Holding

Perry Kansagra is guilty of both civil and criminal contempt of the Supreme Court and is sentenced to consecutive six‑month imprisonments and a fine of Rs. 25,00,000.

Summary

Perry Kansagra, a father, obtained custody of his son Aditya through a series of Indian court orders, including a Supreme Court judgment directing him to secure a "mirror order" from the Kenyan court. He subsequently failed to obtain a valid mirror order, concealed the Kenyan court's refusal to register the Indian judgment, and obstructed communication between the child and his mother, Smriti Kansagra. The Supreme Court found that these acts constituted willful disobedience of its orders and a breach of undertakings, amounting to civil contempt, and also amounted to criminal contempt for lowering the Court's authority and obstructing justice. Relying on its inherent power under Article 129 of the Constitution, the Court recalled its earlier custody orders and convicted Kansagra of both civil and criminal contempt. It imposed consecutive six‑month simple imprisonments for each contempt and levied a total fine of Rs. 25,00,000, directing payment to the mother.

Issues considered

Whether Perry Kansagra's failure to obtain a valid mirror order and his concealment of the Kenyan court's refusal constitute civil contempt of the Supreme Court.
Whether his conduct of obstructing communication and misleading the Court amounts to criminal contempt.
Whether the Supreme Court may impose a sentence exceeding the six‑month limit prescribed in the Contempt of Courts Act by exercising its inherent power under Article 129.

Legislation cited

Contempt of Courts Act, 1971s. 12, s. 15

Subjects

contempt of courtcivil contemptcriminal contemptchild custodymirror orderArticle 129Supreme Courtsentencejurisdictionundue disobedience

Judgment

[2022] 8 S.C.R. 671 671

IN RE: PERRY KANSAGRA A
(Suo-Motu Contempt Petition (Civil) No. 3 of 2021)
NOVEMBER 03, 2022
[UDAY UMESH LALIT, CJI AND
PAMIDIGHANTAM SRI NARASIMHA, J.] B
Sentence/Sentencing – Sentencing for contempt – Contemnor
(PK) married ‘S’ (Indian citizen) – Initially they had stayed in Kenya
but on returning to India their son was born – Son and ‘S’ stayed in
India – A guardianship petition was filed by the contemnor before
the District Court for declaration and legal guardianship of his C
son – Petition was allowed by the order of the Court – ‘S’ challenged
the said order before the High Court – High Court affirmed the
order of District Court – ‘S’ Challenged the decision of the High
Court before Supreme Court – The Supreme Court affirmed the
finding of the High Court and custody of son was given to contemnor
– ‘S’ filed M.A complaining of total and absolute disobedience of D
Supreme Court’s orders – The Supreme Court passed the judgment
and recalled its earlier orders and convicted the contemnor for civil
and criminal contempt of Supreme Court – The instant proceeding
is for imposition of sentence – Held: Facts of the case demonstrate
that the contemnor had deliberately and with clear intention had E
committed act of contempt – Willful disobedience of the judgment,
direction and order of Court coupled with willful breach of the
undertaking given by the Court constitute civil contempt – Further,
the act of contemnor lowers the authority of Court – The contemnor
has interfered with the due course of judicial proceedings and
obstructed the administration of justice which constitutes criminal F
contempt – Contemnor directed to be punished with simple
imprisonment for a term of six months for civil contempt of Court
for his acts of deliberate and willful disobedience of the orders
passed by Supreme Court and to pay a fine of Rs. 12,50,000/- (Twelve
Lakhs Fifty Thousand), in default he shall further undergo simple G
imprisonment for one month; b) Punished with simple imprisonment
for a term of six months for criminal contempt of Court for
obstructing the administration of Justice and lowering the authority
of Supreme Court and to pay a fine of Rs. 12,50,000/- (Twelve Lakhs
H
671
672 SUPREME COURT REPORTS [2022] 8 S.C.R.

