Smriti Madan Kansagra vs Perry Kansagra
2020 Latest Caselaw 1263 Del

$~SB-2
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    MAT.APP.(F.C.) 30/2018
     SMRITI MADAN KANSAGRA               ..... Appellant
                          Through      Mr. Prosenjeet Banerjee, Ms. Mansi
                                       Sharma, Ms. Shreya Singhal, Ms. Nitya
                                       Sharma and Mr. Sahil Ghai, Advocates
                  versus
      PERRY KANSAGRA                                          ..... Respondent
                  Through              Mrs. Inderjeet Swaroop and Mr. Raghav
                                       Swaroop, Advocates.
CORAM:
     HON'BLE MR. JUSTICE G.S.SISTANI
     HON'BLE MS. JUSTICE JYOTI SINGH
                 ORDER

% 25.02.2020

1. By a separate detailed judgment, the appeal has been decided today.

2. We had also listed the matter for further directions as far as the visitation rights of the appellant/mother are concerned. The matter was passed over once to enable the counsel to seek instructions from their respective parties.

3. The order dated 12.01.2018 passed by the Family Court with regard to the visitation rights of the mother is reproduced below:

"16.1 Petition is, therefore, allowed. Petitioner is declared, as guardian of minor child Aditya Vikram Kansagra. Permanent custody is also granted to the petitioner. Respondent shall transfer custody of minor child Aditya Vikram Kansagra to petitioner, at the end of current academic session i.e. 2017-2018. Petitioner shall in the meanwhile, start making efforts for securing admission of the minor to a suitable school, whether in Kenya or U.K. Respondent shall facilitate the same by making available School Leaving Certificate or any other relevant documents. The respondent, who is also a biological parent can not be deprived of her right to maintain her contact & relation with the child. Therefore, during the school vacations in summer & winters each year, the child shall remain in temporary custody of his mother.

16.2 To initiate and to facilitate the transfer of permanent custody of the minor to the petitioner, it is further directed that during school vacations/holidays longer than 5 days, before the final custody is transferred; petitioner shall be within his rights to take the child to UK or Kenya, so that minor is familiarized with the atmosphere to which he is to be eventually transferred. All visitations as previously ordered henceforth during the interregnum shall be unsupervised, with overnight stay."

4. Ms. Swaroop, learned counsel for the respondent submits that the order passed by the Family Court, with regard to the visitation rights would be honoured and in order to ensure compliance, the respondent is willing to file an undertaking of his mother who holds Indian citizenship before this court and secondly, the respondent would file an undertaking before the Indian Embassy in Kenya and produce the acknowledgement before this Court in token of his acceptance of the order and in token of his submitting to the jurisdiction of this Court and the consequences which may follow in case the order is not faithfully complied with. She submits that this exercise would be completed within a period of one week.

5. In addition to the directions regarding visitation rights of the appellant/mother, we deem it appropriate to pass the following additional directions:

(i) The respondent shall apply for a Kenyan passport for the child, if not already done, and the appellant would co-operate in filing the application;

(ii) The appellant shall be entitled to talk to the child over audio calls/ video calls for at least 10 minutes everyday at a mutually agreed time which is least disruptive to the schooling and other activities of the child;

(iii) The appellant shall be entitled to freely exchange e-mails, letters and other correspondences with the child without and hindrance by the respondent or his family;

(iv) In addition to the grant of temporary custody of the child to the mother during summer and winter vacations on the dates to be mutually agreed upon, the appellant may visit the child at Nairobi, Kenya. However, she shall not be entitled to take the child out of Nairobi, Kenya. The respondent shall bear the cost of her return air-ticket for travel from India once a year and accommodation for seven days;

(v) The appellant shall also file an undertaking before this Court once the order has attained finality that the order of the Family Court and the directions given by this Court shall be complied with. The undertaking shall also state that the period of visitation as stipulated would be strictly adhered to and she would return the child to the respondent at the stipulated time. Further, she would not abuse her visitation and contact rights to brainwash the child with negative comments about the respondent, his family or Kenya.

6. List the matter for further directions and compliance by the respondent on 05.03.2020.

7. Since the school is in session and the exams are ending on 09.03.2020, this order shall be kept in abeyance till the next date of hearing.

                                                                   G.S.SISTANI, J



                                                                 JYOTI SINGH, J

FEBRUARY 25, 2020/pst
MAT.APP.(F.C.) 30/2018                                                          3/3