan High Court.

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 child.

The Supreme Court Bench

It was also alleged that he not only refused to obey the directions granting visitation or meeting rights to the mother but also moved the Kenyan court for declaration of invalidity of Indian jurisdiction and/or laws and/or judgments denying, violating and/or threatening to infringe the fundamental rights of the Minor through purported and unenforceable judgments and orders relating to the Minor under Articles 23(3) (d) of the Constitution of Kenya. 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.

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