IN RE: PERRY KANSAGRAversusIN RE: PERRY KANSAGRA

                        [2022] 13 S.C.R. 207                             207


                   IN RE: PERRY KANSAGRA                                 A
          Suo-Motu Contempt Petition (Civil) No. 3 of 2021
                           JULY 11, 2022
              [UDAY UMESH LALIT AND
         PAMIDIGHANTAM SRI NARASIMHA, JJ.]                               B
       Contempt of Courts Act, 1971: Contempt of Court – Tendering
of affidavits and undertaking containing false statement, if amounts
to criminal contempt – On facts, custody of child given to the father,
Kenyan citizen with Indian origin, with visitations rights given to
the mother – Father submitted to the jurisdiction of Indian courts in    C
his affidavits and undertook to honour and comply with the orders
of the Court – However, did not comply and inspite of several
summons and orders, did not appear before Court nor brought the
son to India; and also obtained orders of this Court by practising
fraud upon the Court – Therefore, the Court recalled its earlier
judgment passed in favour of the father and in suo moto exercise of      D
power, initiated proceedings in contempt jurisdiction against the
father – Held: A person who makes a false statement before the
Court and makes an attempt to deceive the Court, interferes with
the administration of justice and is guilty of contempt of Court –
Court not only has the inherent power but it would be failing in its     E
duty if the alleged contemnor is not dealt with in contempt
jurisdiction for abusing the process of the Court – Prima facie
observation that the father was guilty of having committed criminal
contempt of court apart from the contempt for violating express
undertakings given to the courts, including this Court – Thus, held
guilty under the Contempt of Courts Act.                                 F
      While further listing the matter, the Court
       HELD: 1.1 While considering whether the conduct of the
contemnor-father was fraudulent or not, this Court observed that
it would be the duty of this Court to nullify the effect and impact
                                                                         G
of the orders which were obtained after practising fraud upon the
Court. This Court, therefore, recalled the Judgment dated
28.10.2020 and the Order dated 08.12.2020. At the same time,
non-disclosure of material facts by the contemnor at the relevant
junctures were also prima facie found to be contumacious.
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                                 207
208            SUPREME COURT REPORTS                    [2022] 13 S.C.R.


A     Therefore, the instant proceedings in the contempt jurisdiction
      were initiated suo moto by this Court. [Para 12][222-C-D]
             1.2. A person who makes a false statement before the Court
      and makes an attempt to deceive the Court, interferes with the
      administration of justice and is guilty of contempt of Court. In
B     such circumstances, the Court not only has the inherent power
      but it would be failing in its duty if the alleged contemnor is not
      dealt with in contempt jurisdiction for abusing the process of the
      Court. [Para 15][224-G; 225-A]
             1.3. The essential features of the matter as culled out in
C     paragraph 34 of the Order dated 07.10.2021 were relied upon to
      arrive at a prima facie observation that the father was guilty of
      contempt of Court. Though notice was issued to the father, no
      response has been tendered. The material on record clearly shows
      violation on part of the father. The observations made in the order
      dated 7.10.2021 were on the basis of record. Having considered
D     the entirety of the matter, the father is guilty of having committed
      criminal contempt of court apart from the contempt for violating
      express undertakings given to the Courts, including this Court.
      The father is held guilty under the Contempt of Courts Act, 1971.
      [Para 16][225-B-C]
E           1.4 Though the instant proceedings can be taken to logical
      conclusion and order of sentence can be awarded even in the
      absence of the contemnor, final opportunity is given to the father
      to present himself before this Court on 22.07.2022 at 3.00 pm
      along with his son. He would then have an opportunity to advance
F     appropriate submissions on the issue of punishment to be awarded
      to him. It would also be open to the contemnor to purge himself
      of contempt in which case a sympathetic view may be taken in
      the matter. For securing the presence of the contemnor and his
      son before this Court and for effective implementation of the
      Orders issued by this Court, the Union agencies including the
G     Central Bureau of Investigation shall have and shall exercise all
      the powers, not necessarily restricted to the directions issued in
      the Order dated 07.10.2021. [Para 17, 18][225-D-F]



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                     IN RE: PERRY KANSAGRA                                     209


      In the matter of Anil Panjwani (2003) 7 SCC 375 :                        A
      [2003] 3 SCR 1179; Dhananjay Sharma v. State of
      Haryana (1995) 3 SCC 757 : [1995] 3 SCR 964;
      Chandra Shashi v. Anil Kumar Sharma (1995) 1 SCC
      421 : [1994] 5 Suppl. SCR 465; ABCD v. Union of
      India (2020) 2 SCC 52 : [2019] 15 SCR 1 - referred
                                                                               B
      to.
      Hadkinson v. Hadkinson [1952] 2 All ER 567; Regina
      v. Jones (Robert) 1972 1 WLR 887 – referred to.
                         Case Law Reference
[2003] 3 SCR 1179                   referred to            Para 11             C

