SMRITI MADAN KANSAGRA vs PERRY KANSAGRA on 7 October, 2021

1.PK the Applicant herein, filed an Originating Summons dated 30.10.2020 seeking the following:-

1.Spent

2.THAT the judgment delivered by the Supreme Court of India in Supreme Court Civil appeal No.3559 of 2020 – SMK v. PK be registered.

3.THAT further, or other or orders, be granted so as to give effect to the orders of an in compliance with judgment of the Supreme Court of India made on 28th October 2020.

4.THAT costs be reserved.

2.The Application is anchored on the provisions of the Constitution of Kenya, 2020, the Children Act and the Foreign Judgments (Reciprocal Enforcement) Act and all enabling provisions of law. Given the prayers sought herein, the primary law on the matter is the Foreign Judgments (Reciprocal Enforcement) Act.

3.The facts of this case as can be gleaned from the record is that the Applicant a Kenyan citizen married S an Indian Citizen 29.7.09. Following the marriage, S moved to Kenya and settled in her matrimonial home. In 2009, she returned to India for the birth of their son AVK, who was born on 2.12.09 in New Delhi, India. On 1.7.10, the child came to Kenya with his parents where they lived. On 10.3.12 the child went to India both parents and was due to return to Kenya on 6.6.12. The Applicant went to India on 22.6.12 and spent time with S and the child until 26.4.12 when he returned to Kenya. On 26.5.12, S filed suit in the Delhi High Court, seeking a permanent injunction restraining the Applicant and his parents from removing the child from her lawful custody or from Delhi, or accessing the child in school, which orders were granted. This marked the beginning of litigation between the parties from the High Court all the way to the Supreme Court and culminated in the judgment, the registration of which the Applicant seeks.

4.In the judgment, the Supreme Court of India ordered that the custody of the child be handed over by S to the Applicant subject to several conditions set out in the judgment. Key among the conditions is that the Applicant was to obtain a mirror order from this Court reflecting the directions in the judgment, within 2 weeks. A copy of the mirror order was then to be filed in the Supreme Court of India.

5.The law relating to enforcement of judgments made in the foreign countries is set out in the Foreign Judgment (Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya. The objective of the Act is to make provision for the enforcement in Kenya, of judgments given in other countries which accord reciprocal treatment to judgments given in Kenya and for other purposes in connection therewith. The orders that the Applicant seeks to have registered by this Court were issued by the Supreme Court of India. In order for the said order to be enforceable, it must meet 2 criteria. First, the order must be made by a designated court and second, it must be an order or judgment to which the Act applies.

6.Section 2(1) of the Act defines a designated court as follows:- “designated court” means – (a) a superior court of a reciprocating country which is a Commonwealth country; (b) a superior court of any other reciprocating country which is specified in an order made under Section 13; (c) a subordinate court of a reciprocating country which is specified in an order made under Section 13;

7.Section 2(1) of the Act further defines a “reciprocating country” as that country declared as such, for the purposes of this Act by the Minister under Section 13(1). The superior Court giving the judgment must be of a reciprocating country, as declared by the line Minister by an order, to be a reciprocating country for the purposes of the Act.

8.The Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order, 1984 lists in a schedule, the countries declared by the minister to be reciprocating countries. Paragraph 2 of the Order provides: The countries specified in the schedule are declared to be reciprocating countries for the purposes of the Act and the Act shall apply with respect to judgments given by superior courts of those countries.

SCHEDULE

1.Australia, 2. Malwai, 3. Seychelles, 4. Tanzania, 5. Uganda, 6. Zambia, 7. The United Kingdom, 8. Republic of Rwanda.

9.From the above schedule, it is evident that India has not by an order of the Minister, been declared to be a reciprocating country. In the case of Jayesh Hasmukh Shah v. Navin Haria and another [2016] eKLR the Court of Appeal dismissed an appeal where the appellant sought to enforce and execute in Kenya a judgment from Ethopia which like India, is not a reciprocating country under the provisions of the Act. The Court stated: There is currently no treaty in place between Kenya and Ethopia pursuant to which either country’s judgment may be enforced by either country’s court. It is not in dispute that Ethopia’s Federal Supreme Court is not a “designated court” within the meaning of Kenya’s Foreign Judgment (Reciprocal Enforcement) Act. The respondent cited the case of Intalframe Ltd. v. Mediterranean Shipping Company, (1986) KLR where this Court expressed that the basic principle upon which neighbouring or other states provided for enforcement of foreign judgments is one of reciprocity. It is our considered view that the case of Intalframe Ltd. v. Mediterranean Shipping Company (supra) and the Foreign Judgment (Reciprocal Enforcement) Act (Cap 43, Laws of Kenya) are not relevant to this appeal as they are applicable only where there is reciprocal arrangement on enforcement of foreign judgment.

10.There are currently no reciprocal arrangements in place between Kenya and India pursuant to which either country’s judgment may be enforced or registered by either country’s courts. As such, the Supreme Court of India is not a “designated court” within the meaning of the Act.

11.It is noted that the order, the registration of which is sought by the Appellant relates to the custody of the child of the Appellant and S. Even if India were a reciprocating country, the Application herein would still run into headwinds in view of the provisions of Section 3(3)(e) of the Act which stipulates:- (3) This Act does not apply to a judgment or order- (e) in proceedings in connection with the custody or guardianship of children;

12.This Court has no jurisdiction to enforce or register a foreign judgment in proceedings in connection with the custody or guardianship of a child. This is because the Act does not apply to judgment in in such proceedings. In this regard, I agree with Mysyoka, J. who in Ian Mbugua Mimano v. Charlotte Wamuyu Mutisya & 2 others [2014] eKLR. Stated. There is no jurisdiction for me to deal with the matter of the enforcement of a foreign decree in proceedings in connection with the custody or guardianship of a child. There is clearly no merit in the application dated 20th May, 2014 so far as it relates to enforcement of a decree made by a USA court in proceedings in connection with the custody or guardianship of a child. I decline to grant it, and I hereby dismiss it with costs.

13.The Court therefore makes a finding that the judgment from the Supreme Court of India, being from a superior court of a non-reciprocating country, and further being one in proceedings in connection with the custody or guardianship of a child, is not registrable in this Court by dint of Sections 13(1) and 3(3)(e) of the Foreign Judgment (Reciprocal Enforcement) Act.

14.The Applicant has relied on the case of In Re Matter of I W P (Infant) [2013] eKLR in support of his case. I have considered the decision and note that the same is distinguished, in that the judgment in respect of which registration was sought therein, was from a Superior Court in the United Kingdom, a reciprocating country within the meaning of Section 2 of the Act. Notably, the learned Judge did not address that restriction in Section 3(3)(e) on applicability of the act to matters relating guardianship and custody of children. In any event, the said judgment being of a Court of concurrent jurisdiction to this Court is not binding on this Court.

15.In the end and for the reasons stated, I do find that the Originating Summons dated 30.10.2020 lacks merit and the same is hereby dismissed. This being a matter concerning a child, there shall be no order as to costs.

MAY 2021.

