Factors examined in a transnational guardianship case while considering a child’s best interests
November 19, 2020
SMK v PK
Supreme Court of India
Civil Appellate Jurisdiction
Civil Appeal No. 3559 of 2020
UU Lalit, I Malhotra & H Gupta, SCJJ
October 28, 2020
Reported by Faith Wanjiku
Constitutional Law – rights of a child- best interest principle – where a child was involved in a transnational guardianship case – what were the essentials of the welfare and best interest principle of a child.
Family Law –guardianship – appointment of a guardian by a court – where a guardianship case was of transnational nature – factors to consider – what factors were to be examined in a transnational guardianship case while considering the child’s best interests – Guardian and Wards Act, 1890, section 17
International Family Law – mirror orders – scope and nature of – where the welfare of a child living in another country needed to be protected – supervisory jurisdiction of courts of the country of the original order – what was the scope and nature of mirror orders and whether they could ensure the continued supervisory jurisdiction of courts of the country of the original order which was essential for a child’s welfare.
The marriage between the parties was solemnized at New Delhi and a male child, AVK (minor) was born out of wedlock at New Delhi. The parties had been living separately since April 26, 2012. The appellant was an Indian citizen whereas the respondent and the child had dual citizenship of Kenya and United Kingdom. The child also had been granted OCI (Overseas Citizen of India).
The legal proceedings began after the mother filed a lawsuit for a permanent injunction restricting the father and his parents from removing the minor child from her custody. During the ongoing litigation, various orders were passed regarding visitation rights to the father. Then in November 2012, the father moved a petition under section 7 of the Guardians and Wards Act, 1890 before the Family Court at Saket.
In 2018, a family court upheld the judgment granting custody of the child to the father. The order was affirmed by Delhi High Court in February, 2020. Thereafter, the mother decided to approach Supreme Court to appeal the High Court judgment.
- What were the essentials of the welfare and best interest principle of a child?
- What factors were to be examined in a transnational guardianship case while considering the child’s best interests?
- What was the scope and nature of mirror orders and whether they could ensure the continued supervisory jurisdiction of courts of the country of the original order which was essential for a child’s welfare?
Relevant provisions of the law
Guardian and Wards Act, 1890
Section 17 – Matters to be considered by the Court in appointing guardian
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(5) The Court shall not appoint or declare any person to be a guardian against his will.
Held by majority
- Courts while exercising parens patriae jurisdiction would be guided by the sole and paramount consideration of what would best subserve the interest and welfare of the child, to which all other considerations had to yield. The welfare and benefit of the minor child would remain the dominant consideration throughout. The courts had to not allow the determination to be clouded by the inter se disputes between the parties, and the allegations and counter-allegations made against each other with respect to their matrimonial life.
- To decide the issue of the best interest of the child, the court would take into consideration various factors, such as the age of the child; nationality of the child; whether the child was of an intelligible age and capable of making an intelligent preference; the environment and living conditions available for the holistic growth and development of the child; financial resources of either of the parents which would also be a relevant criterion, although not the sole determinative factor; and future prospects of the child. A court while dealing with custody cases, was neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and wellbeing of the child.
- In selecting a guardian, the court was exercising parens patriae jurisdiction and was expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values could not be ignored. They were equally, or even more important, essential and indispensable considerations. If the minor was old enough to form an intelligent preference or judgment, the court had to consider such preference as well, though the final decision should rest with the court as to what was conducive to the welfare of the minor.
- In the instant case, the issue of custody of the minor had to be based on an overall consideration of the holistic growth of the child, which had to be determined on the basis of his intelligent preferences as mandated by section 17(3) of the Guardians and Wards Act, 1980, the best educational opportunities which would be available to him, adaptation to the culture of the country of which he was a national, and where he was likely to spend his adult life, learning the local language of that country, exposure to other cultures which would be beneficial for him in his future life.
