IN RE: PERRY KANSAGRA versus IN RE: PERRY KANSAGRA on 3 November 2022

1. This decision on Sentencing will be in continuation of ourjudgment dated 11.07.2022 by which Perry Kansagra (hereinafterreferred to as the ‘contemnor’) was convicted for acts of civil as wellas criminal contempt of this Court. For passing the consequential orderof Sentence, we adjourned the case several times[1] and after beingsatisfied that sufficient opportunity was given to the contemnor, weproceeded to hear the learned Senior Counsel Ms. Sonia Mathur forSmriti Kansagra (wife of the contemnor and mother of their son Aditya)the Additional Solicitor General and reserved the case for orders. Bythis judgment, we will consider and pass appropriate orders of Sentence.

2. The facts necessary for the disposal of this order may brieflybe stated as under. The contemnor married Smriti, an Indian citizen, on29.07.2007 in New Delhi. Initially, the couple stayed in Nairobi, Kenyabut Smriti returned to India in 2009, and the couple was blessed with ason - Aditya, on 02.12.2009 in New Delhi. Except for a brief period,when the couple went to Kenya in 2012, Aditya always stayed withSmriti in Delhi. We may mention here itself that this position continuedtill the custody of Aditya was handed over to the contemnor for movinghim to Kenya as per the orders of this Court. The subsequent incidentsthat led to the recall of the orders of this Court and the judgment ofconviction for contempt are all part of the Court proceedings, whichunfolded as follows.

3. A Guardianship Petition No. 53 of 2012 was filed by thecontemnor before the District Court, Saket, for declaration of legalguardianship. After the contest, the petition came to be allowed by orderdated 12.01.2018. Smriti challenged the said order before the High Courtof Delhi. By its judgment dated 25.02.2020, the High Court affirmed thedecision of the District Court granting custody of Aditya to his father,the contemnor. By a separate order passed on the same date, the HighCourt recorded the willingness of the contemnor and his mother, holdingan Indian passport, to ensure compliance with the order of the FamilyCourt granting continued access and visitation rights to Smriti. Thedirection of the High Court that the contemnor shall also file an 1After the judgment dated 11.07.2002 the case was listed on 22.07.2022, 27.09.2022,30.09.2022, 17.10.2022 and 21.10.2022.

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Aundertaking before the Indian Embassy that he would submit to thejurisdiction of the Indian Courts was complied with, and it is part of thecourt record.

4. Smriti challenged the decision of the High Court before thisCourt in Civil Appeal No. 3559 of 2020. The majority decision of thisBCourt, while affirming the findings of the High Court, disposed of theCivil Appeal on 28.10.2020 with the following observations: - “(a) To safeguard the rights and interest of Smriti, we haveconsidered it necessary to direct Perry to obtain a mirror orderfrom the concerned court in Nairobi, which would reflect theCdirections contained in this Judgment.

(b) Given the large number of cases arising from transnational-parental abduction in intercountry marriages, the Englishcourts have issued protective measures which take the formof undertakings, mirror orders, and safe harbour orders, sincethere is no accepted international mechanism to achieveprotective measures. Such orders are passed to safeguard theinterest of the child who is in transit from one jurisdiction toanother. The courts have found mirror orders to be the mosteffective way of achieving protective measures.

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E(c) The primary jurisdiction is exercised by the court wherethe child has been ordinarily residing for a substantial periodof time, and has conducted an elaborate enquiry on the issueof custody. The court may direct the parties to obtain a “mirrororder” from the court where the custody of the child is beingshifted. Such an order is ancillary or auxiliary in character,Fand supportive of the order passed by the court which hasexercised primary jurisdiction over the custody of the child.In International Family Law, it is necessary that jurisdictionis exercised by only one court at a time. It would avoid asituation where conflicting orders may be passed by courts inGtwo different jurisdictions on the same issue of custody of theminor child. These orders are passed keeping in mind theprinciple of comity of courts and public policy. The object ofa mirror order is to safeguard the interest of the minor childin transit from one jurisdiction to another, and to ensure thatboth parents are equally bound in each State.

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The mirror order is passed to ensure that the courts of thecountry where the child is being shifted are aware of thearrangements which were made in the country where he hadordinarily been residing. Such an order would also safeguardthe interest of the parent who is losing custody, so that therights of visitation and temporary custody are not impaired.”