[1995] 3 SCR 964                    referred to            Para 11
[1994] 5 Suppl. SCR 465             referred to            Para 11
[2019] 15 SCR 1                     referred to            Para 11
                                                                               D
       INHERENT JURISDICTION: Suo-Moto Contempt Petition
(Civil) No. 03 of 2021.
      Petition filed for willful disobedience of Court’s Order dated
07.10.2021 and 08.12.2020 in M.A. No. 2140 of 2020 in C.A. No. 3559
of 2020 passed by the Supreme Court of India.
                                                                               E
       Tushar Mehta, SG, Ms. Sonia Mathur, Sr. Adv., P. K. Mahonar,
Prosenjeet Banerjee, Ms. Nidhi Mohan Parashar, Ms. Mansi Sharma,
Ms. Shreya Singhal, Vikrant Kumar, Ms. Prerna Dhall, Ms. Khushboo
Aggarwal, Simarjeet Singh Saluja, Ms. Smriti Madan Kansagra, Rajat
Nair, Kanu Agrawal, Navanjay Mahapatra, Ms. Deepabali Dutta, Arvind
Kumar Sharma, Advs. for the appearing parties.                                 F

      The Judgment of the Court was delivered by
      UDAY UMESH LALIT, J.
       1. The facts and circumstances leading to the recall of the
Judgment dated 28.10.2020 and the Order dated 08.12.2020 and issuance          G
of notice for initiation of contempt proceedings against the alleged
contemnor Perry Kansagra (hereinafter referred to as Perry) were dealt
with in sufficient detail in paragraphs 1 to 33 of the Order dated 7.10.2021
passed by a bench of three judges of this Court in Miscellaneous
Application No.1167 of 2021 in Civil Appeal No.3559 of 2020. For
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210            SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A     avoiding repetition of the basic facts, paragraphs 1 to 33 of said Order
      dated 7.10.2021 be read as part of this Order.
            2. After discussing the relevant facts and circumstances in
      aforesaid paragraphs 1 to 33, paragraphs 34 to 36 of the Order dated
      7.10.2021 set out the essential features of the matter as under:-
B           “34. The documents and the developments referred to hereinabove
            show:-
            (i) Perry had given an unequivocal undertaking to the High Court
            that he would submit to the jurisdiction of the Indian Courts. He
            had also given a solemn undertaking to this Court that he would
C           comply with the Order dated 28.10.2020 in addition to the Judgment
            dated 28.10.2020.
            (ii) In response to a specific submission raised in Miscellaneous
            Application No.2140 of 2020 (quoted in paragraph 16 hereinabove),
            it was submitted by Perry that he had subjected himself to the
D           jurisdiction of this Court. While dealing with the rival submissions
            in the Order dated 8.12.2020, this Court made it clear that the
            undertaking given by Perry to the High Court would continue to
            be operative, in addition to the undertaking given to this Court.
            (iii) The Judgment dated 28.10.2020 had called upon Perry to
E           obtain a Mirror Order’ from the concerned Court in Nairobi to
            reflect the directions contained in the Judgment dated 28.10.2020.
            Thereafter, the Order dated 9.11.2020 passed by the High Court
            of Kenya at Nairobi along with the relevant application moved by
            Perry seeking registration of the Judgment dated 28.10.2020, was
F           filed in this Court.
            (iv) There was a dispute whether the registration granted vide
            order dated 9.11.2020 by the High Court of Kenya at Nairobi
            amounted to fulfilling the requirement of a “Mirror Order’. The
            submissions on the point were dealt with in paragraphs 8 and 9 of
            the Order dated 8. 12.2020. The learned counsel appearing for
G
            Perry had relied upon the opinion given by M/s. GMC Advocates
            which in turn had relied upon the decision of the High Court of
            Kenya at Nairobi in Re: Matter of I W P (Infant) [2013] eKLR to
            submit that the registration itself was a “Mirror Order” in
            compliance of the requirements of the Judgment dated 28.10.2020.
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              IN RE: PERRY KANSAGRA                                      211
               [UDAY UMESH LALIT, J.]

        Relying on the submissions so advanced on behalf of Perry        A
and in deference to the Order dated 9.11.2020 passed by the High
Court of Kenya at Nairobi, in paragraph 10 of the Order dated
8.12.2020, this Court observed that the registration of the Judgment
of this Court by the High Court of Kenya at Nairobi was sufficient
compliance of the directions to obtain a “Mirror Order” issued
                                                                         B
from a Competent Court in Kenya.
(v) The Judgment dated 28.10.2020 and the Order dated 8.12.2020
passed by this Court were thus premised on the submission that
the Order dated 9.11.2020 passed by the High Court of Kenya at
Nairobi while registering the Judgment dated 28.10.2020 passed
by this Court was in fact the “Mirror Order’.                            C

(vi) It now transpires that by a subsequent Order dated 21.5.2021,
the High Court of Kenya at Nairobi in Paragraph 13 of its order
observed that the judgment of this Court was not registrable and
dismissed the Originating Summons dated 30.10.2020 filed by
Perry.                                                                   D

(vii) At no stage Perry brought this development to the notice of
this Court that the Originating Summons moved by him seeking
registration of the Judgment dated 28.10.2020 passed by this Court
was dismissed by the High Court of Kenya at Nairobi on 21.5.2021.
Having submitted to the jurisdiction of the Indian Courts it was         E
the bounden duty of Perry to keep this Court appraised of all the
developments particularly when the “Mirror Order” was the
fulcrum on the basis of which this Court handed over to him the
custody of Aditya.
(viii) This infraction gets more pronounced in the light of the stand    F
taken in his Affidavit dated 5.8.2021 filed in this Court and referred
to in Paragraph 22 hereinabove. In that affidavit Perry
unequivocally stated that he had not even the remotest intention
to disobey the Order passed by this Court including the Judgment
dated 28.10.2020. Yet, something as basic and fundamental like           G
the Order dated 21.05.2021 was not brought to the notice of this
Court. Logically, Perry should have brought back Aditya to this
country so that status quo ante could be restored and appropriate
orders could thereafter be passed by this Court.

