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Smriti Madan Kansagra v. Perry Kansagra

Miscellaneous Application · 2021 INSC 632Decided 7 Oct 2021
Miscellaneous Application No. 1167 of 2021
Justice Uday Umesh Lalit · Justice Hemant Gupta · Justice Ajay Rastogi

Background

Smriti and Perry Kansagra, an estranged couple, had been locked in a long custody battle over their son Aditya. In October 2020 the Supreme Court's majority judgment (in Civil Appeal No. 3559 of 2020) had granted custody to Perry, a Kenya/UK-based NRI, partly on the strength of solemn undertakings he gave the Court to protect Aditya's and Smriti's rights. Smriti later moved this miscellaneous application alleging Perry had obtained a Kenyan passport for Aditya and taken him away to Kenya by misrepresenting facts and breaching those undertakings, effectively perpetrating a fraud on the Court.

Decision Breakdown

The Court found that Perry had indeed committed a fraud on the Court and violated his undertakings in securing and acting upon the custody order. It recalled its own judgment dated 28.10.2020 and order dated 08.12.2020, dismissed the original Guardianship Petition and all resultant proceedings (including the High Court appeal), and declared the custody granted to Perry illegal and void ab initio. It issued a show-cause notice for contempt against Perry, directed the CBI to register criminal proceedings against him and help secure Aditya's custody for Smriti, directed the Ministry of External Affairs and the Indian Embassy in Kenya to assist Smriti, and ordered partial release of court-deposited funds to her for legal expenses.

Lesson Learnt

A judgment obtained through fraud or broken undertakings to the Court, even one that appears final, can be recalled by the same court; undertakings given to a court are treated as solemn and binding, and courts retain inherent power to correct orders tainted by fraudulent conduct.

Official source (sci.gov.in)View Judgment (PDF)

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