- In the instant case, the minor was by now almost 11 years of age. It had been observed by the Family Court, the child counsellor, and the High Court in their personal interactions with the child at different stages of the proceedings, that he was a bright and articulate child, who was capable of unequivocally expressing his preferences and aspirations.
- What emerged from all those interactions of the minor with the courts since 2016 when he was 6 years old, till the present when he was almost 11 years old, was a very positive attitude towards his father and paternal grandparents, even though he had not lived with them since the age of two and a half years when he was a toddler and had come to India on a visit in March 2012, after which he did not go back.
- In view of the various personal interactions which the courts had had with the minor at different stages of the proceedings, from the age of 6 years, till the present when he was now almost 11 years old, it would be in his best interest to transfer the custody to his father. If his preferences were not given due regard to, it could have an adverse psychological impact on the child.
- Having considered his preferences and aspirations, the court would then consider other aspects with respect to the welfare of the child.
- The minor was a citizen of Kenya and U.K., even though he was born in India. Evidently, his parents took a conscious decision to obtain dual citizenship of Kenya and U.K. for him soon after his birth, when he ceased to be an Indian citizen, by virtue of the Explanation to Clause 2 of Rule 7 of the Registration of Foreigners’ Rules, 1982 and Section 9 of the Citizenship Act, 1955. The minor traveled to India in 2012 on a Kenyan passport, with an OCI card attached to his passport. The Kenyan passport was cancelled in 2016 when a non-cognizable report was filed by the appellant regarding the loss of his passport. Subsequently, no steps were taken to obtain a fresh Kenyan passport to date. The factum of his nationality was a relevant aspect which had to be given due consideration while deciding the issue of custody of the child.
- The educational opportunities which would be available to the child was an aspect of great significance while determining the best interest of the child. It was submitted on behalf of the respondent that he had secured admission for the minor in the Nairobi International School, which followed the IB curriculum. That would be more beneficial to him, given the fact that he was a dual citizen of Kenya and United Kingdom, and intended to pursue further education overseas. Being a citizen of United Kingdom, the child would get various opportunities as a citizen for admission to some of the best universities for further education, which would be in his best interest.
- It was necessary that the minor got greater exposure by overseas travel. It was important for him to be exposed to different cultures, which would broaden his horizons, and facilitate his all-round development, and would help him in his future life.
- The minor child was the heir apparent of a vast family business established by the family of the respondent in Kenya and U.K. Since the businesses of the paternal family were primarily established in Kenya and the U.K., it would be necessary for the minor to imbibe and assimilate the culture and traditions of the country where he would live as an adult. It would also be necessary for him to learn the local language of Kiswahili, and adapt himself to the living conditions and surroundings of the country. Since the child was still in his formative years of growth, it would be much easier for him to imbibe and get acclimatized to the new environment.
- The minor child had been in the exclusive custody of his mother from birth till adolescence, which was the most crucial formative period in a person’s life. Having completed almost 11 years in her exclusive custody, the minor was then entitled to enjoy the protection and care of his father, for his holistic growth and development. However, the appellant’s continued participation in the growth and development of the child would be crucial. It had to be recognized that the appellant had given her best to the minor, and had him admitted in one of the best public schools in Delhi. The credit had to also go to her for ensuring that the child was emotionally balanced, and had not tutored him against his father and paternal family.
- The objection raised by the appellant regarding the respondent being racist had not been established from the material on record. The respondent and his family had been living in Kenya for over 85 years, and had established an extensive business in that country. There was no evidence brought on record to substantiate the allegation, except an oral submission made on behalf of the appellant. No importance could be given to that objection as a ground for refusing custody of the child to the appellant.
- With respect to the allegation of alcoholism and excessive drinking made by the appellant, both the Family Court and the High Court had considered that objection at length and considered the evidence led by her in that regard. She had produced R.W.2, a practicing advocate from the chambers of her counsel, who had deposed with respect to two incidents which allegedly took place at social events in Delhi. The courts below were of the view that R.W.2 was an interested witness, and his evidence could not be relied upon, and had to be disregarded. The Supreme Court therefore rejected that objection as being unsubstantiated.