M. THANDE JUDGE”

30.On 19.08.2021, Mr. Tushar Mehta, learned Solicitor General of India appeared and the matter was directed to be taken up on 24.08.2021. Following order was passed by this Court on 24.08.2021:-

“The circumstances in which Miscellaneous Application No.1167/2021 has

been filed in Civil Appeal No.3559/2020, have been referred to in some detail in the earlier orders passed by this Court on 11.08.2021, 16.08.2021 and 17.08.2021.

“Pursuant to the request made by this Court, Mr. Tushar Mehta, learned SG

has appeared and advanced certain submissions. Mr. Mukul Rohatgi and Ms. Sonia Mathur, learned Senior Advocates appearing for the applicant have also invited our attention to various facts of the matter. In the light of the submission advanced by the learned counsel, in our view, it would be proper if the matter is placed before the Bench of three judges as the Judgment dated 28.10.2020 and Order dated 08.12.2020 were passed by the Bench of three judges of this Court.

We therefore, direct the Registry to place the instant matter before the Hon’ble CJI and seek requisite directions to constitute a Bench of three Judges alongwith Hon’ble Mr. Justice Hemant Gupta who was a member of the Bench when the Judgment dated 28.10.2020 and Order dated 08.12.2020 were passed.

List the matter at the end of the Board on 27.08.2021."

31.After hearing learned counsel for Smriti and Mr. Anunaya Mehta who rendered assistance as an Officer of the Court by order dated 27.08.2021, the matter was directed to be posted for orders by the present Bench on 2nd September, 2021. However, on 01.09.2021, I.A. No.108665 of 2021 was filed by Smriti stating as under:-

“2. That this Hon’ble Court had vide order dated 17.08.2021 granted the

following prayers to the Appellant and against the Respondent –

“d. Restrain the Respondent-Perry Kansagra from taking any action,

or/and taking any steps, or/and initiating and/or prosecuting any proceedings or any action of any nature before the Courts in Kenya or any other Court which will create an impediment in the implementation or execution of order dated 11.08.2021 or any other order or judgment passed by this Hon’ble Court; e. Restrain the Respondent-Perry Kansagra from seeking any modification of the mirror order dated 11.11.2020 from the High Court of Kenya, Milimani Law Courts, Family Division.”

3.That the Appellant received an email dated 31.08.2021 along with a notice of motion and an affidavit in support of the notice of motion, both dated 26th August, 2021 and an order dated 30th August, 2021, passed by the High Court of Kenya. The said documents further establish the contumacious and perjurious conduct of the Respondent and are being placed before this Hon’ble Court as Annexure P-1 (Pg.No.5 to 127).”

32.On the same day, another application i.e. I.A. No.109369 of 2021 was filed by Smriti stating :-

“3. That the Appellant received an email dated 31.08.2021 alongwith a

Petition and an affidavit in support of the Petition, both dated 26th August, 2021 and an order dated 30th August 2021, passed by the High Court of Kenya. The said documents further establish the contumacious and perjurious conduct of the Respondent and are being placed before this Hon’ble Court as Annexure P-2.”

33.From these applications and the documents appended thereto, it is evident that: A. On 26.08.2021, Perry filed Petition No.E 301 of 2021 claiming inter alia for declaration that the orders passed by this Court were invalid and incapable of compliance and/ or enforcement and for permanent injunction barring Smriti from taking Aditya outside the jurisdiction of the High Court of Kenya. The relevant portions from the Petition are:

“4. The Petitioner and the 1st Respondent solemnized their marriage on 29th

July, 2007 at New Delhi, India and following the marriage, the 1st Respondent moved to Kenya and lived with the Petitioner in Nairobi, Kenya. The Minor was born on 2nd December, 2009 from the wedlock of the Petitioner and the 1st Respondent and the said child has dual Kenyan and British citizenship.

5.The 1st Respondent left Kenya and travelled to India on 10th March, 2012 along with the Minor under the pretext of going to visit her (the 1st Respondent’s) Mother who lives in India and on arriving and settling in India, the 1st Respondent clandestinely filed a suit in the High Court at New Delhi, India seeking a permanent injunction restraining the Petitioner and his Parents from removing the Minor from the custody of the 1st Respondent or from removing the Minor from Delhi or accessing him in school.

6.The 1st Respondent unauthorizedly and illegally detained the Minor in India for Eight (8) Years and the Petitioner had to go through a tedious and prolonged litigation with the 1st Respondent in Indian Courts which litigation culminated in a judgment delivered on 28th October, 2020 by the Supreme Court of India in SUPREME COURT CIVIL APPEAL NO.3559 OF 2020 (SMRITI MADAN KANSAGRA VS. PERRY KANSAGRA) pursuant to which the Petitioner was, inter-alia, granted permanent custody of the Minor.

7.The judgments passed by all the three Indian Courts came to a conclusive finding that the best interest and welfare of the child is best secured by granting the Petitioner the custody of the Minor and the three relevant judgments issued in the proceedings between the Petitioner and the 1st Respondent are as follows:-

KANSAGRA VS SMRITI MADAN KANSAGRA) filed in the Family Court South Saket District Courts, New Delhi where Petition was allowed and Petitioner herein declared as guardian of the Minor child are granted permanent custody of the minor child with the 1st Respondent being granted visitation rights and temporary custody during school vacations in summer and winters, each year. b) Thereafter, the said Order of the Family Court South Saket District Courts, New Delhi was challenged by the 1st Respondent before the High Court of Delhi vide Case No. MAT. APP (F.C.) 30/ 2018. The said appeal was dismissed vide judgment dated 25th February, 2020 and the Petitioner herein was granted permanent custody. c) Thereafter, the said order of the High Court of Delhi was challenged by the 1st Respondent before Supreme Court of India vide CIVIL APPEAL NO.3559 OF 2020 (SMRITI MADAN KANSAGRA VS PERRY KANSAGRA) being an appeal arising out of a Guardianship Petition filed at the Supreme Court of India where custody of the Minor was handed over to Perry Kansagra (the Petitioner), subject to the Petitioner meeting certain directions, among them, obtaining a ‘Mirror Order’ from the High Court in Nairobi, Kenya. 12. It is humiliating and degrading to the Minor and a violation of his rights to have his inherent dignity respected and protected by forcefully compelling him to take out an Overseas Citizen of India (OCI) card in the Office of the Indian embassy at Nairobi without first ascertaining his feelings and wishes, and without taking into account the fact that he is a dual citizen of the Republic of Kenya and the United Kingdom.

13.The actions, of the 1st Respondent and the orders issued by the Supreme Court of India on 11th August, 2021 requiring the Minor to take out an OCI card and board a flight to India is a clear violation of the rights enshrined under Article 28 of the Constitution of Kenya which recognizes the inherent dignity of the Minor and the right to respect and protect that dignity.

14.No effort has been made by the 1st Respondent and/ or the Supreme Court of India to ascertain the wishes and feelings of the Minor, his emotional needs and no effort has been made to evaluate whether taking out an OCI card and arranging the traveling of the Minor to India during the pendency of the corona-virus pandemic is harmful to his welfare and best interest.

