On SC directive, CBI registers case against Kenyan national of Indian origin

The CBI has registered a case against a Kenyan national of Indian origin, on the Supreme Court’s directions, accusing him of kidnapping his son by securing court orders for his custody on the basis of false representations and taking him to Kenya.

In October, the Supreme Court directed the CBI to initiate criminal proceedings against accused Perry Kansagra; and to secure and entrust the custody of the child to Smriti Madan Kansagra. The orders granting custody to him have been declared illegal and void ab initio .

The Ministry of External Affairs and the Indian Embassy in Nairobi have been ordered to ensure all possible assistance to the victim to secure the child’s custody.

Resident of Nairobi

Perry, Gujarati by descent, is a resident of Nairobi. His grandfather migrated to Kenya in 1935 and settled there. The family has business interests in Kenya and the United Kingdom. Perry holds dual citizenship of Kenya and the U.K. He married Smriti Madan Kansagra, an Indian national, in July 2007 in Delhi.

Ms. Kansagra returned to India in 2009 and gave birth to the child in December that year. Except for a brief period when the couple had gone to Kenya in 2012, the child stayed with her in Delhi. The legal battle between them began in 2012 when she requested the court to restrain him and his parents from taking the child away.

Perry filed guardianship petition before a court in Delhi (Saket), which was allowed. The order was challenged by Ms. Kansagra before the Delhi High Court. However, it was dismissed. The High Court directed Perry to swear an undertaking before the Indian Embassy that he would submit to the jurisdiction of the Indian courts.

Undertaking in Kenya

The accused gave the undertaking in Kenya and filed it in the High Court, whereby he also promised to comply with the visitation rights granted to Ms. Kansagra by the Saket court. The High Court order was challenged by Ms. Kansagra before the Supreme Court, which also turned her plea down in October 2020.

The Supreme Court directed Perry to obtain a “mirror order” from the court concerned in Nairobi, which would reflect the direction contained in the apex court judgment and the same was to be filed before the Supreme Court. In October last year, he filed an undertaking that he would abide by the directives.

Relying on the submissions and in deference to the order dated November 9, 2020, passed by the High Court of Kenya in Nairobi, the Supreme Court in December last observed that the registration of its judgment by the High Court of Kenya was sufficient compliance as regards the “mirror order”. Hence, the child’s custody was handed over to Parry, who took his son to Kenya the same month.

However, in its subsequent order in May this year, the High Court of Kenya observed that the Supreme Court (India) judgment was not registrable.

Although Perry, through an affidavit dated August 5, 2021, stated that he had not even the remotest intention of disobeying the Supreme Court order, he allegedly did not bring the Kenyan High Court’s May order to the Supreme Court’s notice.

Also, on August 26, he filed a petition in the Kenyan High Court seeking a declaration that there existed no valid “mirror order” and therefore, the Supreme Court orders were incapable of compliance/enforcement.

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Printable version | May 12, 2022 2:59:36 am |