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212      SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A     (ix) Miscellaneous Application No.1167 of 2021 filed by Smriti
      had annexed e-mails exchanged between her and Perry and prayed
      that Perry be directed to comply with directions regarding vacation
      access. In response, apart from stating that he had no intentions
      to disobey the orders passed by this Court, Perry voiced concern
      about sending Aditya to India. Being well aware of the conditions
B
      in this Country, a solution was devised by this Court in its Order
      dated 11.08.2021 and certain directions to facilitate the entry of
      Aditya into and his exit from India in a safe manner were issued.
      Pertinently on 11.08.2021, the attention of this Court was not invited
      to the fact that the Situational Report dated 09.08.2021 as referred
C     to hereinabove was made or that the matter was being looked
      into by the concerned authorities in Kenya.
      (X) Despite clear directions issued in the Order dated 11.08.2021
      Perry had not taken any steps to comply with the Order. As a
      matter of fact, by the time the matter was taken up for further
D     hearing on 16.08.2021, Perry sought to withdraw the authorization
      in favour of the learned counsel who were all the while
      representing him before this Court.
      (XI) As disclosed in I.A. 100550 of 2021 week-end Skype
      meetings between Smriti and Aditya were not facilitated from the
E     week-end of 14.08.2021 and 15.08.2021. Perry also blocked all
      means of communications with Smriti. Though in law the learned
      advocates who had entered appearance on behalf of Perry would
      continue to represent him, notice was additionally directed to be
      served on Perry through Indian embassy of Nairobi.

F     (XII) In the light of the defiant attitude exhibited by Perry and his
      refusal to abide by the Orders passed by this court, ad-interim
      relief in terms of prayers (d) (e) and (f) made by Smriti in her I.A.
      No.100550 of 2021 was granted by this Court vide its order dated
      17.08.2021.

G     (XIII) Finally, Petition No.E301 of 2021 and -Notice of Motion
      were moved on behalf of Perry, filed in the High Court of Kenya
      at Nairobi on 26.08.2021. The stand taken by Perry in said Petition
      and Notice of Motion is that it would be humiliating to compel
      Aditya to take OCI Card; that wishes of Aditya were not
      ascertained by this Court; that there was no valid Mirror Order
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                    IN RE: PERRY KANSAGRA                                      213
                     [UDAY UMESH LALIT, J.]

      and that the orders passed by this Court were without jurisdiction.      A
      He has prayed for declaration that there existed no valid “Mirror
      Order” and in the circumstances the orders passed by this Court
      are incapable of compliance and/or enforcement.
      35. These developments not only show the defiant and
      contumacious posture now adopted by Perry but prima facie                B
      support the submissions of Smriti made in Interim Applications
      referred to in paragraphs 25, 27, and 28 herein above. There
      appears to be concrete material and reason to believe that it was
      a well-planned conspiracy on part of Perry to persuade this Court
      to pass orders in his favour and allow him the custody of Aditya
      and then turn around and defy the Orders of this Court.                  C