15.The petitioner alleges that under Article 53 of the Constitution of Kenya, the Minor has the right to be protected from abuse, neglect and inhuman treatment and to a recognition that the Minor’s best interests are of paramount importance in every matter concerning the child. The concise allegations and facts the Petitioner relies upon to describe the manner and relevant acts of contravention of the said Fundamental Freedom under Article 53 of the Constitution of Kenya are:- (a) The ineffectual and unenforceable Orders issued by the Supreme Court of India was given without jurisdiction. The Supreme Court of India could not exercise jurisdiction over the Kenyan Minor in matters that concerned the custody of the Minor who is now a resident and citizen of Kenyan. The orders did not have regard to the welfare, ascertainable feelings, wishes and best interest of the Minor and by compelling the Minor to take out OCI card and travel to India before ascertaining the emotional needs, feelings and wishes of the Minor, the Court acted in total disregard of what constitutes a child’s best interest. (b) the Orders issued by the Supreme Court of India do not advance the rule of law and the human rights and fundamental freedoms guaranteed in the Bill of Rights. The orders are incapable of implementation and if implemented, would have absurd results because the said orders are not binding based on the following: (i) India has not been declared a reciprocating country under the provisions of Foreign Judgment (Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya and as such, the judgment of the Indian Courts cannot be effectively enforced and/or executed in Kenya.

(ii) Section 3(3) (e) of Foreign Judgment (Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya does not recognize a judgment or order in proceedings connected with the custody or guardianship of children passed by foreign courts. In the foregoing circumstances, the Courts in Kenya are not bound by the foreign judgment in such a proceedings related with the custody or guardianship of children. (iii) There is no valid “Mirror Order” and in the event the child is sent to India, there is every possibility that the child may be detained in India by the Indian Courts and/or the Mother and the Kenyan Courts who are lawfully vested with jurisdiction over Kenyan Nationals and Citizens will lose their jurisdiction over the Minor and it will become impossible for Kenyan Courts to protect the rights of the child in such an eventuality.

(c) No regard has been given to the Minor’s physical, emotional and educational needs and the Minor is at risk of suffering harm by being compelled to travel to India during the existence of the Covid-19 pandemic, thus exposing him to health hazards. (d) Kenyan Courts have exclusive territorial and/or geographical jurisdiction over children who are Kenyan Citizens and that jurisdiction cannot be taken away by any other Court or administrative body. (e) It is unreasonable and contrary to public interest for any Court, Diplomatic Mission or administrative body to unilaterally compel a Minor to adopt citizenship or status of identity that the Minor has not expressed any ascertainable wish to acquire. (f) The right of every child to have their best interest protected and safeguarded is paramount and the orders issued by the Supreme Court of India purport to limit and restrict the enjoyment of the child’s rights guaranteed under Article 53 (2) of the Constitution of Kenya.

(g) The acts of the 1st Respondent smacks of mala fide and are calculated to make sure that the Minor is issued with an OCI card and travels to India. The 1st Respondent is not motivated by the best interest of the child and offend the provisions of Article 53 of

16.The Petitioner states that this Honourable Court has jurisdiction under Article 165(3) (a), (b) (d) and Article 258 of the Constitution of Kenya and Section 22(1) of the Children Act to hear and determine this Petition and make such orders, issue such writs and give such directions as it may consider appropriate bearing in mind the best interest of the Minor as by law required.

1.A 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

2.A declaration that the Minor is a dual citizen of Kenya and the United Kingdom and a resident of Kenya and that India has no territorial and/or geographical jurisdiction over personal matters relating to the Minor.

3.A declaration that compelling the Minor to take out Overseas Citizen of India (OCI) card in the Office of the Indian Embassy at Nairobi and/or compelling the said Minor to Board a flight to India during the pendency of the highly infectious Covid-19 pandemic and against the travel restrictions imposed by the Government of the Republic of Kenya is contrary to Section 13(1) of the Children Act and is a violation of the fundamental right of the Minor enshrined under Article 28 and 53 of

4.A declaration that there exists no valid “Mirror Orders” to the orders issued by the Supreme Court of India on 11th August, 2021 and in the circumstances, the Orders are inapplicable to the Minor and incapable of compliance and/or enforcement.

5.A declaration that under Section 3 93) (e) of the Foreign Judgment (Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya, Kenya lacks jurisdiction to recognize, enforce or register a foreign judgment in proceedings that relate to the custody or guardianship of children who are citizens of the Republic of Kenya.

6.A declaration that all the rights of the Minor are governed exclusively by the Children Act, Chapter 141 of the Laws of Kenya and that to safeguard and promote the rights and welfare of the Minor, the 1st Respondent herein or any other party to these proceedings ought to seek any redress from Kenyan Courts where the Minor is a citizen and currently resident as provided for under Section 118 of the Children Act.

7.An Order that the Director of Children’s Services do carry out an in- depth enquiry into the wellbeing, welfare, ascertainable wishes and feelings of the Minor under Section 4 (2), 11, 76 (3) of the Children Act and tender a report to this Honourable Court and provide all necessary assistance to the judicial process to the intent that orders issued by this Honourable Court which require administrative arrangements may achieve fulfilment.

8.An order directing the Petitioner to allow the 1st Respondent and the Minor unimpeded telephone access in circumstances and durations the Court shall deem reasonable and visitation rights to visit and stay with the Minor within the Republic of Kenya in circumstances and for a duration the Court shall deem reasonable provided that the 1st Respondent shall not remove the Minor from the said Republic of Kenya.

9.A permanent injunction barring the 1st Respondent either by herself, her Servants and/or Agents from taking the Minor outside the jurisdiction of this Honourable Court or any other person whosoever from arranging and/or facilitating the removal of the Minor from Kenya without the express willful consent of the Minor and the Petitioner. ….” B. In said Petition No.E 301 of 2021, Notice of Motion was also moved for interim relief pending hearing and determination of the dispute. The relevant portion of the Notice of Motion was:-

“NOTICE OF MOTION

(Under rule 11(1) Part II of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and all enabling-provisions of the law.)

TAKE NOTICE that this Honourable Court shall be moved on ………….the……day of ………2021, by Counsel for the Petitioner/Applicant for hearing an Application for ORDERS THAT:

1.This application be certified urgent and fit to be heard on priority basis. Honourable court be pleased to issue a conservatory order of status quo. Honourable Court be pleased to grant an order of temporary injunction restraining and barring the 1st Respondent either by herself, her Servants and/or Agents or any other person whosoever from taking the Minor outside the jurisdiction of this Honourable Court and/or arranging and/or facilitating the removal of the Minor from Kenya without the express consent of the Minor and the Petitioner. Honourable Court be pleased to issue an order of temporary injunction restraining and barring the 1st Respondent either by herself, her Servants and/or Agents or any other person whosoever from applying for or obtaining an Overseas Citizenship of India (OCI) card in the name and/or on behalf of the Minor in order to facilitate the Minor to board a flight and travel outside the Republic of Kenya.

5.In the exercise of its inherent discretion, and should it finds fit, this Honourable Court be pleased to call and interact with the Minor and ascertain his feelings and wishes regarding the 1st Respondent’s intention of removing him from Kenya and taking him to India during the pendency of the Covid-19 global pandemic and if the Court find it necessary, to Commission the relevant office in the Department of Children Services to prepare and file before this Honourable Court a situational report on the ascertainable feelings and wishes of the Minor and a finding as to whether the intended travel to India is in the best interest of the Minor.

6.An order that service of the Petition and the supporting Affidavit together with all pleadings and/or process of the Court in this matter be served upon the 1st Respondent through her last known email address and by Courier Service to her last known address in New Delhi, India being care of C-Block 487, Defence Colony, New Delhi-110024.