The Court, further directed as follows: - “(a) We direct Perry Kansagra to obtain mirror order fromthe concerned court in Nairobi to reflect the directionscontained in this judgement, within a period of 2 weeks fromthe date of this judgment. A copy of the Order passed by thecourt in Nairobi must be filed before this Court; (b) After the mirror order is filed before this Court, Perryshall deposit a sum of INR 1 Crore in the Registry of thisCourt, which shall be kept in an interest-bearing fixed depositaccount (on auto- renewal basis), for a period of two yearsto ensure compliance with the directions contained in thisjudgment.

If this Court is satisfied that Perry has discharged all hisobligations in terms of the aforesaid directions of this Court,the aforesaid amount shall be returned with interest accrued,thereon to the respondent;

(c) Perry will apply and obtain a fresh Kenyan passport forAditya, Smriti will provide full co- operation, and not causeany obstruction in this behalf; (d) Within a week of the mirror order being filed before thisCourt, Smriti shall provide the Birth Certificate and theTransfer Certificate from Delhi Public School, to enable Perryto secure admission of Aditya to a School in Kenya; (e) Smriti will be at liberty to engage with Aditya on a suitablevideo-conferencing platform for one hour over the weekends;further, Aditya is a liberty to speak to his mother as and whenhe desires to do so; (f) Smriti would be provided with access and visitation rightsfor 50% once in a year during the annual vacations of Aditya,either in New Delhi or Kenya, wherever she likes, after dueintimation to Perry; AB

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SUPREME COURT REPORTS

(g) Perry will bear the cost of one trip in a year for a periodof one week to Smriti and her mother to visit Aditya in Kenyaduring his vacations. The costs will cover the air fare andexpenses for stay in Kenya; A

(h) Smriti will not be entitled to take Aditya out of Nairobi,Kenya without the consent of Perry; B

(i) We direct Perry and Smriti to file Undertakings before thisCourt, stating that they would abide and comply with thedirections passed by this Court without demur, within a periodof one week from the date of this judgement.

21. As an interim measure, we direct that till such time thatCPerry is granted full custody of the child, he will be entitledto unsupervised visitation with overnight access duringweekends when he visits India, so that the studies of Adityaare not disturbed. Perry and his parents would be required todeposit their passports before the Registrar of this CourtDduring such period of visitation. After the visitation is over,the passports shall be returned to them forthwith.

22. This appeal shall be listed before the Court after a periodof four weeks to ensure compliance with the aforesaiddirections, and on being satisfied that all the afore-statedEdirections are duly complied with, the custody of Aditya VikramKansagra shall be handed over by his mother Smriti Kansagrato the father Perry Kansagra.”

5. Taking note of certain specific requirements and also to ensuresmooth transition of Aditya’s custody in favour of the contemnor, yetanother order was passed on 08.12.2020 with the following directions: -F

“A) Except for direction issued earlier in paragraph 20 ofthis Order, and matters accepted by the learned counsel forthe respondent, no orders are called for in respect of any ofthe directions sought for by the appellant.

B) All the directions issued in paragraph 20 of the Judgmenthold good, with the addition of the one issued in paragraph20 of this Order.

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C) A further affidavit shall be filed by the respondent withinthree days of this Order, that he shall abide by this Order andthe additional direction issued in paragraph 20 of this Order.

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D) The respondent is not required to obtain any fresh MirrorOrder in respect of the aforesaid additional direction, beforeAditya is taken to Kenya, and it shall be sufficient if anappropriate application to have this Order registered, in thesame manner as the Judgment was registered, is preferredwithin two weeks of Aditya reaching Kenya, and the copy ofsuch registration is thereafter filed in this Court at the earliest.

E) After filing of the further affidavit as stated above, therespondent shall be at liberty to take Aditya to Kenya asdirected earlier in the Judgment.”

6. After the above-referred orders dated 28.10.2020 and08.12.2020, followed by custody of Aditya to the contemnor, what reallytranspired came to light with the filing of M.A. No. 1167 of 2012 bySmriti complaining of total and absolute disobedience of this Court’sOrders.

7. Having considered the matter in detail, this Court, by itsjudgment dated 07.10.2021, recalled its earlier orders dated 20.08.2020and 08.12.2020. The relevant portion of the order is as under:- “34. The documents and the developments referred tohereinabove show:-

(i) Perry had given an unequivocal undertaking to the HighCourt that he would submit to the jurisdiction of the IndianCourts. He had also given a solemn undertaking to this Courtthat he would comply with the Order dated 28.10.2020 inaddition to the Judgment dated 28.10.2020.