      36. It is fundamental that a party approaching the Court must
      come with clean hands, more so in child custody matters. Any
      fraudulent conduct based on which the custody of a minor is
      obtained under the orders of the Court, would negate and nullify
      the element of trust reposed by the Court in the concerned person.       D
      Wherever the custody of a minor is a matter of dispute between
      the parents or the concerned parties, the primary custody of the
      minor, in parens patriae jurisdiction, is with the Court which may
      then hand over the custody to the person who in the eyes of the
      Court, would be the most suitable person. Any action initiated to        E
      obtain such custody from the Court with fraudulent conduct and
      design would be a fraud on the process of the Court.”
       3. Thereafter, the relevant decisions on the point as well as the
submissions of the learned Solicitor General, Mr. Amarjit Singh Chandhiok
and Ms. Sonia Mathur, learned Senior Advocates appearing for Smriti            F
Madan Kansagra (hereinafter referred to as Smriti) and Mr. Anunaya
Mehta, learned Advocate were recorded in the Order dated 7.10.2021
and it was concluded: -
      “39. Though, at every juncture solemn undertakings were given
      by Perry to the High Court and this Court, such undertakings             G
      were not only flagrantly violated but a stand is now taken
      challenging the very jurisdiction of the Indian Courts, despite having
      submitted himself to the jurisdiction of the Indian Courts. Such
      conduct, prime facie, can certainly be said to be contumacious
      calling for an action in contempt jurisdiction. Moreover, the non-
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214            SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A           disclosure of material facts by Perry at the relevant junctures
            also shows that he approached the Indian Courts with unclean
            hands.
            40. It was only on the basis of the solemn undertakings given by
            Perry and the order dated 09.11.2020 passed by the High Court
B           of Kenya at Nairobi which was projected to be a “Mirror Order”
            in compliance of the directions issued by this Court, that the custody
            of Aditya was directed to be handed over to Perry. Since the
            false and fraudulent representations made by Perry were the
            foundation, on the basis of which this Court was persuaded to
            handover custody of Aditya to him, it shall be the duty of this
C           Court to nullify, in every way, the effect and impact of the orders
            which were obtained by playing fraud upon the Court. All the
            decisions referred to hereinabove point in that direction. This Court
            would therefore be well within its power and justified to recall all
            the orders and continue to assume jurisdiction to ensure that the
D           situation as it prevailed prior to the passing of the orders by the
            Trial Court, the High Court and this Court, gets restored, whereafter
            appropriate decision can be taken in parens patriae jurisdiction.
            41. It is true that Aditya is now in Kenya. But he was taken to
            Kenya only on the basis of fraudulently obtained orders from this
E           Court. In our considered view, the Indian Courts which were the
            Courts of first contact and had complete jurisdiction over Aditya,
            must continue to exercise such power and jurisdiction to correct
            the wrongs which occurred as a result of fraudulent conduct on
            part of Perry. It may be stated here that at every juncture, welfare
            of Aditya was and will always continue to be the primary
F           consideration for the Indian Courts. He was interviewed by very
            competent and qualified Counsellors whose reports and
            assessments have been part of the record. Aditya was also
            interviewed by the Trial Court, the High Court and this Court. At
            no stage any mistreatment by Smriti was even remotely suggested
G           or adverted to by Aditya. After Aditya is brought back to this
            country, this Court will certainly have appropriate interactions with
            Aditya to understand his Wishes while considering his welfare.”
            4. In light of the facts and circumstances, following directions
      were thereafter issued by this Court in said Order dated 7.10.2021: -
H
                    IN RE: PERRY KANSAGRA                                       215
                     [UDAY UMESH LALIT, J.]

      “42. In the premises, we pass following directions:                       A
      (A) The Judgment dated 28.10.2020 and the Order dated
      08.12.2020 Passed by this Court are recalled.
      (B) The Guardianship Petition No.53 of 2012 filed by Perry in the
      District Court, Saket, New Delhi seeking permanent custody of
      Aditya and the resultant proceedings arising therefrom including          B
      MAT APP (F.C) No.3Q of 2018 filed in the High Court, are
      dismissed.
      (C) the Orders granting custody having been recalled, the custody
      of Aditya with Perry is declared to be illegal and ab initio void.
                                                                                C
      (D) Issue notice to Perry as to why proceedings in contempt
      jurisdiction be not initiated against him for having violated the
      solemn undertaking given to this Court, returnable on 16th
      November, 2021. The Registry is directed to register Suo Motu
      Contempt Case and proceed accordingly.
                                                                                D
      (E) The notice shall additionally be served through e-mail directed
      at r the e-mail id used by Perry in communicating with Smriti. The
      details in that behalf shall be furnished to the Registry by Smriti
      within two days.
      (F) The Central Bureau of Investigation, New Delhi through its
                                                                                E
      Director is directed to initiate appropriate proceedings by registering
      criminal proceedings against Perry and to secure and entrust the
      custody of Aditya to Smriti.
      (G) The Secretary, Ministry of External Affairs, Government of
      India, New Delhi and the Indian Embassy in Kenya are directed
                                                                                F
      to ensure that all possible assistance and logistical support is
      extended to Smriti in securing the custody of Aditya.
      (H) From and out of the amount of Rs.1 crore deposited by Perry
      in this Court, at this stage, an amount of Rs.25 lakhs be handed
      over to Smriti towards legal expense incurred or required to be
      incurred hereafter. Rest of the money shall continue to be kept in        G
      deposit with the Registry till further orders.”
     5. Pursuant to direction (D) as stated above, the instant Suo-moto
Contempt Petition stands registered against Perry.

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216            SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A            6. In its Order dated 25.1.2022, while dealing with the instant
      petition, this Court observed:
            “Accordingly, the matter is listed before us today to consider
            whether charges need to be framed or not. It must a stated here
            that Mr. Perry Kansagra has chosen not to file any response in
B           the matter.
            Having considered the entirety of the matter, in our view, case is
            definitely made out to proceed against Mr. Perry Kansagra in
            contempt jurisdiction: -
            i) For having willfully violated the directions issued by this Court,
C           and;
            ii) for having acted in breach of solemn undertakings given to the
            courts including this Court, and;
            iii) for having obstructed the course of justice and committed
D           criminal contempt of Court.
                  The Registry is, therefore, directed to issue notice to Mr.
            Perry Kansagra in terms of Rules to Regulate Proceeding for
            Contempt of the Supreme Court, 1975 in Form I appended to said
            Rules. The Registry is further directed to quote the relevant
            portions of Paragraphs 38 to 40 of the order dated 7th October,
E
            2021 as well as the prima facie observations as stated above,
            warranting initiation. of proceedings in Contempt.
                  Let notice be made returnable on 8 March, 2022. Mr..Perry
            Kansagra is directed to remain personally present on the next
            date of hearing.
F
                   In addition to the regular mode of service, the notice shall
            be served in the same manner as was done on the earlier occasion
            and the office of the learned Solicitor General is requested to take
            appropriate steps in the matter.
G                  Mr. Perry Kansagra is at liberty to file response to the
            proceedings on or before 22™ February, 2022, with advance copy
            to the other side.”
            7. Since despite being served, Perry had not appeared, following
      order was passed by this Court on 8.3.2022:
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                    IN RE: PERRY KANSAGRA                                    217
                     [UDAY UMESH LALIT, J.]