7.The cost of an incidentals to this application abide the results of the said Appeal. WHICH APPLICATION is premised inter alia on the following grounds supported by the affidavit of the Petitioner/Applicant and on other grounds to be adduced at the hearing hereof; a) THAT the Petitioner/Applicant is the biological father and natural guardian of the Minor and currently lives and takes care of the Minor at their Nairobi home following a Court Order issued by the Supreme Court of India in Supreme Court Civil Appeal No. 3559 of 2020 (SMRITI MADAN KANSAGRA VS. PERRY KANSAGRA) b) THAT the Supreme Court of India in Supreme Court Civil Appeal No.3559 of 2020 (SMRITI MADAN KANSAGRA VS. PERRY KANSAGRA) came to the conclusive finding that the best interest and welfare of the child was best served and secured by granting the Petitioner permanent custody of the Minor with the Respondent being granted visitation rights during school vacations in summer and winters, each year. c) THAT following the aforesaid Judgment of the Supreme Court of India, the Minor has been living with the Petitioner in Nairobi where he has acclimatized and accustomed to his new home and school environment and made friends and is scheduled to start Class VII at Peponi House School in Nairobi in the Month of September, 2021. d) THAT on 28th June, 2021 the minor lost his paternal grandfather who succumbed to Covid-19 related complications and is still mourning the said loss as he was very close to his paternal grandfather. The minor fears the covid-19 pandemic and he prefers to stay in Nairobi and not travel during the pendency of the covid-19 pandemic. e) THAT the 1st Respondent sought and on 11th August 2021, obtained orders from the Supreme Court of India in MISCELLANEOUS APPLICATION NO.1167 OF 2021 IN CIVIL APPEAL NO. 3559 OF 2020 (SMRITI MADAN KANSAGRA VS. PERRY KANSAGRA) where the Court issued orders compelling the Petitioner to apply in the office of the Indian Embassy at Nairobi for the Minor to be issued with Overseas Citizen of India card so as to enable the Minor board a flight and travel to India notwithstanding that the Government of the Republic of Kenya has issued travel restrictions through the Kenya Civil Aviation suspending all passenger flights between Kenya and India with effect from Midnight 7th June, 2021 due to the Covid-19 infections. f) THAT the Minor has declared his ascertainable feelings and wishes as recorded in a situational report dated 9th August, 2021 and prepared by County Coordinator, Nairobi Country Children Services in the Department of Children Services and from the contents of the said report, the Minor fears the 1st Respondent and is not willing to travel to India; he prefers to stay in Kenya with the Petitioner and fears that the 1st Respondent who is drunkard, abusive and violent will illegally detain the Minor in India like she did previously. g) THAT the 1st Respondent has moved with speed and booked an Air Ticket for the Minor to take the Minor to India via Paris contrary to the ascertainable feelings and wishes of the Minor and the interest of justice will best be served by granting a conservatory order of status quo and pending the hearing and determination of the annexed Petition. h) THAT the Petitioner/Applicant’s Petition raises substantial and important constitutional points as well as points of law and touch on matters of paramount importance to the best interest of the Minor and which is recognized and guaranteed under Article 53(2) of the Constitution. i) THAT if a conservatory order and/or a temporary order of injunction is not granted restraining and barring the 1st Respondent either by herself, her Servants and/or Agents or any other person whosoever from removing the Minor from the jurisdiction of this Honourable Court and/or applying for an Overseas Citizenship of India (OCI) card in the name and/or on behalf of the Minor in order to facilitate the Minor to board a flight to India, the best interest of the Minor will be compromised and his rights and freedoms guaranteed under the Constitution will be violated and his health, mental and emotional development of affected.

j) THAT it is in the interest of justice and in the best interest of Aditya Vikram Kansagra that the orders sought herein be granted. Dated at Nairobi this 26th day of August, 2021.”

C. The affidavit of Perry in support of the Notice of Motion stated, inter alia:-

“15. THAT I am advised by Mr. Pravin Bowry SC, and which advice I verily

believe to be true that due to the principle of diplomatic immunity, I cannot file suit and get orders against Government Officials of the Indian Embassy at Nairobi to restrain them from issuing the Minor with an Overseas Citizen of India card since they are not subject to the jurisdiction of Kenyan Courts in the performance of their official duties.

16.THAT I am further advised by my aforesaid Advocate and which advise I verily believe to be true, that under the provisions of Section 3 (3) € of the Foreign Judgment (Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya, Courts in Kenya cannot recognize and/or deal with the orders obtained from foreign courts in proceedings connected with the custody or guardianship of children and the Orders obtained by the 1st Respondent on 11th August, 2021 in the Supreme Court of India cannot be given recognition and/or enforcement by Kenyan Courts and are thus invalid and need to be declared as such.

17.THAT I am therefore reasonably apprehensive that if this matter is not certified urgent and admitted to hearing on a priority basis and a conservatory order of status quo issued, the order obtained by the 1st Respondent on 11th August, 2021 from the Supreme Court of India and which is invalid and incapable of recognition and/or enforcement by Kenyan Courts will be used to impede and violate the fundamental rights and freedoms of the Minor who is a citizen and resident of the Republic of Kenya and used to unlawfully remove the Minor from the jurisdiction of this Honourable Court.” D. The Situational Report dated 9.8.2021 referred to in Paragraph 7(f) of the Notice of Motion was :-

“MINISTRY OF EAC, LABOUR AND SOCIAL PROTECTION

Telephone (020) 2059212 Email Provincial Headquarter Building Nyayo House PO Box 58016-0200 Nairobi Date:09/08/2021 David Kiptum & Company Advocates 49, Mageta Road, off Muthangari Road, Lavington P.O. Box 21863-001100 Nairobi

The minor is 11 years old having been born on 2/12/2009. He is in year 7 at Pepont School. He was interviewed on 9/8/2021 following the complaints that were raised by his mother to his father via email and in an application filed before the Indian Supreme Court. The gist of her complaint is that the minor is being alienated from her, is being controlled and is sad and low. The minor was interviewed and he indicated to me that he did not wish to talk to his mother because there was nothing for him to talk about. It was his claim that each time he talked to her she pressured him to leave Kenya and join her in India, something he does not want. He also said that India reminded him of very bad memories where his mother was mistreating him. That she used to shout at him whenever she was drunk something that affected him emotionally. It was also his claim that his mother did not allow him to play with his friends.

The minor said he preferred talking to his maternal grandmother whom he said was very kind to him while in India. He felt that his father was pressuring him to talk to his mother against his wish. He was very candid that he did not wish to go to India and that he preferred to stay in Kenya with his father. Considering the ascertainable wish of the minor and the orders given by the India Court it is my considered opinion that you should move to the Children Court seeking orders that will give effect to his wishes. To force him to talk to his mother and to travel to India to see her against his wish is likely to visit untold psychological effect on him. Given the fact that the child is within the jurisdiction of Kenya, the children court is clothed with the jurisdiction to issue orders of this nature Sd/-

34.The documents and the developments referred to hereinabove show: - (i) Perry had given an unequivocal undertaking to the High Court that he would submit to the jurisdiction of the Indian Courts. He had also given a solemn undertaking to this Court that he would comply with the Order dated 28.10.2020 in addition to the Judgment dated 28.10.2020. (ii) In response to a specific submission raised in Miscellaneous Application No.2140 of 2020 (quoted in paragraph 16 hereinabove), it was submitted by Perry that he had subjected himself to the jurisdiction of this Court. While dealing with the rival submissions in the Order dated 8.12.2020, this Court made it clear that the undertaking given by Perry to the High Court would continue to be operative, in addition to the undertaking given to this Court.