(ii) In response to a specific submission raised inMiscellaneous Application No. 2140 of 2020 (quoted inparagraph 16 hereinabove), it was submitted by Perry thathe had subjected himself to the jurisdiction of this Court.While dealing with the rival submissions in the Order dated8.12.2020, this Court made it clear that the undertaking givenby 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 Perryto obtain a ‘Mirror Order’ from the concerned Court inNairobi to reflect the directions contained in the Judgment AB

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dated 28.10.2020. Thereafter, the Order dated 9.11.2020passed by the High Court of Kenya at Nairobi along with therelevant application moved by Perry seeking registration ofthe Judgment dated 28.10.2020, was filed in this Court.

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(iv) There was a dispute whether the registration granted videorder dated 9.11.2020 by the High Court of Kenya at Nairobiamounted to fulfilling the requirement of a “Mirror Order”.The submissions on the point were dealt with in paragraphs 8and 9 of the Order dated 8.12.2020. The learned counselappearing for Perry had relied upon the opinion given by M/s. GMC Advocates which in turn had relied upon the decisionof the High Court of Kenya at Nairobi in Re : Matter of I W P(Infant) [2013] eKLR to submit that the registration itself wasa “Mirror Order” in compliance of the requirements of theJudgment dated 28.10.2020.

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Relying on the submissions so advanced on behalf of Perryand in deference to the Order dated 9.11.2020 passed by theHigh Court of Kenya at Nairobi, in paragraph 10 of the Orderdated 8.12.2020, this Court observed that the registration ofthe Judgment of this Court by the High Court of Kenya atNairobi was sufficient compliance of the directions to obtaina “Mirror Order” issued from a Competent Court in Kenya.

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(v) The Judgment dated 28.10.2020 and the Order dated8.12.2020 passed by this Court were thus premised on thesubmission that the Order dated 9.11.2020 passed by the HighCourt of Kenya at Nairobi while registering the JudgmentFdated 28.10.2020 passed by this Court was in fact the “MirrorOrder”.

(vi) It now transpires that by a subsequent Order dated21.5.2021, the High Court of Kenya at Nairobi in Paragraph13 of its order observed that the judgment of this Court wasnot registrable and dismissed the Originating Summons dated30.10.2020 filed by Perry.

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(vii) At no stage Perry brought this development to the noticeof this Court that the Originating Summons moved by himseeking registration of the Judgment dated 28.10.2020 passedby this Court was dismissed by the High Court of Kenya at H

Nairobi on 21.5.2021. Having submitted to the jurisdictionof the Indian Courts it was the bounden duty of Perry to keepthis Court appraised of all the developments particularly whenthe “Mirror Order” was the fulcrum on the basis of whichthis Court handed over to him the custody of Aditya.

(viii) This infraction gets more pronounced in the light of thestand taken in his Affidavit dated 5.8.2021 filed in this Courtand referred to in Paragraph 22 hereinabove. In that affidavitPerry unequivocally stated that he had not even the remotestintention to disobey the Order passed by this Court includingthe Judgment dated 28.10.2020. Yet, something as basic andfundamental like the Order dated 21.05.2021 was not broughtto the notice of this Court. Logically, Perry should havebrought back Aditya to this country so that status quo antecould be restored and appropriate orders could thereafter bepassed by this Court.

(ix) Miscellaneous Application No. 1167 of 2021 filed bySmriti had annexed e-mails exchanged between her and Perryand prayed that Perry be directed to comply with directionsregarding vacation access. In response, apart from statingthat he had no intentions to disobey the orders passed by thisCourt, Perry voiced concern about sending Aditya to India.Being well aware of the conditions in this Country, a solutionwas devised by this Court in its Order dated 11.08.2021 andcertain directions to facilitate the entry of Aditya into and hisexit from India in a safe manner were issued. Pertinently on11.08.2021, the attention of this Court was not invited to thefact that the Situational Report dated 09.08.2021 as referredto hereinabove was made or that the matter was being lookedinto by the concerned authorities in Kenya.

(X) Despite clear directions issued in the Order dated11.08.2021 Perry had not taken any steps to comply with theOrder. As a matter of fact, by the time the matter was taken upfor further hearing on 16.08.2021, Perry sought to withdrawthe authorization in favour of the learned counsel who wereall the while representing him before this Court.

(XI) As disclosed in I.A. 100550 of 2021 week-end Skypemeetings between Smriti and Aditya were not facilitated from A

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the week-end of 14.08.2021 and 15.08.2021. Perry alsoblocked all means of communications with Smriti. Though inlaw the learned advocates who had entered appearance onbehalf of Perry would continue to represent him, notice wasadditionally directed to be served on Perry through Indianembassy of Nairobi.

(XII) In the light of the defiant attitude exhibited by Perryand his refusal to abide by the Orders passed by this court,ad-interim relief in terms of prayers (d)(e) and (f) made bySmriti in her I.A. No. 100550 of 2021 was granted by thisCourt vide its order dated 17.08.2021.