A Fifty Thousand), in default he shall further undergo simple
imprisonment for one month – Sentences to be served consecutively
– Constitution of India – Art.129.
Pallav Sheth v. Custodian and Others (2001) 7 SCC
549 : [2001] 1 Suppl. SCR 387 ; Re: Vijay Kurle and
B Ors. (2020) SCC online SC 407; Zahira Habibullah
Sheikh and Anr. v. State of Gujarat and Ors, (2006) 3
SCC 374 : [2006] 2 SCR 1081 ; and Afzal and Anr. v.
State of Haryana and Ors, (1996) 7 SCC 397 : 1996
(1) JT 328 ; Subrata Roy Sahara v. Union of India and
C ors. (2014) 8 SCC 470 : [2014] 12 SCR 573 ; Supreme
Court Bar Association v. Union of India and anr. (1998)
4 SCC 409 : [1998] 2 SCR 795 – referred to.
Case Law Reference
[2001] 1 Suppl. SCR 387 Referred to Para 12
D
[2006] 2 SCR 1081 Referred to Para 14
[2014] 12 SCR 573 Referred to Para 17
[1998] 2 SCR 795 Referred to Para 17
E INHERENT JURISDICTION : Suo Moto Contempt Petiton
(Civil) No.3 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.
F
Tushar Mehta, SG, Ms. Aishwarya Bhati, ASG, Ms. Sonia Mathur,
Sr. Adv., Prosenjeet Banerjee, Ms. Nidhi Mohan Parashar, Ms. Mansi
Sharma, Ms. Shreya Singhal, Vikrant Kumar, Nikhil Chandra Jaiswal,
Ms. Pratiksha Mishra, Simarjeet Singh Saluja, Sudeshna Singh, Chaitanya
Raj Wadera, Ms. Akriti Anand, Ms Astha Baderiya, Ms. Divik Mathur,
G P. K. Manohar, Ms Shagun Thakur, Ms. Shivika Mehra, Ms. B.L. Shivani,
Aman Sharma, Ms. Nidhi Mohan Parashar, Rajat Nair, Kanu Agrawal,
Ms. Deepabali Datta, Navanjay Mahapatra, Arvind Kumar Sharma, Advs.
for the appearing parties.

H
IN RE: PERRY KANSAGRA 673

The Judgment of the Court was delivered by A
PAMIDIGHANTAM SRI NARASIMHA, J.
1. This decision on Sentencing will be in continuation of our
judgment dated 11.07.2022 by which Perry Kansagra (hereinafter
referred to as the ‘contemnor’) was convicted for acts of civil as well
B
as criminal contempt of this Court. For passing the consequential order
of Sentence, we adjourned the case several times1 and after being
satisfied that sufficient opportunity was given to the contemnor, we
proceeded to hear the learned Senior Counsel Ms. Sonia Mathur for
Smriti Kansagra (wife of the contemnor and mother of their son Aditya)
the Additional Solicitor General and reserved the case for orders. By C
this judgment, we will consider and pass appropriate orders of Sentence.
2. The facts necessary for the disposal of this order may briefly
be stated as under. The contemnor married Smriti, an Indian citizen, on
29.07.2007 in New Delhi. Initially, the couple stayed in Nairobi, Kenya
but Smriti returned to India in 2009, and the couple was blessed with a D
son - Aditya, on 02.12.2009 in New Delhi. Except for a brief period,
when the couple went to Kenya in 2012, Aditya always stayed with
Smriti in Delhi. We may mention here itself that this position continued
till the custody of Aditya was handed over to the contemnor for moving
him to Kenya as per the orders of this Court. The subsequent incidents
that led to the recall of the orders of this Court and the judgment of E
conviction for contempt are all part of the Court proceedings, which
unfolded as follows.
3. A Guardianship Petition No. 53 of 2012 was filed by the
contemnor before the District Court, Saket, for declaration of legal
guardianship. After the contest, the petition came to be allowed by order F
dated 12.01.2018. Smriti challenged the said order before the High Court
of Delhi. By its judgment dated 25.02.2020, the High Court affirmed the
decision of the District Court granting custody of Aditya to his father,
the contemnor. By a separate order passed on the same date, the High
Court recorded the willingness of the contemnor and his mother, holding G
an Indian passport, to ensure compliance with the order of the Family
Court granting continued access and visitation rights to Smriti. The
direction of the High Court that the contemnor shall also file an
1
After the judgment dated 11.07.2002 the case was listed on 22.07.2022, 27.09.2022,
30.09.2022, 17.10.2022 and 21.10.2022. H
674 SUPREME COURT REPORTS [2022] 8 S.C.R.