- The allegation of marital infidelity made by the appellant as a ground to refuse custody to the respondent, had been seriously disputed by him. The allegation was based on certain messages which the appellant submitted that she stumbled upon, when the respondent was visiting India in April 2012. The certificate u/S. 65B produced by the appellant merely stated that the content of the emails placed on record were the same as the content of the emails on her inbox. That certificate did not certify the source of the messages allegedly received on the Blackberry of the respondent, which were transferred to her cellphone. In the absence of a certificate in accordance with section 65B of the Indian Evidence Act on admissibility of electronic records, with respect to the source of the messages, the Supreme Court could not accept the same as being genuine or authentic. Oral evidence in the place of such certificate could not possibly suffice as section 65B (4) was a mandatory requirement of the law.
- The Family Court rejected the allegations of marital infidelity based on the aforesaid emails. The High Court also held that the emails were dated May 5, 2012 and May 6, 2012; on which dates, the appellant could not have had access to the Blackberry of the respondent, since the respondent had left India on April 26, 2012, which had been admitted by the appellant in her examination in chief. The Supreme Court was thus unable to place reliance on the emails with respect to the allegations of marital infidelity and affirmed the findings of the Family Court and High Court in that regard.
- It would be in the best interest of the minor, if his custody was handed over to his father, the respondent. Once the minor shifted to Kenya, he would be required to adapt to a new environment and study in a new educational system with a different curriculum. It would be in the best interest of the minor if he was able to go to Kenya at the earliest, so that he had some time to adapt to the new environment, before the new term started in January 2021 in the Nairobi International School. That would, however, not imply that the appellant would be kept out of the further growth, progress and company of her son. The appellant would be provided with temporary custody of the child for 50% of his annual vacations once a year, either in New Delhi or Kenya, wherever she liked. The appellant would also be provided access to the minor through emails, cellphone and Skype during the weekends.
- To safeguard the rights and interest of the appellant, the respondent would obtain a mirror order from the concerned court in Nairobi, which would reflect the directions contained in the judgment. Given the large number of cases arising from transnational parental abduction in intercountry marriages, the English courts had issued protective measures which took the form of undertakings, mirror orders, and safe habour orders, since there was no accepted international mechanism to achieve protective measures. Such orders were passed to safeguard the interest of the child who was in transit from one jurisdiction to another. The courts had found mirror orders to be the most effective way of achieving protective measures.
- In international family law, it was necessary that jurisdiction was exercised by only one court at a time. It would avoid a situation where conflicting orders could be passed by courts in two different jurisdictions on the same issue of custody of the minor child. Those orders were passed keeping in mind the principle of comity of courts and public policy. The object of a mirror order was to safeguard the interest of the minor child in transit from one jurisdiction to another, and to ensure that both parents were equally bound in each state. The mirror order was passed to ensure that the courts of the country where the child was being shifted were 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 was losing custody, so that the rights of visitation and temporary custody were not impaired.
- The judgment of the court which had exercised primary jurisdiction of the custody of the minor child was however not a matter of binding obligation to be followed by the court where the child was being transferred, which had passed the mirror order. The judgment of the court exercising primary jurisdiction would however have great persuasive value.
Appeal dismissed with no order as to costs.