(iii) The Judgment dated 28.10.2020 had called upon Perry to obtain a ‘Mirror Order’ from the concerned Court in Nairobi to reflect the directions contained in the Judgment dated 28.10.2020. Thereafter, the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi along with the relevant application moved by Perry seeking registration of the Judgment dated 28.10.2020, was filed in this Court. (iv) There was a dispute whether the registration granted vide order dated 9.11.2020 by the High Court of Kenya at Nairobi amounted to fulfilling the requirement of a “Mirror Order”. The submissions on the point were dealt with in paragraphs 8 and 9 of the Order dated 8.12.2020. The learned counsel appearing for Perry had relied upon the opinion given by M/s. GMC Advocates which in turn had relied upon the decision of the High Court of Kenya at Nairobi in Re: Matter of I W P (Infant) [2013] eKLR to submit that the registration itself was a “Mirror Order” in compliance of the requirements of the Judgment dated 28.10.2020. Relying on the submissions so advanced on behalf of Perry and in deference to the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi, in paragraph 10 of the Order dated 8.12.2020, this Court observed that the registration of the Judgment of this Court by the High Court of Kenya at Nairobi was sufficient compliance of the directions to obtain a “Mirror Order” issued from a Competent Court in Kenya. (v) The Judgment dated 28.10.2020 and the Order dated 8.12.2020 passed by this Court were thus premised on the submission that the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi while registering the Judgment dated 28.10.2020 passed by this Court was in fact the “Mirror Order”.

(vi) It now transpires that by a subsequent Order dated 21.5.2021, the High Court of Kenya at Nairobi in Paragraph 13 of its order observed that the judgment of this Court was not registrable and dismissed the Originating Summons dated 30.10.2020 filed by Perry.

(vii) At no stage Perry brought this development to the notice of this Court that the Originating Summons moved by him seeking registration of the Judgment dated 28.10.2020 passed by this Court was dismissed by the High Court of Kenya at Nairobi on 21.5.2021. Having submitted to the jurisdiction of the Indian Courts it was the bounden duty of Perry to keep this Court appraised of all the developments particularly when the “Mirror Order” was the fulcrum on the basis of which this Court handed over to him the custody of Aditya.

(viii) This infraction gets more pronounced in the light of the stand taken in his Affidavit dated 5.8.2021 filed in this Court and referred to in Paragraph 22 hereinabove. In that affidavit Perry unequivocally stated that he had not even the remotest intention to disobey the Order passed by this Court including the Judgment dated 28.10.2020. Yet, something as basic and fundamental like the Order dated 21.05.2021 was not brought to the notice of this Court. Logically, Perry should have brought back Aditya to this country so that status quo ante could be restored and appropriate orders could thereafter be passed by this Court. (ix) Miscellaneous Application No.1167 of 2021 filed by Smriti had annexed e-mails exchanged between her and Perry and prayed that Perry be directed to comply with directions regarding vacation access. In response, apart from stating that he had no intentions to disobey the orders passed by this Court, Perry voiced concern about sending Aditya to India. Being well aware of the conditions in this Country, a solution was devised by this Court in its Order dated 11.08.2021 and certain directions to facilitate the entry of Aditya into and his exit from India in a safe manner were issued. Pertinently on 11.08.2021, the attention of this Court was not invited to the fact that the Situational Report dated 09.08.2021 as referred to hereinabove was made or that the matter was being looked into by the concerned authorities in Kenya. (X) Despite clear directions issued in the Order dated 11.08.2021 Perry had not taken any steps to comply with the Order. As a matter of fact, by the time the matter was taken up for further hearing on 16.08.2021, Perry sought to withdraw the authorization in favour of the learned counsel who were all the while representing him before this Court.

(XI) As disclosed in I.A. 100550 of 2021 week-end Skype meetings between Smriti and Aditya were not facilitated from the week-end of 14.08.2021 and 15.08.2021. Perry also blocked all means of communications with Smriti. Though in law the learned advocates who had entered appearance on behalf of Perry would continue to represent him, notice was additionally directed to be served on Perry through Indian embassy of Nairobi.

(XII) In the light of the defiant attitude exhibited by Perry and his refusal to abide by the Orders passed by this court, ad-interim relief in terms of prayers (d) (e) and (f) made by Smriti in her I.A. No.100550 of 2021 was granted by this Court vide its order dated 17.08.2021. (XIII) Finally, Petition No.E301 of 2021 and – Notice of Motion were moved on behalf of Perry, filed in the High Court of Kenya at Nairobi on 26.08.2021. The stand taken by Perry in said Petition and Notice of Motion is that it would be humiliating to compel Aditya to take OCI Card; that wishes of Aditya were not ascertained by this Court; that there was no valid Mirror Order and that the orders passed by this Court were without jurisdiction. He has prayed for declaration that there existed no valid “Mirror Order” and in the circumstances the orders passed by this Court are incapable of compliance and/or enforcement.

35.These developments not only show the defiant and contumacious posture now adopted by Perry but prima facie support the submissions of Smriti made in Interim Applications referred to in paragraphs 25, 27, and 28 herein above. 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 Aditya and then turn around and defy the Orders of this Court.

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.

37.We may now refer to some of the cases where orders or decrees from the Court were obtained by a party after practicing fraud upon the Court. (a) In S.P. Chengalvaraya Naidu v. Jagannath4 the observations by this Court were to the following effect: -

“5. The High Court, in our view, fell into patent error. The short question before

the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of

“finality of litigation” cannot be pressed to the extent of such an absurdity that it

becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court- process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

6.The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.”

(b) In Indian Bank v. Satyam Fibres (India) (P) Ltd.5 the principles were stated thus: -

“21. In Smith v. East Elloe Rural Distt. Council6 the House of Lords held that the

effect of fraud would normally be to vitiate any act or order. In another case, Lazarus Estates Ltd. v. Beasley7, Denning, L.J. said:

‘No judgment of a court, no order of a Minister, can be allowed to

stand if it has been obtained by fraud. Fraud unravels everything.’

22.The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business.