(XIII) Finally, Petition No. E301 of 2021 and - Notice ofMotion were moved on behalf of Perry, filed in the High Courtof Kenya at Nairobi on 26.08.2021. The stand taken by Perryin said Petition and Notice of Motion is that it would behumiliating to compel Aditya to take OCI Card; that wishesof Aditya were not ascertained by this Court; that there wasno valid Mirror Order and that the orders passed by this Courtwere without jurisdiction. He has prayed for declaration thatthere existed no valid “Mirror Order” and in the circumstancesthe orders passed by this Court are incapable of complianceand/or enforcement.

35. These developments not only show the defiant andcontumacious posture now adopted by Perry but prima faciesupport the submissions of Smriti made in Interim Applicationsreferred to in paragraphs 25, 27, and 28 herein above. Thereappears to be concrete material and reason to believe that itwas a well-planned conspiracy on part of Perry to persuadethis Court to pass orders in his favour and allow him thecustody of Aditya and then turn around and defy the Ordersof this Court.

36. It is fundamental that a party approaching the Court mustcome with clean hands, more so in child custody matters. Anyfraudulent conduct based on which the custody of a minor isobtained under the orders of the Court, would negate andnullify the element of trust reposed by the Court in theconcerned person. Wherever the custody of a minor is a matter of dispute between the parents or the concerned parties, theprimary custody of the minor, in parens patriae jurisdiction,is with the Court which may then hand over the custody to theperson who in the eyes of the Court, would be the most suitableperson. Any action initiated to obtain such custody from theCourt with fraudulent conduct and design would be a fraudon the process of the Court.

39. Though, at every juncture solemn undertakings were givenby Perry to the High Court and this Court, such undertakingswere not only flagrantly violated but a stand is now takenchallenging the very jurisdiction of the Indian Courts, despitehaving submitted himself to the jurisdiction of the IndianCourts. Such conduct, prime facie, can certainly be said tobe contumacious calling for an action in contemptjurisdiction. Moreover, the non- disclosure of material factsby Perry at the relevant junctures also shows that heapproached the Indian Courts with unclean hands.

40. It was only on the basis of the solemn undertakings givenby Perry and the order dated 09.11.2020 passed by the HighCourt of Kenya at Nairobi which was projected to be a “MirrorOrder” in compliance of the directions issued by this Court,that the custody of Aditya was directed to be handed over toPerry. Since the false and fraudulent representations madeby Perry were the foundation, on the basis of which this Courtwas persuaded to handover custody of Aditya to him, it shallbe the duty of this Court to nullify, in every way, the effectand impact of the orders which were obtained by playing fraudupon the Court. All the decisions referred to hereinabove pointin that direction. This Court would therefore be well within itspower and justified to recall all the orders and continue toassume jurisdiction to ensure that the situation as it prevailedprior to the passing of the orders by the Trial Court, the HighCourt and this Court, gets restored, whereafter appropriatedecision can be taken in parens patriae jurisdiction.”Finally, the Court directed as under: - “42. In the premises, we pass following directions:

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(A) The Judgment dated 28.10.2020 and the Order dated08.12.2020 passed by this Court are recalled.

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(B) The Guardianship Petition No. 53 of 2012 filed by Perryin the District Court, Saket, New Delhi seeking permanentcustody of Aditya and the resultant proceedings arisingBtherefrom including MAT APP (F.C.) No. 30 of 2018 filed inthe High Court, are dismissed.

(C) The Orders granting custody having been recalled, thecustody of Aditya with Perry is declared to be illegal and abinitio void.

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(D) Issue notice to Perry as to why proceedings in contemptjurisdiction be not initiated against him for having violatedthe solemn undertakings given to this Court, returnable on16[th] November, 2021. The Registry is directed to register SuoMotu Contempt Case and proceed accordingly.

D(E) The notice shall additionally be served through e-maildirected at the e-mail id used by Perry in communicating withSmriti. The details in that behalf shall be furnished to theRegistry by Smriti within two days.

(F) The Central Bureau of Investigation, New Delhi throughEits Director is directed to initiate appropriate proceedings byregistering criminal proceedings against Perry and to secureand entrust the custody of Aditya to Smriti.

(G) The Secretary, Ministry of External Affairs, Governmentof India, New Delhi and the Indian Embassy in Kenya areFdirected to ensure that all possible assistance and logisticalsupport is extended to Smriti in securing the custody of Aditya.

