SC tells man to get mirror order from Kenya to get son's custody

The Supreme Court has directed a woman from Delhi to hand over custody of her 11-year-old male child to his father of Indian origin having dual citizenship of Kenya and the UK with the condition that he would obtain a 'mirror order' from Kenya to safeguard her interests, including of regular meetings with the boy.

A three-judge bench presided over by Justice U U Lalit by a majority view of 2:1 ruled that it would be in the best interest of the child if his custody is handed over to the father.

The court, however, directed the father to obtain a mirror order from the court concerned in Nairobi, which would reflect the directions contained in this judgement.

The mirror order is passed to ensure that the courts of the country where the child is being shifted are 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 is losing custody so that the rights of visitation and temporary custody are not impaired, it said.

Such orders are passed keeping in mind the principle of comity of courts and public policy, the court added.

Going through the factual matrix of the case, the bench, also comprising Justice Indu Malhotra, noted the child was the heir apparent of a vast family business established by the family of the father in Kenya and the UK and it would be necessary for him to imbibe and assimilate the culture and traditions of the country where he would live as an adult. After 11 years of exclusive custody of his mother, he was now entitled to enjoy the protection and care of his father, for his holistic growth and development, it said.

The court rejected the mother's allegations of racism, excessive drinking, marital infidelity and pendency of a criminal case of manslaughter pending against the father for dam burst tragedy in 2018 in Kenya, resulting in the death of 48 persons. It said the charges were found not correct by the family court and Delhi High Court. Further, a natural disaster can't be blown out of proportion to declare the father unfit for custody of the child.

This would, however, not imply that the mother would be kept out of the further growth, progress and company of her son. She would be provided with temporary custody of the child for 50% of his annual vacations once a year, either in New Delhi or Kenya. She will also be provided access to the boy through emails, cellphone and Skype during the weekends.

Justice Hemant Gupta disagreed with the majority view, saying in this case, since the child has grown up in India in the last 11 years, at this age, he would be exposed to physical and psychological harm if he is shifted to Kenya amongst fellow students and teachers but without any friends, he said.