23.Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. (See: Benoy Krishna Mukerjee v. Mohanlal Goenka8 ; Gajanand Sha v. Dayanand Thakur9 ; Krishnakumar v. Jawand Singh10 ; Devendra Nath Sarkar v. Ram Rachpal Singh11; Saiyed Mohd. Raza v. Ram Saroop12; Bankey Behari Lal v. Abdul Rahman13; Lekshmi Amma Chacki Amma v. Mammen Mammen14, The court has also the inherent power to set aside a sale brought about by fraud practised upon the court (Ishwar Mahton v. Sitaram Kumar15 or to set aside the order recording compromise obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh16; Tara Bai v. V.S. Krishnaswamy Rao17” 6 [1956 AC 736 : (1956) 1 All ER 855 : (1956) 2 WLR 888] 7 [(1956) 1 QB 702 : (1956) 1 All ER 341 : (1956) 2 WLR 502] (QB at p. 712) 8 [AIR 1950 Cal 287] 9 [AIR 1943 Pat 127 : ILR 21 Pat 838] 10 [AIR 1947 Nag 236 : ILR 1947 Nag 190] 11 [ILR (1926) 1 Luck 341 : AIR 1926 Oudh 315] 12 [ILR (1929) 4 Luck 562 : AIR 1929 Oudh 385 (FB)] 13 [ILR (1932) 7 Luck 350 : AIR 1932 Oudh 63] 14 [1955 Ker LT 459] . 15 [AIR 1954 Pat 450] 16 [AIR 1958 Pat 618 : 1958 BLJR 651] 17 [AIR 1985 Kant 270 : ILR 1985 Kant 2930] (C) In United India Insurance Co. Ltd. v. Rajendra Singh18 this Court observed: - “16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.

(D) In Ram Chandra Singh v. Savitri Devi19 the discussion on the point was as under:- “18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.

18.A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.”

(E) In Hamza Haji v. State of Kerala20 the matter in issue was discussed thus: - “10. It is true, as observed by De Grey, C.J., in R. v. Duchess of Kingston21 that:

“ ‘Fraud’ is an extrinsic, collateral act, which vitiates the most

solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical and temporal.”

11.In Kerr on Fraud and Mistake, it is stated that:

“In applying this rule, it matters not whether the judgment

impugned has been pronounced by an inferior or by the highest 21 [2 Smith LC 687] court of judicature in the realm, but in all cases alike it is competent for every court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud.”

12.It is also clear as indicated in Kinch v. Walcott22 that it would be in the power of a party to a decree vitiated by fraud to apply directly to the court which pronounced it to vacate it. According to Kerr:

“In order to sustain an action to impeach a judgment, actual fraud

must be shown; mere constructive fraud is not, at all events after long delay, sufficient … but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury.” (See 7th Edn., pp. 416-17)

13.In Corpus Juris Secundum, Vol. 49, para 265, it is acknowledged that:

“Courts of record or of general jurisdiction have inherent power

to vacate or set aside their own judgments.”

In para 269, it is further stated:

“Fraud or collusion in obtaining judgment is a

sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action.” It is also stated:

“Fraud practised on the court is always ground for

vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair.”

14.In American Jurisprudence, 2nd Edn., Vol. 46, para 825, it is stated:

“Indeed, the connection of fraud with a judgment constitutes one

of the chief causes for interference by a court of equity with the operation of a judgment. The power of courts of equity in granting such relief is inherent, and frequent applications for equitable relief against judgments on this ground were made in equity before the practice of awarding new trials was introduced into the courts of common law.

22 [1929 AC 482 : 1929 All ER Rep 720 : 141 LT 102 (PC)] Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied.”

15.The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a court to consider and decide the question whether a prior adjudication is vitiated by fraud. In Paranjpe v. Kanade23 it was held that: (ILR p. 148)

“It is always competent to any court to vacate any judgment or

order, if it be proved that such judgment or order was obtained by manifest fraud;”

16.In Lakshmi Charan Saha v. Nur Ali24 it was held that: (ILR p. 936)

“[T]he jurisdiction of the Court in trying a suit [questioning the

earlier decision as being vitiated by fraud,] was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree.”

17.In Manindra Nath Mittra v. Hari Mondal25 the Court explained the elements to be proved before a plea of a prior decision being vitiated by fraud could be upheld. The Court said: (AIR p. 127)

“With respect to the question as to what constitutes fraud for

which a decree can be set aside, two propositions appear to be well established. The first is that although it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words, where the Court has been intentionally misled by the fraud of a party and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. The second is that a decree cannot be set aside merely on the ground that it has been procured by perjured evidence:” 23 [ILR (1882) 6 Bom 148] 24 [ILR (1911) 38 Cal 936 : 15 CWN 1010] 25 [(1919) 24 CWN 133 : AIR 1920 Cal 126]

18.The position was reiterated by the same High Court in Esmile Uddin Biswas v. Shajoran Nessa Bewa26 . It was held that: (AIR p. 650)

“[I]t must be shown that the fraud was practised in relation to the

proceedings in Court and the decree must be shown to have been procured by practising fraud of some sort, upon the Court:”

19.In Nemchand Tantia v. Kishinchand Chellaram (India) Ltd.27 it was held that: (CWN p. 740)

“A decree can be reopened by a new action when the court passing

it had been misled by fraud, but it cannot be reopened when the court is simply mistaken; when the decree was passed by relying on perjured evidence, it cannot be said that the court was misled.”

20.It is not necessary to multiply authorities on this question since the matter has come up for consideration before this Court on earlier occasions. In S.P. Chengalvaraya Naidu v. Jagannath28 this Court stated that: (SCC p. 2, para 1)

“It is the settled proposition of law that a judgment or decree

obtained by playing fraud on the court is a nullity and non est in the eye of the law. Such a judgment/decree—by the first court or by the highest court—has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.”

The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to the court with a true case and prove it by true evidence. Their Lordships stated: (SCC p. 5, para 5)

“The courts of law are meant for imparting justice between the

parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank loan- dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.”

21.In Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education29 this Court after quoting the relevant passage from Lazarus Estates 26 [132 IC 897 : AIR 1931 Cal 649 (2)] 27 [(1959) 63 CWN 740 : AIR 1959 Cal 776] Ltd. v. Beasley30 and after referring to S.P. Chengalvaraya Naidu v. Jagannath31 reiterated that fraud avoids all judicial acts. In State of A.P. v. T. Suryachandra Ra32o this Court after referring to the earlier decisions held that suppression of a material document could also amount to a fraud on the Court. It also quoted (at SCC p. 155, para 16) the observations of Lord Denning in Lazarus Estates Ltd. v. Beasley33 that: (All ER p. 345 C)

“No judgment of a court, no order of a Minister, can be allowed

to stand if it has been obtained by fraud. Fraud unravels everything.”

22.According to Story's Equity Jurisprudence, 14th Edn., Vol. 1, para 263:

“Fraud indeed, in the sense of a Court of Equity, properly includes

all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.”

23.In Patch v. Ward 34 Sir John Rolt, L.J. held that:

“Fraud must be actual positive fraud, a meditated and intentional

contrivance to keep the parties and the court in ignorance of the real facts of the case, and obtaining that decree by that contrivance.”

24.This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra35 held that: (SCC p. 607)

“Suppression of a material document would also amount to a fraud

on the court. Although, negligence is not fraud but it can be evidence on fraud.”