- The respondent was to obtain a mirror order from the concerned court in Nairobi to reflect the directions contained in the judgment, within a period of 2 weeks from the date of the judgment. A copy of the Order passed by the court in Nairobi had to be filed before the Supreme Court;
- After the mirror order was filed before the Supreme Court, the respondent would deposit a sum of INR 1 Crore in the Registry of the Supreme Court, which would be kept in an interest bearing fixed deposit account (on auto-renewal basis), for a period of two years to ensure compliance with the directions contained in the judgment. If the Supreme Court was satisfied that the respondent had discharged all his obligations in terms of the aforesaid directions of the Supreme Court, the aforesaid amount would be returned with interest accrued thereon to the respondent;
- The respondent would apply and obtain a fresh Kenyan passport for the minor, the appellant would provide full cooperation, and not cause any obstruction in that behalf;
- Within a week of the mirror order being filed before the Supreme Court, the appellant would provide the Birth Certificate and the Transfer Certificate from Delhi Public School, to enable the respondent to secure admission of the minor to a School in Kenya;
- The appellant would be at liberty to engage with the minor on a suitable videoconferencing platform for one hour over the weekends; further, the minor was at liberty to speak to his mother as and when he desired to do so;
- The appellant would be provided with access and visitation rights for 50% once in a year during the annual vacations of the minor, either in New Delhi or Kenya, wherever she liked, after due intimation to the respondent;
- The respondent would bear the cost of one trip in a year for a period of one week to the appellant and her mother to visit the minor in Kenya during his vacations. The costs would cover the air fare and expenses for stay in Kenya;
- The appellant would not be entitled to take the minor out of Nairobi, Kenya without the consent of the respondent;
- The parties would file undertakings before the Supreme Court, stating that they would abide and comply with the directions passed by the Supreme Court without demur, within a period of one week from the date of the judgment.
- As an interim measure, till such time that the respondent was granted full custody of the child, he would be entitled to unsupervised visitation with overnight access during weekends when he visited India, so that the studies of the minor were not disturbed. The respondent and his parents would be required to deposit their passports before the Registrar of the Supreme Court during such period of visitation. After the visitation was over, the passports would be returned to them forthwith.
- The appeal would be listed before the Supreme Court after a period of four weeks to ensure compliance with the aforesaid directions, and on being satisfied that all the afore-stated directions were duly complied with, the custody of the minor would be handed over by the appellant to the respondent.
Per H Gupta, SCJ(Dissenting opinion)
- The appellant had no disability so as to take custody from her. She was well educated, was a practicing advocate who left her law practice to nurture her child. Therefore, she has the maturity and sense of judgment. She had mental stability as even though the parties were at loggerheads, the child had a cordial relation with the respondent. There was no valid plausible reason to take custody of child from the appellant to hand over to the respondent as a chattel.
- Delhi Public School was one of the prestigious schools in National Capital Region. The child was studying in the said school since 2013. There was no doubt that there were good schools in Kenya as well however the education of the child in Delhi Public School could not be said to be in any way inferior to the education in Kenya. At times, people tended to believe that other countries were better in every sphere as compared to India, though it was true. Therefore, shifting of child at that stage of life would be counter-productive to the growth of child.
- Both lower courts had misread the printouts on the alleged messages inferring marital infidelity to hold that they were not proved as the respondent was not in India in the month of May, 2012. Both lower courts overlooked the fact that the messages were forwarded by the appellant to her mobile on April 22, 2012 when admittedly the respondent was staying with the appellant at her house in Defence Colony. He left India only on April 26, 2012. The messages were sent from the Indian mobile number used by the respondent. The respondent had not given any explanation how the messages came to be delivered to his phone. The denial of knowing Ms. Sonia was of no consequence as it was for him to explain how the messages were in his mobile. The conduct of the respondent in April, 2012 in reference to the exchange of messages with a woman were enough to create bitterness in the relationship of the parties.
- The appellant had left her active law practice to nurture her child. She had relatives in Delhi and also in many other cities. She was continuously involved in providing healthy and holistic upbringing of the child. Though the respondent had been regularly visiting India every month to visit the child, that did not entitle him to the guardianship of the child as he was not a truthful person. He had the audacity to deny the marriage proposed initially through a matrimonial advertisement. He had not led evidence in respect of sexually explicit messages received by him from another woman. He had been found to pamper child which had the potential of derailing the education and further upbringing in the crucial years of teens.