(H) From and out of the amount of Rs. 1 crore deposited byPerry in this Court, at this stage, an amount of Rs. 25 lakhsbe handed over to Smriti towards legal expense incurred orGrequired to be incurred hereafter. Rest of the money shallcontinue to be kept in deposit with the Registry till furtherorders.”

8. On 25.01.2022, following the suo-moto notice for contempt ofCourt, this Court framed charges and issued notice to the contemnor.HThe matter was adjourned from time to time to give further opportunities to the contemnor. Finally, by its judgment dated 11.07.2022, this Courtconvicted the contemnor for having committed civil and criminal contemptof this Court’s orders. The relevant portion of the order is as follows:

“15. It is thus well settled that a person who makes a falsestatement before the Court and makes an attempt to deceivethe Court, interfered with the administration of justice and isguilty of contempt of Court. The extracted portion aboveclearly shows that in such circumstances, the Court not onlyhas the inherent power but it would be failing in its duty if thealleged contemnor is not dealt with in contempt jurisdictionfor abusing the process of the Court.

16. The essential features of the matter as culled out inparagraph 34 of the Order dated 07.10.2021 were relied uponto arrive at a prime facie observation that Perry was guilty ofcontempt of Court. Though notice was issued to Perry, noresponse has been tendered. We find that the material onrecord clearly shows violation on part of Perry. Theobservations made in paragraph 34 of the order dated07.10.2021 were on the basis of record. Having consideredthe entirety of the matter, in our view, Perry is guilty of havingcommitted criminal contempt of Court part from the contemptfor violating express undertakings given to the Courts,including this Court. We accordingly hold Perry guilty underthe Contempt of Courts Act, 1971.

17. Though the instant proceedings can be taken to logicalconclusion and order of sentence can be awarded even inthe absence of Perry, we give final opportunity to Perry topresent himself before this Court on 22.07.2022 at 3.00 pmalong with Aditya. He shall then have an opportunity toadvance appropriate submissions on the issue of punishmentto be awarded to him. It shall also be open to Perry to purgehimself of contempt in which case a sympathetic view may betaken in the matter.

Let copy of this Order be served upon Perry throughemail ID used by him in serving process upon Smriti.Additionally, a copy shall be given to Mr. P.K. Manohar,learned Advocate.”

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A9. It is in the above-referred background that the presentproceedings for imposition of sentence are being taken up. Theseproceedings for sentence were spread over three months. During thisperiod, the case was listed on 22.07.2022, 27.09.2022, 30.09.2022 and17.10.2022. It was finally heard on 21.10.2022 when it was decided thatsufficient opportunity had been granted to the contemnor to appear andBexplain his actions or to purge his conduct. However, he continued to bedefiant & did not enter appearance personally or through counsel.

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10. We heard Ms. Sonia Mathur, Sr. Advocate on behalf of SmritiKansagra, and also heard Ms. Aishwarya Bhati, learned ASG, who assistedthe Court as per our request on 30.09.2022. Having examined the meritCin detail, we hold that:

10.1 The contemnor had given an unequivocal undertaking to theHigh Court that he would submit to the jurisdiction of the Indian Courts.In response to a submission raised in Miscellaneous Application No.2140 of 2020, he specifically stated that he had subjected himself to theDjurisdiction of this Court. In its Order dated 08.12.2020, this Court madeit clear that the undertaking given by him to the High Court would continueto be operative in addition to the undertaking given to this Court. Thecontemnor blatantly breached the undertaking. This is a deliberatedisobedience of Courts order.

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10.2 The contemnor gave a solemn undertaking to this Court thathe would comply with the judgment dated 28.10.2020 and the orderdated 08.12.2020. However, he breached this undertaking also. It hadbecome evident that the contemnor has, in his well-calculated anddeliberate scheme of things, given assurances and undertakings to misleadFthe Courts in India, including this Court, when he had no intention tocomply or abide by any of his assurances. The following acts woulddemonstrate that they are not only willful disobedience of the judgmentof this Court but are calculated to obstruct the administration of Justiceand interfere with the due course of judicial proceedings. They had theclear effect of lowering the authority of the Court.G