            “While directing initiation of contempt proceedings and          A
      issuance of notice in Form-I appended to the Rules to Regulate
      Proceedings for Contempt of the Supreme Court, 1975, vide order
      dated 25.01.2022, notice was directed to be issued to Mr. Perry
      Kansagra.
            According to the office report, notice has been issued           B
      through Ministry of Law & Justice by Speed Post on 03.02.2022
      as well as “through e-mail as was done on the earlier occasion”.
      However, the office report states that status of delivery has not
      been received from the Ministry of Law & Justice so far.
            Though the office report indicates that notice was issued        C
      through e-mail “as was done on earlier occasion”, for removal of
      doubts, the Registry is directed to send notice to be served upon
      Mr. Perry Kansagra through e-mail ID from which communications
      were received on behalf of Mr. Perry Kansagra.
             Ms. Sonia Mathur, learned Senior Advocate appearing for         D
      the applicant Ms. Smriti Madan Kansagra, submits that it has
      been four months but Ms. Smriti Madan Kansagra is unaware
      about the status of proceedings initiated by the Central Bureau of
      Investigation.
             We, therefore, call upon the Central Bureau of Investigation    E
      to file the Status Report before the next date of hearing. Let an
      appropriate intimation be sent by the Registry to the Central Bureau
      of Investigation.”
       8. Accordingly, status report was filed by the Central Bureau of
Investigation and the matter was taken up on 11.4.2022 when the following    F
order was passed by this Court:
            “Status report has been submitted by the CBI which indicates
      that Look Out Circular has already been issued by the CBI. A
      copy of the report be given to Ms. Smriti Madan Kansagra.
            IA No.53272 of 2022 has been filed by her seeking                G
      permission to place on record certain additional documents. Having
      considered the application, in our view, said documents must be
      made a part of the record.
           Reliance is placed by her on the order dated 9.3.2022 passed
      in SLP (Crl.) No.2018 of 2020, in terms of which in similar            H
218            SUPREME COURT REPORTS                           [2022] 13 S.C.R.


A           circumstances, direction was issued commanding CBI to issue
            Red Corner Notice to secure the presence of the first respondent
            who was a foreign national.
                   Ms. Sonia Mathur, learned Senior Advocate prays for similar
            direction in the instant matter.
B                  Paragraph 5 of said order dated 09.03.2022 discloses that
            there was failure on part of the first respondent-husband to abide
            by the terms and conditions imposed by the High Court. The
            observations were made by this Court that such conduct may
            invite action in contempt jurisdiction. In so far as the instant matter
C           i, concerned, this Court has already issued notice while exercising
            contempt jurisdiction.
                    The CBI is therefore, directed to issue Red Corner Notice
            to secure the Presence of Perry Kansagra. Since the minor child
            was secreted away as a part of design referred to and dealt with
D           in the earlier orders, we also direct the CBI to issue Yellow Corner
            Notice to secure the presence of the child.
                   As the earlier orders indicate, we have initiated proceedings
            in contempt petition and have already given sufficient time to Mr.
            Perry Kansagra to respond to those notices and yet no response
E           has been filed.
                  We, therefore, direct the contempt petition to be listed on
            21.04.2022 at 03:00 pm for final disposal.”
            9. We heard Ms. Sonia Mathur, learned Senior Advocate for Smriti
      and Mr. Rajat Nair for Central Bureau of Investigation. Mr. P. K.
F     Manohar, learned Advocate for Perry, however declined to advance
      any submissions.
             10. Ms. Mathur, learned Senior Advocate highlighted the acts of
      contempt by Perry under two segments namely those prior to July, 2021
      and some which were after July, 2021. The acts of contempt as described
G     in the Notes of Arguments submitted on behalf of Smriti were:-
            “3. In the respectful submission of Smriti, the following are the
            acts of contempt by Perry prior to July 2021:
               i. The following are the affidavits/undertakings given by Perry,
               which have been wilfully breached by him:
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              IN RE: PERRY KANSAGRA                                      219
               [UDAY UMESH LALIT, J.]

