In a transnational guardianship case, the Supreme Court has granted the custody of an 11-year-old boy to his Kenya-based father, after the child expressed desire to live with him.
The Supreme Court, in a 2:1 majority judgement by Justices U.U. Lalit and Indu Malhotra, noted that the child has exhibited a strong and deep bond with his father.
However, the court, against the backdrop of safeguarding the interest of the mother, directed the father “to obtain a mirror order from the concerned court in Nairobi, which would reflect the directions contained in this judgment”.
The bench observed that given the large number of cases arising from transnational parental abduction in intercountry marriages, the English courts have issued protective measures which take the form of undertakings, mirror orders, and safe habour orders, since there is no accepted international mechanism to achieve protective measures.
“Such orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The courts have found mirror orders to be the most effective way of achieving protective measures,” observed the top court.
A family court had, in 2018, upheld the custody of the child by father. The mother challenged this in the Delhi High Court, which in February this year affirmed the order. The mother then moved the Supreme Court.
The bench concluded that it would be in child’s best interest to transfer the custody to his father. “If his preferences are not given due regard to, it could have an adverse psychological impact on the child,” it observed.
Emphasising on the utility of mirror order, the bench said the object of a mirror order is 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 top court directed the father to deposit a sum of Rs 1 crore in the registry, after the mirror order is filed, and this sum shall be kept in an account for a period of two years to ensure compliance with the directions of this judgment. The amount shall be returned with interest accrued after the directions of the court are complied with.
Justice Hemant Gupta, in the dissenting opinion, said the question of where does the welfare of the child lie thus narrows down to the mother who has stopped pursuing her profession to nurture child as against the father who travels quite substantially every month. “In the absence of the father, the child will be in the custody of nannies, maids and servants. The grandparents would not be able to take care of the growing needs of a young child,” he said.
He concluded that the mother, in whose hands the welfare of the child is secured, is more suitable.
The couple got married in 2007 and had a child in 2009. Since 2012, they have been living separately. The mother is an Indian citizen, whereas the father holds dual citizenship of Kenya and the United Kingdom. The mother filed a suit for permanent injunction restraining the father and his parents from removing the child from her custody.
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