10.3 The judgment dated 28.10.2020 called upon the contemnorto obtain a Mirror Order from the concerned Court in Nairobi to reflectthe directions contained in the judgment dated 28.10.2020. Followingthis, the order dated 09.11.2020 passed by the High Court of Kenya atNairobi along with the relevant application moved by the contemnor H

seeking registration of the judgment dated 28.10.2020, was filed in thisCourt. There was a dispute whether the registration granted vide orderdated 09.11.2020 by the High Court of Kenya at Nairobi amounted tofulfilling the requirement of a Mirror Order. The counsel appearing forthe contemnor relied upon the opinion given by M/s GMC Advocateswhich in turn had relied upon the decision of the High Court of Kenya atNairobi in Re: Matter of I W P (Infant) [2013] eKLR to submit that theregistration itself was a “Mirror Order” in compliance of the requirementsof the Judgment dated 28.10.2020. Through submissions advanced onbehalf of the contemnor based on the order dated 09.11.2020 passed bythe High Court of Kenya at Nairobi, this Court was persuaded to believethat registration of the judgment of this Court by the High Court of Kenyaat Nairobi was sufficient compliance of the directions to obtain a “MirrorOrder”. It now transpires that the High Court of Kenya at Nairobi by itsorder dated 21.05.2021 held that the judgment of this Court was notregistrable and dismissed the Originating Summons.

10.4 The proceedings and the order of the High Court of Kenyaat Nairobi were suppressed. The contemnor deliberately and with theclear intention to defeat the judgment and order of this Court did notbring these facts to the notice of this Court. Having submitted to thejurisdiction of the Indian Courts it was the bounden duty of the contemnorto keep this Court appraised of all the developments particularly whenthe “Mirror Order” was the fulcrum on the basis of which this Courthanded over to him the custody of Aditya. This act has clearly loweredthe authority of this Court.

10.5 This infraction gets more pronounced in the light of the standtaken in his Affidavit dated 05.08.2021 filed in this Court, where thecontemnor unequivocally stated that he had not even the remotest intentionto disobey the Order passed by this Court including the Judgment dated28.10.2020. These equivocal and contradictory acts clearly demonstratethat the contemnor was acting with a design and a clear intention todefeat the orders of this Court. He obstructed the course of Justice.

10.6 Being well aware of the procedure devised by this Court inits Order dated 11.08.2021 to facilitate the safe entry and exit of Adityainto India, the contemnor did not inform this Court about the fact that aSituational Report dated 09.08.2021 was made or that the concernedauthorities were looking into the matter in Kenya. All these acts weredone and contrary steps were taken even while the contemnor was AB

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Aassuring this Court that he had no intention to disobey the orders passedby this Court. All this demonstrates a clear intention to mislead this Court.

10.7 Despite clear directions issued in the Order dated 11.08.2021Perry had not taken any steps to comply with the Order. He failed torenew OCI and failed to have Aditya board the flight on 13.08.2021.BWeekend Skype meetings between Smriti and Aditya were not facilitatedfrom the weekend of 14.08.2021. In total and complete disregard for allorders, the contemnor blocked all means of communication with Smriti.

10.8 Though in law the learned advocates appearing on behalf ofthe contemnor would, as per our orders, continue to represent him, weChave additionally directed that notice be served on him through Indianembassy of Nairobi. Contemnor has failed to appear since 16.08.2021despite repeated directions. As a matter of fact, by the time the casewas taken up for further hearing on 16.08.2021, the contemnor soughtto withdraw the authorization in favour of the learned counsel who wereall the while representing him before this Court. By this deliberate andDwell thought out actions, contemnor obstructed the administration ofjustice.

10.9 In Petition No. E301 of 2021 and Notice of Motion beforethe High Court of Kenya at Nairobi on 26.08.2021, the contemnorsubmitted that it would be humiliating to compel Aditya to take OCIECard. He also stated that the wishes of Aditya were not ascertained bythis Court. He further pleaded that there was no valid Mirror Order andthat the orders passed by this Court were without jurisdiction. Hespecifically prayed for declaration that there existed no valid “MirrorOrder” and in the circumstances the orders passed by this Court areFincapable of compliance and/or enforcement. This is the most egregiouspart of the contumacious acts committed by the contemnor. Thestatements made by him were false, and in fact, being fully aware thatthese were false statements, he proceeded to invoke the jurisdiction ofthe Kenya High Court to hold that Judgments and Orders passed byIndian Courts were unenforceable.G

10.10 These developments show the defiant and contumaciousposture now adopted by the contemnor. There is concrete material andreason to believe that it was a well-planned conspiracy on part of Perryto persuade this Court to pass orders in his favour and allow him thecustody of Aditya and then turn around and defy the orders of this Court.H

11. Article 129 of the Constitution of India empowering this Courtto punish for contempt of self is as follows: - “129. Supreme Court to be a court of record.- The Supreme Court shall be a court of record and shall haveall the powers of such a court including the power to punishfor contempt of itself.”