25.Thus, it appears to be clear that if the earlier order from the Forest Tribunal has been obtained by the appellant on perjured evidence, that by itself would not enable the Court in exercise of its power of certiorari or of review or under Article 215 of the Constitution of India, to set at naught the earlier order. But if the court finds that the appellant had founded his case before the Forest Tribunal on a false plea or on a claim which he knew to be false and suppressed documents or transactions which had relevance in deciding his claim, the same would amount to fraud. In this 30 [(1956) 1 All ER 341 : (1956) 2 WLR 502 : (1956) 1 QB 702 (CA)] 33 [(1956) 1 All ER 341 : (1956) 2 WLR 502 : (1956) 1 QB 702 (CA)] 34 [(1867) 3 Ch App 203 : 18 LT 134] case, the appellant had purchased an extent of about 55 acres in the year 1968 under Document No. 2685 of 1968 dated 2-6-1968. He had, even according to his evidence before the Forest Tribunal, gifted 5 acres of land to his brother under a deed dated 30-1-1969. In addition, according to the State, he had sold, out of the extent of 55.25 acres, an extent of 49.93 acres by various sale deeds during the years 1971 and 1972. Though, the details of the sale deeds like the numbers of the registered documents, the dates of sale, the names of the transferees, the extents involved and the considerations received were set out by the State in its application for review before the High Court, except for a general denial, the appellant could not and did not specifically deny the transactions. Same is the case in this Court, where in the counter-affidavit, the details of these transactions have been set out by the State and in the rejoinder filed by the appellant, there is no specific denial of these transactions or of the extents involved in those transactions. Therefore, it stands established without an iota of doubt as found by the High Court, that the appellant suppressed the fact that he had parted with almost the entire property purchased by him under the registered document through which he claimed title to the petition schedule property before the Forest Tribunal. In other words, when he claimed that he had title to 20 acres of land and the same had not vested in the State and in the alternative, he bona fide intended to cultivate the land and was cultivating that land, as a matter of fact, he did not have either title or possession over that land. The Tribunal had found that the land was a private forest and hence has vested under the Act. The Tribunal had granted relief to the appellant only based on Section 3(3) of the Act, which provided that so much extent of private forest held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him and that does not exceed the extent of the ceiling area applicable to him under Section 82 of the Kerala Land Reforms Act, could be exempted. Therefore, unless the appellant had title to the application schedule land and proved that he intended to cultivate that land himself, he would not have been entitled to an order under Section 3(3) of the Act. It is obvious that when he made the claim, the appellant neither had title nor possession over the land. There could not have been any intention on his part to cultivate the land with which he had already parted and of which he had no right to possession. Therefore, the appellant played a fraud on the Court by holding out that he was the title-holder of the application schedule property and he intended to cultivate the same, while procuring the order for exclusion of the application schedule lands. It was not a case of mere perjured evidence. It was suppression of the most vital fact and the founding of a claim on a non-existent fact. It was done knowingly and deliberately, with the intention to deceive. Therefore, the finding of the High Court in the judgment under appeal that the appellant had procured the earlier order from the Forest Tribunal by playing a fraud on it, stands clearly established. It was not a case of the appellant merely putting forward a false claim or obtaining a judgment based on perjured evidence. This was a case where on a fundamental fact of entitlement to relief, he had deliberately misled the Court by suppressing vital information and putting forward a false claim, false to his knowledge, and a claim which he knew had no basis either in fact or on law. It is therefore clear that the order of the Forest Tribunal was procured by the appellant by playing a fraud and the said order is vitiated by fraud. The fact that the High Court on the earlier occasion declined to interfere either on the ground of delay in approaching it or on the ground that a second review was not maintainable, cannot deter a Court moved in that behalf from declaring the earlier order as vitiated by fraud.

26.The High Court, as a court of record, has exercised its jurisdiction to set at naught the order of the Forest Tribunal thus procured by the appellant by finding that the same is vitiated by fraud. There cannot be any doubt that the Court in exercise of its jurisdiction under Article 215 of the Constitution of India has the power to undo a decision that has been obtained by playing a fraud on the Court. The appellant has invoked our jurisdiction under Article 136 of the Constitution of India. When we find in agreement with the High Court that the order secured by him is vitiated by fraud, it is obvious that this Court should decline to come to his aid by refusing the exercise of its discretionary jurisdiction under Article 136 of the Constitution of India. We do not think that it is necessary to refer to any authority in support of this position except to notice the decision in Ashok Nagar Welfare Assn. v. R.K. Sharma [(2002) 1 SCC 749 : 2001 Supp (5) SCR 662] .” (F) In K.D. Sharma v. SAIL36 the matter in issue was dealt with as under:- “26. It is well settled that “fraud avoids all judicial acts, ecclesiastical or temporal” proclaimed Chief Justice Edward Coke of England about three centuries before. Reference was made by the counsel to a leading decision of this Court in S.P. Chengalvaraya Naidu v. Jagannath37 wherein quoting the above observations, this Court held that a judgment/decree obtained by fraud has to be treated as a nullity by every court.

27.Reference was also made to a recent decision of this Court in A.V. Papayya Sastry v. Govt. of A.P.38 Considering English and Indian cases, one of us (C.K. Thakker, J.) stated: (SCC p. 231, para 22)

“22. It is thus settled proposition of law that a judgment, decree or

order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order—by the first court or by the final court—has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.”

The Court defined “fraud” as an act of deliberate deception with the design of securing something by taking unfair advantage of another. In fraud one gains at the loss and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam.

39.If the primary object as highlighted in Kensington Income Tax Commrs39. is kept in mind, an applicant who does not come with candid facts and “clean breast” cannot hold a writ of the court with “soiled hands”. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.”

(G) In Meghmala v. G. Narasimha Reddy40 this Court observed: - “28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law. “Fraud avoids all judicial acts, ecclesiastical or temporal.” (Vide S.P. Chengalvaraya Naidu v. Jagannath41. In Lazarus Estates Ltd. v. Beasley42 the Court observed without equivocation that: (QB p. 712) “No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.”

29.In A.P. State Financial Corpn. v. GAR Re-Rolling Mills43 and State of Maharashtra v. Prabhu44 this Court observed that a writ court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the courts are obliged to do justice by promotion of good faith. “Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.”

30.In Shrisht Dhawan v. Shaw Bros45. it has been held as under: (SCC p. 553, para 20)

“20. Fraud and collusion vitiate even the most solemn proceedings

in any civilised system of jurisprudence. It is a concept descriptive of human conduct.”

39 [(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] 42 [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341 (CA)] 44 [(1994) 2 SCC 481 : 1994 SCC (L&S) 676 : (1994) 27 ATC 116]

31.In United India Insurance Co. Ltd. v. Rajendra Singh46 this Court observed that “Fraud and justice never dwell together” (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.

32.The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi47, Union of India v. M. Bhaskaran48, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav49, State of Maharashtra v. Ravi Prakash Babulalsing Parmar50, Himadri Chemicals Industries Ltd. v. Coal Tar Refining Co.51 and Mohd. Ibrahim v. State of Bihar52.

33.Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression “fraud” involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. [Vide Vimla (Dr.) v. Delhi Admn.53, Indian Bank v. Satyam Fibres (India) (P) Ltd.54, State of A.P. v. T. Suryachandra Rao55, K.D. Sharma v. SAIL56 and Central Bank of India v. Madhulika Guruprasad Dahir57.