A undertaking before the Indian Embassy that he would submit to the
jurisdiction of the Indian Courts was complied with, and it is part of the
court record.
4. Smriti challenged the decision of the High Court before this
Court in Civil Appeal No. 3559 of 2020. The majority decision of this
B Court, while affirming the findings of the High Court, disposed of the
Civil Appeal on 28.10.2020 with the following observations: -
“(a) To safeguard the rights and interest of Smriti, we have
considered it necessary to direct Perry to obtain a mirror order
from the concerned court in Nairobi, which would reflect the
C directions contained in this Judgment.
(b) Given the large number of cases arising from transnational
parental abduction in inter-country marriages, the English
courts have issued protective measures which take the form
of undertakings, mirror orders, and safe harbour orders, since
D there is no accepted international mechanism to achieve
protective measures. Such orders are passed to safeguard the
interest of the child who is in transit from one jurisdiction to
another. The courts have found mirror orders to be the most
effective way of achieving protective measures.

E (c) The primary jurisdiction is exercised by the court where
the child has been ordinarily residing for a substantial period
of time, and has conducted an elaborate enquiry on the issue
of custody. The court may direct the parties to obtain a “mirror
order” from the court where the custody of the child is being
shifted. Such an order is ancillary or auxiliary in character,
F and supportive of the order passed by the court which has
exercised primary jurisdiction over the custody of the child.
In International Family Law, it is necessary that jurisdiction
is exercised by only one court at a time. It would avoid a
situation where conflicting orders may be passed by courts in
G two different jurisdictions on the same issue of custody of the
minor child. These orders are passed keeping in mind the
principle of comity of courts and public policy. The object of
a mirror order is to safeguard the interest of the minor child
in transit from one jurisdiction to another, and to ensure that
both parents are equally bound in each State.
H
IN RE: PERRY KANSAGRA 675
[PAMIDIGHANTAM SRI NARASIMHA, J.]

The mirror order is passed to ensure that the courts of the A
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.”
B
The Court, further directed as follows: -
“(a) We direct Perry Kansagra to obtain mirror order from
the concerned court in Nairobi to reflect the directions
contained in this judgement, within a period of 2 weeks from
the date of this judgment. A copy of the Order passed by the C
court in Nairobi must be filed before this Court;
(b) After the mirror order is filed before this Court, Perry
shall deposit a sum of INR 1 Crore in the Registry of this
Court, which shall be kept in an interest-bearing fixed deposit
account (on auto- renewal basis), for a period of two years
D
to ensure compliance with the directions contained in this
judgment.
If this Court is satisfied that Perry has discharged all his
obligations in terms of the aforesaid directions of this Court,
the aforesaid amount shall be returned with interest accrued,
thereon to the respondent; E
(c) Perry will apply and obtain a fresh Kenyan passport for
Aditya, Smriti will provide full co- operation, and not cause
any obstruction in this behalf;
(d) Within a week of the mirror order being filed before this
Court, Smriti shall provide the Birth Certificate and the F
Transfer Certificate from Delhi Public School, to enable Perry
to secure admission of Aditya to a School in Kenya;
(e) Smriti will be at liberty to engage with Aditya on a suitable
video-conferencing platform for one hour over the weekends;
further, Aditya is a liberty to speak to his mother as and when G
he desires to do so;
(f) Smriti would be provided with access and visitation rights
for 50% once in a year during the annual vacations of Aditya,
either in New Delhi or Kenya, wherever she likes, after due
intimation to Perry; H
676 SUPREME COURT REPORTS [2022] 8 S.C.R.