12. It is now well settled that the power of the Supreme Court topunish for contempt is not confined to the procedure under the Contemptof Courts Act[2]. In Pallav Sheth v. Custodian and Others[3], this Courtheld that: - “30. There can be no doubt that both this Court and HighCourts are courts of record and the Constitution has giventhem the powers to punish for contempt. The decisions of thisCourt clearly show that this power cannot be abrogated orstultified. But if the power under Article 129 and Article 215is absolute, can there by any legislation indicating the mannerand to the extent that the power can be exercised? If there isany provision of the law which stultifies or abrogates the powerunder Article 129 and/or Article 215, there can be little doubtthat such law would not be regarded as having been validlyenacted. It, however, appears to us that providing for thequantum of punishment or what may or may not be regardedas acts of contempt or even providing for a period of limitationfor initiating proceedings for contempt cannot be taken to bea provision which abrogates or stultifies the contempt 2 “12. Punishment for contempt of court.-

(1) Save as otherwise expressly provided in this Act or in any other law, acontempt of court may be punished with simple imprisonment for a term which mayextend to six months, or with fine which may extend to two thousand rupees, or withboth:

Provided that the accused may be discharged or the punishment awarded maybe remitted on apology being made to the satisfaction of the Court.

Explanation.—An apology shall not be rejected merely on the ground that it isqualified or conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force,no court shall impose a sentence in excess of that specified in sub-section (1) for anycontempt either in respect of itself or of a court subordinate to it.”3 (2001) 7 SCC 549

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Ajurisdiction under Article 129 or Article 215 of theConstitution.”

13. The above said principle is followed in Re: Vijay Kurle andOrs.[4], where this Court reiterated the above referred principle and heldas under: - B

“38. The aforesaid finding clearly indicates that the Courtheld that any law which stultifies or abrogates the power ofthe Supreme Court under Article 129 of the Constitution orof the High Courts under Article 215 of the Constitution, couldnot be said to be validly enacted. It however, went on to holdCthat providing the quantum of punishment or a period oflimitation would not mean that the powers of the Court underArticle 129 have been stultified or abrogated. We are not goinginto the correctness or otherwise of this judgment but it isclear that this judgment only dealt with the issue whether theParliament could fix a period of limitation to initiate theDproceedings under the Act. Without commenting one way orthe other on Pallav Seth’s case (supra) it is clear that thesame has not dealt with the powers of this Court to issue suomotu notice of contempt.

39. In view of the above discussion we are clearly of the viewEthat the powers of the Supreme Court to initiate contempt arenot in any manner limited by the provisions of the Act. ThisCourt is vested with the constitutional powers to deal with thecontempt. Section 15 is not the source of the power to issuenotice for contempt. It only provides the procedure in whichFsuch contempt is to be initiated and this procedure providesthat there are three ways of initiating a contempt - (i) suomotu (ii) on the motion by the Advocate General/AttorneyGeneral/Solicitor General and (iii) on the basis of a petitionfiled by any other person with the consent in writing of theAdvocate General/Attorney General/Solicitor General. As farGas suo motu petitions are concerned, there is no requirementfor taking consent of anybody because the Court is exercisingits inherent powers to issue notice for contempt. This is notonly clear from the provisions of the Act but also clear fromthe Rules laid down by this Court.”

H4 (2020) SCC online SC 407.

14. It is within the constitutional power of this Court to considerthe contumacious acts of a contemnor and to punish him/her for thesame. It is in exercise of such a power, unrestricted by the Contempt ofCourt Act that this Court had imposed a sentence of more than six monthsand also directed in some cases that the contemnor shall undergo rigorousimprisonment[5].

15. We are of the view that the contemnor had deliberately, andwith a clear design, made it appear as if he was willing to comply withthe Judgment and direction of the Indian Courts. The repeated statementsand affidavits affirming to comply with the directions of this Court weregiven only to ensure that the custody of Aditya is given to him. We are ofthe clear opinion that the contemnor had no intention to comply with thedirections of the Court even while he gave the undertaking, filed solemnaffidavit or even instructed his lawyer to so represent on his behalf.

16. The subsequent conduct of the contemnor after taking Adityaout of India leaves no doubt in our mind that the entire proceedings wereconducted with the deliberate and mala-fide intention to mislead theSupreme Court in permitting the contemnor to shift Aditya out of India.

17. This Court in Subrata Roy Sahara v. Union of India andors.[6]while articulating the powers under Article 129 held as follows: - “19. …It is therefore that Article 142 of the Constitution ofIndia mandates that this Court “… in the exercise of its jurisdiction may pass such decree ormake such order as is necessary for doing complete justicein any cause or matter pending before it, and any decree sopassed or order so made shall be enforceable throughout theterritory of India …”.