   a. Undertaking/affidavit dated 02.08.2020 given to the Delhi          A
      High Court wherein he undertook to “honour and comply
      with the visitation rights given to Smriti” as well as undertook
      to “submit to the jurisdiction of the Indian Courts”.
   b. Undertaking/affidavit dated 30.10.2020 filed by Perry before
      this Hon’ble Court pursuant to the judgment dated                  B
      28.10.2020 that he would comply with the majority decision
      dated 28.10.2020 without any demur and in letter and spirit.
   c. Affidavit dated 20.11.2020 filed by Perry which
      accompanied the “mirror order” wherein Perry stated that
      the purported order dated 09.11.2020 passed by the Kenyan          C
      High Court was a “mirror order”.
   d. Perry Kansagra filed and continued to rely on the purported
      mirror order dated 09.11.2020 in his reply to M.A. No. 2140/
      2020, Copy of affidavit of compliance dated 20.11.2020 filed
      by Perry and Copy of Affidavit dated 26.11.2020 in support         D
      of the documents filed by him.
   e. Affidavit dated 09.12.2020 filed by Perry in compliance of
      the order dated 08.12.2020 passed by this Hon’ble Court
      wherein he state that he “shall truly and faithfully abide by
      the order dated 08.12.2020”.                                       E
   f. The order dated 08.12.2020 accepted the undertaking of
      Perry Kansagra submitting to the jurisdiction of this Hon’ble
      Court.
ii. Removing Aditya from the Indian jurisdiction on 10.12.2020
    based on the aforementioned false undertakings/affidavits and        F
    legally untenable purported “mirror order”.
iii. Perry’s deliberate failure to comply with the directions to
     another “mirror order” as directed in paragraph 21 (D) of order
     dated 08.12.2020.
iv. As is evident from the aforementioned deliberate and wilful          G
    conduct Petty, it is most respectfully submitted that Perry
    kidnapped the child from Indian jurisdiction and removed the
    child from parens patriae of the Court. Perry has abused the
    process of this Hon’ble Court.
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220               SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A            4. The following are the acts of contempt committed by Perry
      post July, 2021.
            i.    Refusal to bring Aditya to India for Smriti to avail her visitations
                  in terms of the judgment dated 28.10.2020 and order dated
                  08.12.2020.
B           ii.   Having the purported “mirror order” dated 09.11.2020 set
                  aside by Kenyan High Court by order dated 21.05.2021.
            iii. Supressing the order dated 21.05.2021 passed by the Kenyan
                 High Court – Not filing the said order before this Hon’ble
                 Court either voluntarily when the said order was passed or
C                with his reply dated 05.08.2021 to MA No.1167/2021 or with
                 his reply dated 05.08.2021 to MA No.1167/2021 or with
                 application dated 09.08.2021 to place additional documents
                 or with documents filed on 11.08.2021.
            iv. Refusal by Perry Kansagra to get the child to India to be
D               interviewed by this Hon’ble Court in terms of the order dated
                08.12.2020.
            v.    In Perry’s reply and affidavit dated 05.08.2021 to MA No.
                  1167/2020, Perry stated that he is complying with the directions
                  of this Hon’ble Court passed on 28.10.2020 and 08.12.2020.
E
            vi. Deliberate breach of the order dated 11.08.2021, i.e. not
                sending Aditya to India on 13.08.2021 and not applying for
                Aditya’s OCI card at the Indian High Commission at Nairobi,
                Kenya.
            vii. Discharging his counsels at a crucial stage on 15.08.2021 i.e.
F
                 when this Hon’ble Court had listed the matter for compliance
                 the orders dated 11.08.2021, 08.12.2020 and 28.10.2020, and
                 sought the assistance of Perry’s counsels in this regard.
            viii. Deliberately snapping off all ties between Aditya and Smriti,
                  not only by not sending Aditya to India on 13.08.2021, but
G                 also stopping all Skype access from 15.08.2021, thereby
                  deliberately and wilfully breaching the orders dated 28.10.2020
                  and 08.12.2020.
            ix. Initiating proceedings before the Kenyan High Court in
                violation of his aforementioned undertakings/affidavits and
H
                        IN RE: PERRY KANSAGRA                                 221
                         [UDAY UMESH LALIT, J.]

            the order dated 17.08.2021 where a world-wide ad interim          A
            ex-parte anti suit injunction order was passed by against Perry
            from proceeding qua the custody/guardianship of Aditya. The
            tone and tenor of the Perry’s petition, affidavit and notice of
            motion are contumacious, scandalous and made in an overt
            attempt to lower the majesty of this Hon’ble Court.
                                                                              B
       x.   Obtaining an order dated 30.08.2021 from the Kenyan High
            Court restraining Smriti from taking Aditya out of Kenya or
            his custody, in violation of the orders dated 11.08.2021 and
            17.08.2021. Perry has deliberately sought to remove this
            Hon’ble Court as the parens patriae of Aditya.
                                                                              C
       xi. Perry continued and deliberate refusal to appear before this
           Hon’ble Court from 15.08.2020 (after he discharged his
           advocates) and blocked Smriti on all usual forms of
           communication (email and WhatsApp).
       xii. Perry’s refusing to accept the repeated attempts of the service   D
            of the process of this Hon’ble Court in the contempt
            proceedings. [elaborated in point no.6]
       xiii. Perry’s continued refusal to appear before this Hon’ble Court
             in person despite the order dated 18.10.2021, 01.02.2022 and
             16.03.2022 passed in SMC No.3 of 2021.”                          E
       11. Our attention was also invited to the decisions in a) Hadkinson
vs. Hadkinson1, where the court held that the removal of a child by a
custodial parent in violation of the orders passed by the court, was
contempt of the grossest kind; and that the contemnor would not have
any right to be heard until the child was brought back to the jurisdiction    F
of the court; b) Regina vs. Jones (Robert)2, where the Court of Appeal
held that the applicant had waived his right to be present at the trial by
his conduct in absconding and in such circumstances, the judge had a
discretion to allow the trial to proceed in the absence of the applicant;
and c) of this Court in the matter of Anil Panjwani3. It was thus
submitted that unless and until Aditya was brought back to the jurisdiction   G
of this Court, Perry would not be entitled to be heard in the matter and