34.An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Chengalvaraya Naidu58, Gowrishankar v. Joshi Amba Shankar Family Trust59, Ram Chandra Singh v. Savitri Devi60, Roshan Deen v. Preeti Lal61, Ram 46 [(2000) 3 SCC 581 : 2000 SCC (Cri) 726 : AIR 2000 SC 1165] 47 [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14 ATC 766] 48 [1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94] 49 [(2004) 6 SCC 325 : 2005 SCC (L&S) 785] 50 [(2007) 1 SCC 80 : (2007) 1 SCC (L&S) 5] 52 [(2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] 53 [AIR 1963 SC 1572 : (1963) 2 Cri LJ 434] 57 [(2008) 13 SCC 170 : (2009) 1 SCC (L&S) 272] 61 [(2002) 1 SCC 100 : 2002 SCC (L&S) 97 : AIR 2002 SC 33] Preeti Yadav v. U.P. Board of High School & Intermediate Education62 and Ashok Leyland Ltd. v. State of T.N.63

35.In Kinch v. Walcott64 it has been held that:

“… mere constructive fraud is not, at all events after long delay,

sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury”.

Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury.”

36.From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est.” (H) In Badami v. Bhali65 a discussion was as under: - “29. Presently, we shall refer as to how this Court has dealt with concept of fraud. In S.B. Noronah v. Prem Kumari Khanna66 while dealing with the concept of estoppel and fraud a two-Judge Bench has stated that: (SCC p. 58, para 20)

“20. It is an old maxim that estoppels are odious, although

considerable inroad into this maxim has been made by modern law. Even so, ‘a judgment obtained by fraud or collusion, even, it seems, a judgment of the House of Lords, may be treated as a nullity’. (See Halsbury's Laws of England, Vol. 16, 4th Edn., para 1553.) The point is that the sanction granted under Section 21, if it has been procured by fraud or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.”

30.In S.P. Chengalvaraya Naidu v. Jagannath67 this Court commenced the verdict with the following words: (SCC p. 2, para 1)

“1. ‘Fraud avoids all judicial acts, ecclesiastical or temporal’

observed Chief Justice Edward Coke of England about three 63 [(2004) 3 SCC 1 : AIR 2004 SC 2836] ) 64 [1929 AC 482 : 1929 All ER Rep 720 (PC)] centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of the law. Such a judgment/decree—by the first court or by the highest court—has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.”

In the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands.”

32.In Shrisht Dhawan v. Shaw Bros.68 it has been opined that the fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It has been defined as an act of trickery or deceit. The aforesaid principle has been reiterated in Roshan Deen v. Preeti Lal69, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education70 and Ram Chandra Singh v. Savitri Devi71.

33.In State of A.P. v. T. Suryachandra Rao72 after referring to the earlier decision this Court observed as follows: (SCC p. 155, para 16)

“16. In Lazarus Estates Ltd. v. Beasley73 Lord Denning observed

at QB p. 712:

‘… No judgment of a court, no order of a minister, can be allowed

to stand if it has been obtained by fraud. Fraud unravels everything.’

In the same judgment Lord Parker, L.J. observed that fraud

‘vitiates all transactions known to the law of however high a

degree of solemnity’ (Lazarus case74, QB p. 722).”

34.Yet in another decision Hamza Haji v. State of Kerala75 it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof.

69 [(2002) 1 SCC 100 : 2002 SCC (L&S) 97 : AIR 2002 SC 33] 73 [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341] 74 [(1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341]

38.All these reasonings are absolutely non-plausible and common sense does not even remotely give consent to them. It is fraudulent all the way. The whole thing was buttressed on the edifice of fraud and it needs no special emphasis to state that what is pyramided on fraud is bound to decay. In this regard we may profitably quote a statement by a great thinker:

“Fraud generally lights a candle for justice to get a look at it; and

rogue's pen indicts the warrant for his own arrest.” ”

38.We heard the learned Solicitor General, the learned Senior Counsel for Smriti and Mr. Anunaya Mehta (who had earlier represented Perry) as an Officer of the Court.

(A) The learned Solicitor General submitted that as the order of custody was obtained by Perry by practising fraud upon the Court, not only the Judgment dated 28.10.2010 and the Order dated 08.12.2020 be recalled but the Guardianship Proceeding initiated by Perry be also dismissed. It is submitted that the conduct exhibited by Perry would call for initiation of proceeding in contempt and an appropriate notice be issued to him. It was further submitted that the custody of Aditya so obtained by Perry and continues to be illegal and invalid. In his submission, now that Aditya is in Kenya, certain proceedings might have to be initiated by Smriti in Kenya apart from defending the proceeding initiated by Perry in Kenya. He submitted that the Indian High Commission in Kenya would provide all logistical support to Smriti in such action(s) to be initiated or defended by her.

(B) Mr. Amarjit Singh Chandhiok and Ms. Sonia Mathur, learned Senior Advocates appearing for Smriti supported the submissions of the learned Solicitor General that the Judgment dated 28.10.2010 and Order dated 08.12.2020 passed by this Court be recalled and proceeding in Contempt jurisdiction be initiated. They further submitted that since the custody of Aditya was obtained in a fraudulent manner, Central Bureau of Investigation be directed to register a crime against Perry for having committed criminal offences punishable under Sections 361, 362 and 363 of the IPC76. It was also submitted that the learned Solicitor General be asked to make appropriate request to the Attorney General for Kenya so that the process would be expedited and Aditya would be brought back as early as possible.

(C) Mr. Anunaya Mehta, learned Advocate fairly accepted that the conduct of Perry was indefensible and supported the course of action suggested by the learned Solicitor General.

39.Though, at every juncture solemn undertakings were given by Perry to the High Court and this Court, such undertakings 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 76 The Indian Penal Code, 1860 jurisdiction of the Indian Courts. Such conduct, prime 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.

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.

41.It is true that Aditya is now in Kenya. But he was taken to Kenya only on the basis of fraudulently obtained orders from this Court. In our considered view, the Indian Courts which were the Courts of first contact and had complete jurisdiction over Aditya, must continue to exercise such power and jurisdiction to correct the wrongs which occurred as a result of fraudulent conduct on part of Perry. It may be stated here that at every juncture, welfare of Aditya was and will always continue to be the primary consideration for the Indian Courts. He was interviewed by very competent and qualified Counsellors whose reports and assessments have been part of the record. Aditya was also interviewed by the Trial Court, the High Court and this Court. At no stage any mistreatment by Smriti was even remotely suggested or adverted to by Aditya. After Aditya is brought back to this country, this Court will certainly have appropriate interactions with Aditya to understand his wishes while considering his welfare.

42.In the premises, we pass following directions: - (A) The Judgment dated 28.10.2020 and the Order dated 08.12.2020 passed by this Court are recalled.

(B) The Guardianship Petition No.53 of 2012 filed by Perry in the District Court, Saket, New Delhi seeking permanent custody of Aditya and the resultant proceedings arising therefrom including MAT APP (F.C.) No.30 of 2018 filed in the High Court, are dismissed. (C) The Orders granting custody having been recalled, the custody of Aditya with Perry is declared to be illegal and ab initio void. (D) Issue notice to Perry as to why proceedings in contempt jurisdiction be 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. (E) The notice shall additionally be served through e-mail directed at the e-mail id used by Perry in communicating with Smriti. The details in that behalf shall be furnished to the Registry by Smriti within two days. (F) The Central Bureau of Investigation, 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.

(G) 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 Smriti in securing the custody of Aditya.

(H) 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 Smriti towards legal expense incurred or required to be incurred hereafter. Rest of the money shall continue to be kept in deposit with the Registry till further orders.

43.With these directions, Miscellaneous Application No.1167 of 2021 and connected Interim Applications are disposed of.