Justice Uday Umesh Lalit, Justice Hemant Gupta and Justice Ajay Rastogi of the Supreme Court noted that the father had obtained an order for custody of the child through fraudulent conduct and so such order has to be nullified.The court while disposing of the application had recalled the court order for child custody and declared the custody of the child with father to be illegal as well as void ab initio, directed Registry to initiate Suo Motu Contempt proceedings against the father, ordered the custody of the child to be with mother and other directions as well and noted the following :
“40. It was only on the basis of the solemn undertakings given by Perry and the order dated 09.11.2020 passed by the High Court of Kenya at Nairobi which was projected to be a “Mirror Order” in compliance of the directions issued by this Court, that the custody of Aditya was directed to be handed over to Perry. Since the false and fraudulent representations made by Perry were the foundation, on the basis of which this Court was persuaded to handover custody of Aditya to him, it shall be the duty of this Court to nullify, in every way, the effect and impact of the orders which were obtained by playing fraud upon the Court. All the decisions referred to hereinabove point in that direction. This Court would therefore be well within its power and justified to recall all the orders and continue to assume jurisdiction to ensure that the situation as it prevailed prior to the passing of the orders by the Trial Court, the High Court and this Court, gets restored, whereafter appropriate decision can be taken in parens patriae jurisdiction.”
Respondent and appellant had a son out of their marriage. Respondent is of Indian origin and is from Kenya while the appellant is from India. Appellant and son returned back to India and filed suit against the respondent as well as his family. Respondent sought custody of child which was granted by Family Court. Appeal filed by the appellant before High Court was dismissed. Respondent had got a “Mirror Order” from Kenyan High Court. Appellant sought to see her son and asked the respondent to send him but it was kept delaying. This made the appellant to file an appeal before Apex Court.
In a civil appeal that was filed before the top court, the court opined:
“36. 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 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.”
LEGALFLAME 