1
  [1952] 2 All ER 567
2
  1972 1 WLR 887
3
  (2003) 7 SCC 375                                                            H
222             SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A     that the instant contempt proceedings could as well be taken to logical
      conclusion in his absence.
              It was further submitted that the conduct of Perry in tendering
      affidavits and undertakings containing false statements was not only
      fraudulent but also amounted to perjury and criminal contempt. The
B     decisions of this Court in Dhananjay Sharma v. State of Haryana4,
      Chandra Shashi v. Anil Kumar Sharma5 and in ABCD v. Union of
      India6 were relied upon in support of the contention.
             12. While considering whether the conduct of Perry was fraudulent
      or not, this Court had considered various decisions in paragraph 37 of its
C     Order dated 7.10.2021 whereafter it was observed that it would be the
      duty of this Court to nullify the effect and impact of the orders which
      were obtained after practising fraud upon the Court. This Court, therefore,
      recalled the Judgment dated 28.10.2020 and the Order dated 08.12.2020.
      At the same time, non-disclosure of material facts by Perry at the relevant
      junctures were also prima facie found to be contumacious. Therefore,
D     the instant proceedings in the contempt jurisdiction were initiated suo
      moto by this Court.
             13. The first set of decisions relied upon by Ms. Mathur deal with
      the rights of a contemnor or a violator to be heard until such contemnor
      or violator purges the contempt. Though Ms. Mathur was quite right in
E     her submission, we had adjourned the matter suitably on few occasions
      so that adequate opportunity could be availed of by Perry and submissions
      on his behalf could be advanced. Even at the final hearing stage, we had
      invited Mr. P. K. Manohar, learned Advocate for Perry to advance his
      submissions which offer, however, was not availed of.
F            14. The second set of decisions relied upon by Ms. Mathur are on
      the point whether tendering of affidavits and undertakings containing
      false statement would amount to criminal contempt or not. At this stage,
      we may extract following paragraphs from the decision of this Court in
      ABCD v. Union of India6 which had considered some of the previous
G     decisions of this Court on the point:
                   15. Making a false statement on oath is an offence
             punishable under Section 181 of the IPC while furnishing false
      4
        (1995) 3 SCC 757
      5
        (1995) 1 SCC 421
      6
H       (2020) 2 SCC 52
              IN RE: PERRY KANSAGRA                                      223
               [UDAY UMESH LALIT, J.]

information with intent to cause public servant to use his lawful        A
power to the injury of another person is punishable under Section
182 IPC. These offences by virtue of Section 195(1)(a)(i) of the
Code can be taken cognizance of by any court only upon a proper
complaint in writing as stated in said section. In respect of matters
coming under Section 195(1)(b)(i) of the Code, in Pushpadevi
                                                                         B
M. Jatia v. M.L. Wadhawan [Pushpadevi M. Jatia v. M.L.
Wadhawan, (1987) 3 SCC 367 : 1987 SCC (Cri) 526] prosecution
was directed to be launched after prima facie satisfaction was
recorded by this Court.
       16. It has also been laid down by this Court in Chandra
Shashi v. Anil Kumar Verma [Chandra Shashi v. Anil Kumar                 C
Verma, (1995) 1 SCC 421 : 1995 SCC (Cri) 239] that a person
who makes an attempt to deceive the court, interferes with the
administration of justice and can be held guilty of contempt of
court. In that case a husband who had filed a fabricated document
to oppose the prayer of his wife seeking transfer of matrimonial         D
proceedings was found guilty of contempt of court and sentenced
to two weeks’ imprisonment. It was observed as under: (SCC pp.
423-24 & 427, paras 1-2 & 14)
        “1. The stream of administration of justice has to remain
unpolluted so that purity of court’s atmosphere may give vitality        E
to all the organs of the State. Polluters of judicial firmament are,
therefore, required to be well taken care of to maintain the sublimity
of court’s environment; so also to enable it to administer justice
fairly and to the satisfaction of all concerned.
       2. Anyone who takes recourse to fraud, deflects the course        F
of judicial proceedings; or if anything is done with oblique motive,
the same interferes with the administration of justice. Such persons
are required to be properly dealt with, not only to punish them for
the wrong done, but also to deter others from indulging in similar
acts which shake the faith of people in the system of administration
of justice.                                                              G
                             ***
        14. The legal position thus is that if the publication be with
intent to deceive the court or one made with an intention to defraud,
the same would be contempt, as it would interfere with
                                                                         H
224             SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A           administration of justice. It would, in any case, tend to interfere
            with the same. This would definitely be so if a fabricated document
            is filed with the aforesaid mens rea. In the case at hand the
            fabricated document was apparently to deceive the court; the
            intention to defraud is writ large. Anil Kumar is, therefore, guilty
            of contempt.”
B
                 17. In K.D. Sharma v. SAIL [K.D. Sharma v. SAIL, (2008)
            12 SCC 481] it was observed: (SCC p. 493, para 39)
                   “39. If the primary object as highlighted in Kensington
            Income Tax Commrs. [R. v. General Commissioners for
C           Purposes of Income Tax Acts For District of Kensington, ex p
            Princess Edmond De Polignac, (1917) 1 KB 486 : 86 LJKB 257
            : 116 LT 136 (CA)] is kept in mind, an applicant who does not
            come with candid facts and “clean breast” cannot hold a writ of
            the court with “soiled hands”. Suppression or concealment of
            material facts is not an advocacy. It is a jugglery, manipulation,
D           manoeuvring or misrepresentation, which has no place in equitable
            and prerogative jurisdiction. If the applicant does not disclose all
            the material facts fairly and truly but states them in a distorted
            manner and misleads the court, the court has inherent power in
            order to protect itself and to prevent an abuse of its process to
E           discharge the rule nisi and refuse to proceed further with the
            examination of the case on merits. If the court does not reject the
            petition on that ground, the court would be failing in its duty. In
            fact, such an applicant requires to be dealt with for contempt of
            court for abusing the process of the court.”