And it is also inter alia for the above enforcement, that Article129 of the Constitution of India, vests in the Supreme Courtthe power, amongst other things, to enforce compliance withthe Court directions. The Supreme Court has the jurisdiction and power to punish for its contempt. It is this dispensation 5 Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors, (2006) 3 SCC 374;and Afzal and Anr. v. State of Haryana and Ors, (1996) 7 SCC 397.

6 (2014) 8 SCC 470.

Also see: Supreme Court Bar Association v. Union of India and anr. (1998) 4 SCC 409,para 38.

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Awhich authorises the Supreme Court to enforce compliancewith its orders. For, the power to punish would serve nopurpose if the power to enforce compliance was lacking. Itwas, therefore, that this Court in Maninderjit Singh Bitta v.Union of India [(2012) 1 SCC 273 : (2012) 1 SCC (Civ) 88 :(2012) 1 SCC (Cri) 528 : (2012) 1 SCC (L&S) 83] withBreference to its contempt jurisdiction observed, thus : (SCCpp. 282-85, paras 26-27 & 34)

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“26. It is also of some relevance to note that disobedience ofcourt orders by positive or active contribution ornon-obedience by a passive and dormant conduct leads tothe same result.

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Disobedience of orders of the court strikes at the very root ofthe rule of law on which the judicial system rests. The rule oflaw is the foundation of a democratic society. Judiciary is theguardian of the rule of law. If the judiciary is to perform itsDduties and functions effectively and remain true to the spiritwith which they are sacredly entrusted, the dignity andauthority of the courts have to be respected and protected atall costs (refer T.N. Godavarman Thirumulpad (102) v. AshokKhot [(2006) 5 SCC 1] , SCC p. 6, para 5)...

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130 The scope of the instant contempt jurisdiction extends topunishing contemnors for violating the Court’s orders;punishing contemnors for disobeying the Court’s orders;punishing contemnors for breach of undertakings given tothe Courts. It also extends to enforcement of the Court’sForders. The contempt jurisdiction even extends to punishingthose who scandalise (or lower the authority of) any court;punishing those who interfere in due course of judicialproceedings; and punishing those who obstruct theadministration of justice”

18. We have already convicted Perry Kansagra for contempt.The above referred facts are mentioned only to demonstrate that thecontemnor has deliberately and with a clear intention committed egregiousacts of contempt. These acts constitute willful disobedience of thejudgment, direction and order of this Court coupled with willfulbreach of the undertaking given by the Court which constitute civil G

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contempt. The contemnor has falsely represented before the foreignjurisdiction that Indian Courts have not sought the consent of Aditya andthat the decision of the Supreme Court of India is unenforceable. Theseacts clearly lower the authority of this Court. We have also indicatedthat the contemnor has interfered with the due course of judicialproceedings and obstructed the administration of justice which is aclear case of criminal contempt.

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19. In the circumstances and in order to mention the majesty oflaw, we must impose upon adequate punishment on the contemnor. Wehave also noted that the contemnor never showed any remorse or tenderany apology for his conduct.

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20. For the reasons stated above, we direct that the contemnor be:

a)Punished with simple imprisonment for a term of six monthsfor civil contempt of Court for his acts of deliberate andwillful disobedience of the orders passed by this Court andDto pay a fine of Rs. 12,50,000/- (Twelve Lakhs FiftyThousand), in default he shall further undergo simpleimprisonment for one month.

b)Punished with simple imprisonment for a term of six monthsfor criminal contempt of Court for obstructing theadministration of Justice and lowering the authority of thisCourt and to pay a fine of Rs. 12,50,000/- (Twelve LakhsFifty Thousand), in default he shall further undergo simpleimprisonment for one month.

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21. In view of the egregious acts of civil as well as criminalcontempt, we further direct that the sentences shall be servedconsecutively.

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22. We further direct that the total fine of Rs. 25,00,000/-(Twenty-Five Lakhs) as indicated above, to be deposited by thecontemnor in the Registry of this Court within four weeks from todayand the same shall be released to Smriti Kansagra upon an applicationfiled by her.

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23. We also direct the Ministry of Home Affairs, Government ofIndia to secure the presence of the contemnor to undergo the imprisonmentimposed upon him. Needless to say, Government of India including the H

AMinistry of External Affairs and other agencies or instrumentalities shallcarry out the directions issued by the Court with due diligence and utmostexpediency. Compliance report shall be filed in the Registry of this Courtby 09.12.2022.

24. We further direct the case to be listed for hearing for furtherBorders on 15.12.2022.

Ankit Gyan(Assisted by : Aarsh Choudhary, LCRA)

Directions issued.

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