New Delhi, August 24 (SocialNews.XYZ) A transnational guardianship case of an 11-year-old child, where the Supreme Court granted interim custody of the child to his Kenya-based father in October last year, turns out to be a case where the father has apparently misled the court, and diplomacy also proved ineffective in enforcing the order.
The higher court, while granting custody, had asked the father to obtain a “mirror order” from a Kenyan court reflecting the terms and assurances made between the parents before it.
On Tuesday, a bench comprising Judges UU Lalit and Ajay Rastogi was informed by Solicitor General Tushar Mehta that the government attempted to contact the father through the Indian High Commission in Kenya, but he refused to respond, and the impression obtained by the Minister of Foreign Affairs is that he is deliberately avoiding. The lawyer, representing the mother, argued that the man had dual Kenyan and British nationality, and pointed out that this was an international kidnapping case.
Mehta argued that they have no treaty by which to carry out the orders of this court. He added that technically the man can take this plea that he is not served because he is a Kenyan citizen. The court noted that the situation that is emerging now is that after the father took the child to Kenya, the Kenyan court took a different point of view.
The mother’s lawyer argued that the man led the Supreme Court down the garden path saying the orders will be unwittingly followed, and urged the higher court to defer to the CBI and Interpol, because it now refuses to submit to its jurisdiction. The lawyer pointed out that the husband’s conduct violated the commitment he made in court on October 30.
The higher court, which had authorized the father to take the child, now faces an arduous task to enforce its order and bring the man back in the face of contempt.
On Tuesday, the highest court said it would first recall its order which had been made in favor of the father, and then consider other options to bring him back.
The case is expected to be rehearing on Friday.
Earlier this month, the highest court asked for help from the Center in implementing its order in a Kenyan court in the case.
Last week, the highest court was informed that on May 21, the High Court of Kenya refused to recognize the order it had made, claiming that the judgment, emanating from a higher court in one country did not not practicing reciprocity, and in connection with the guardianship of a child, is not registrable in this court.
In December of last year, the highest court was informed that on November 9 of last year, the Kenyan court had registered its judgment. In December 2020, the mother had seized the higher court declaring that a simple registration of the judgment could not be considered as a guarantee of execution. She argued that India and Kenya are not reciprocal countries, therefore the provisions of Kenya’s Foreign Judgments (Reciprocal Enforcement) Act will not apply. However, his plea was dismissed.