F           18. In Dhananjay Sharma v. State of Haryana [Dhananjay
            Sharma v. State of Haryana, (1995) 3 SCC 757 : 1995 SCC (Cri)
            608] filing of a false affidavit was the basis for initiation of action
            in contempt jurisdiction and the persons concerned were
            punished.”

G            Thereafter, in suo moto exercise of power, proceedings in contempt
      jurisdiction were initiated against said petitioner.
             15. It is thus well settled that a person who makes a false statement
      before the Court and makes an attempt to deceive the Court, interferes
      with the administration of justice and is guilty of contempt of Court. The
      extracted portion above clearly shows that in such circumstances, the
H
                     IN RE: PERRY KANSAGRA                                     225
                      [UDAY UMESH LALIT, J.]

Court not only has the inherent power but it would be failing in its duty if   A
the alleged contemnor is not dealt with in contempt jurisdiction for abusing
the process of the Court.
       16. The essential features of the matter as culled out in paragraph
34 of the Order dated 07.10.2021 were relied upon to arrive at a prima
facie observation that Perry was guilty of contempt of Court. Though           B
notice was issued to Perry, no response has been tendered. We find that
the material on record clearly shows violation on part of Perry. The
observations made in paragraph 34 of the order dated 7.10.2021 were
on the basis of record. Having considered the entirety of the matter, in
our view, Perry is guilty of having committed criminal contempt of Court
apart from the contempt for violating express undertakings given to the        C
Courts, including this Court. We accordingly hold Perry guilty under the
Contempt of Courts Act, 1971.
      17. Though the instant proceedings can be taken to logical
conclusion and order of sentence can be awarded even in the absence
of Perry, we give final opportunity to Perry to present himself before         D
this Court on 22.07.2022 at 3.00 pm along with Aditya. He shall then
have an opportunity to advance appropriate submissions on the issue of
punishment to be awarded to him. It shall also be open to Perry to purge
himself of contempt in which case a sympathetic view may be taken in
the matter.                                                                    E
      Let copy of this Order be served upon Perry through email ID
used by him in serving process upon Smriti. Additionally, a copy shall be
given to Mr. P.K. Manohar, learned Advocate.
      18. For securing the presence of Perry and Aditya before this
Court and for effective implementation of the Orders issued by this Court,     F
the Union agencies including the Central Bureau of Investigation shall
have and shall exercise all the powers, not necessarily restricted to the
following directions issued in the Order dated 07.10.2021:
             “The Central Bureau of Investigation, New Delhi through
      its Director is directed to initiate appropriate proceedings by          G
      registering criminal proceedings against Perry and to secure and
      entrust the custody of Aditya to Smriti.
             The Secretary, Ministry of External Affairs, Government
      of India, New Delhi and the Indian Embassy in Kenya are directed
                                                                               H
226             SUPREME COURT REPORTS                        [2022] 13 S.C.R.


A            to ensure that all possible assistance and logistical support is
             extended to Smriti in securing the custody of Aditya.”
            It must be stated here that the learned Solicitor General had
      assured this Court during the hearings at the interim stages that every
      possible help and assistance shall be extended by the Union agencies
B     and the Indian Embassy in Kenya in securing the presence of Perry and
      Aditya before this Court.
             19. List the matter on 22.07.2022 at 3.00 pm.

      Nidhi Jain                                             Matter further listed.
C     (Assisted by : Tamana, LCRA)




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