- The welfare of the child would be to stay in India with his mother who had brought up the child for last 11 years. The child was intelligent but not mature enough to take decisions by himself. Even, the law recognized that the child of less than 18 years was incapable of representing himself. Therefore, any opinion of the child was not determinative of the final custody of the child but the Supreme Court as parens patriae was duty bound to assess the entire situation to return a finding whether the welfare of the child would be with the mother with visitation rights to the father or custody with the father with visitation rights to the mother. If the child was moved to Kenya, there was no way that the Supreme Court could enforce the orders to get the child back to India, even if it so desired.
- In the present case, the child had grown up in India in the last 11 years. At that age, the child would be exposed to physical and psychological harm, if he was shifted to Kenya amongst fellow students and teachers but without any friends. He would be taken care of by nannies, maids with libera pampering by the grandparents and the father.
- The order of the High Court granting visitation rights for one week was a farce. The respondent had been coming to India quite frequently and had unsupervised visitation rights over the child as well. Therefore, instead, it would be in the interest of justice, if the respondent was given unsupervised visitation rights in India or abroad for a month during summer or winter holidays either in parts or consecutively. The travel documents of the child would be retained by the appellant so that child was not removed from the jurisdiction of the Supreme Court, if the child was with the respondent in India. The appeal would be allowed with the orders passed by the Family Court and the High Court set aside and grant of visitation rights to the respondent. However, liberty would be given to the parties to seek further orders, as could be required from time to time, from the Family Court, New Delhi.
Relevance to the Kenyan Situation Child custody cases in Kenya are not a new thing and happen almost on a daily basis in the Kenyan courts. Be that as it may, the rights of a child mirrored through the best interest principle are always upheld in the legal system.
The Constitution of Kenya, 2010, being the supreme law of the land, protects the rights of a child in its Article 53. Particularly, sub-article (2) provides that a child’s best interests are of paramount importance in every matter concerning the child.
The Children Act No. 8 of 2001 was enacted to make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children; to make provision for the administration of children’s institutions. Section 83 goes ahead to provide for considerations the court looks at in determining whether or not a custody order should be made in favour of an applicant, which include the conduct and wishes of the parent or guardian of the child, the ascertainable wishes of the child and the best interests of the child.
There are also international laws such as the Convention on the Rights of the Child, 1989 and the African Charter on the Rights and Welfare of the Child, 1990, protecting the rights of a child.
There are also cases on child custody determined while echoing protection of the rights of the child in Kenya as seen below;
In JKN v HWN  eKLR, the court held that when determining child custody, the general principle was that custody of young children should be awarded to the mother unless special circumstances and peculiar circumstances existed to disqualify her from being awarded custody. What amounted to the exceptional circumstances depended on each case and would include; if the mother was unsettled, had taken a new husband, her quarters were in a deplorable condition, disgraceful conduct, immoral behaviour, drunken habit, or bad company. This was also echoed in JO v SAO (2016) eKLR.
In BK v EJH  eKLR, the court held that the test for the best interest of a child was not subjectively dictated by the selfish whims of a child. There had to be an element of objectivity. A child’s wish to stay with a particular parent might not be in his best interest. In such a situation, his own preference could not be automatically allowed. The wishes and feelings of a child had to therefore be treated with a lot of caution.
In MAA v ABS (Civil Appeal No. 32 of 2017), the court held that the interest of the children was first and paramount and everything had to be done to safeguard, conserve and promote the rights and welfare of the children.
As can be seen above, Kenyan courts have held the same as the Supreme Court of India on the best interests of the child in custody/guardianship cases. However, each custody case is different and its unique circumstances are always looked into in addition to the legal provisions. The Supreme Court of India sets out the law and also analyses the unique facts of the case to determine who among the two parties should be granted custody of the minor in an intercountry marriage situation and therefore brings out factors to be considered in such a situation. On top of that, it makes an order for a mirror order from a Nairobi court which will be meant 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 interest of the parent who is losing custody is also protected, so that the rights of visitation and temporary custody are not impaired. The Supreme Court of India case is therefore very jurisprudential in matters guardianship/custody of children being of a transnational nature.