A (g) Perry will bear the cost of one trip in a year for a period
of one week to Smriti and her mother to visit Aditya in Kenya
during his vacations. The costs will cover the air fare and
expenses for stay in Kenya;
(h) Smriti will not be entitled to take Aditya out of Nairobi,
B Kenya without the consent of Perry;
(i) We direct Perry and Smriti to file Undertakings before this
Court, stating that they would abide and comply with the
directions passed by this Court without demur, within a period
of one week from the date of this judgement.
C 21. As an interim measure, we direct that till such time that
Perry is granted full custody of the child, he will be entitled
to unsupervised visitation with overnight access during
weekends when he visits India, so that the studies of Aditya
are not disturbed. Perry and his parents would be required to
deposit their passports before the Registrar of this Court
D during such period of visitation. After the visitation is over,
the passports shall be returned to them forthwith.
22. This appeal shall be listed before the Court after a period
of four weeks to ensure compliance with the aforesaid
directions, and on being satisfied that all the afore-stated
E directions are duly complied with, the custody of Aditya Vikram
Kansagra shall be handed over by his mother Smriti Kansagra
to the father Perry Kansagra.”
5. Taking note of certain specific requirements and also to ensure
smooth transition of Aditya’s custody in favour of the contemnor, yet
another order was passed on 08.12.2020 with the following directions: -
F
“A) Except for direction issued earlier in paragraph 20 of
this Order, and matters accepted by the learned counsel for
the respondent, no orders are called for in respect of any of
the directions sought for by the appellant.
B) All the directions issued in paragraph 20 of the Judgment
G
hold good, with the addition of the one issued in paragraph
20 of this Order.
C) A further affidavit shall be filed by the respondent within
three days of this Order, that he shall abide by this Order and
the additional direction issued in paragraph 20 of this Order.
H
IN RE: PERRY KANSAGRA 677
[PAMIDIGHANTAM SRI NARASIMHA, J.]

D) The respondent is not required to obtain any fresh Mirror A
Order in respect of the aforesaid additional direction, before
Aditya is taken to Kenya, and it shall be sufficient if an
appropriate application to have this Order registered, in the
same manner as the Judgment was registered, is preferred
within two weeks of Aditya reaching Kenya, and the copy of
B
such registration is thereafter filed in this Court at the earliest.
E) After filing of the further affidavit as stated above, the
respondent shall be at liberty to take Aditya to Kenya as
directed earlier in the Judgment.”
6. After the above-referred orders dated 28.10.2020 and C
08.12.2020, followed by custody of Aditya to the contemnor, what really
transpired came to light with the filing of M.A. No. 1167 of 2012 by
Smriti complaining of total and absolute disobedience of this Court’s
Orders.
7. Having considered the matter in detail, this Court, by its D
judgment dated 07.10.2021, recalled its earlier orders dated 20.08.2020
and 08.12.2020. The relevant portion of the order is as under:-
“34. The documents and the developments referred to
hereinabove show:-
(i) Perry had given an unequivocal undertaking to the High E
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 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 F
Miscellaneous Application No. 2140 of 2020 (quoted in
paragraph 16 hereinabove), it was submitted by Perry that
he had subjected himself to the 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
G
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 obtain a ‘Mirror Order’ from the concerned Court in
Nairobi to reflect the directions contained in the Judgment
H
678 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 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 filed in this Court.
(iv) There was a dispute whether the registration granted vide
B 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 Perry had relied upon the opinion given by M/
s. GMC Advocates which in turn had relied upon the decision
C 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.
Relying on the submissions so advanced on behalf of Perry
D 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
E a “Mirror Order” issued 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
F dated 28.10.2020 passed by this Court was in fact the “Mirror
Order”.
(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
G not registrable and dismissed the Originating Summons dated
30.10.2020 filed by Perry.
(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
H
IN RE: PERRY KANSAGRA 679
[PAMIDIGHANTAM SRI NARASIMHA, J.]

Nairobi on 21.5.2021. Having submitted to the jurisdiction A
of the Indian Courts it was 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 B
stand 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 the Order dated 21.05.2021 was not brought C
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.
(ix) Miscellaneous Application No. 1167 of 2021 filed by D
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. E
Being well aware of the conditions 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 F
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 G
for further 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 H
680 SUPREME COURT REPORTS [2022] 8 S.C.R.

A the 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.
B
(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.
C
(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
D of Aditya were not ascertained by this Court; that there was
no valid Mirror Order and that the orders passed by this Court
were without jurisdiction. 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
E and/or enforcement.
35. These developments not only show the defiant and
contumacious posture now adopted by Perry but prima facie
support the submissions of Smriti made in Interim Applications
referred to in paragraphs 25, 27, and 28 herein above. There
F 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.

G 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. Wherever the custody of a minor is a matter
H
IN RE: PERRY KANSAGRA 681
[PAMIDIGHANTAM SRI NARASIMHA, J.]

of dispute between the parents or the concerned parties, the A
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 obtain such custody from the
Court with fraudulent conduct and design would be a fraud
B
on the process of the Court.
39. Though, at every juncture solemn undertakings were given
by Perry to the High Court and this Court, such undertakings
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 C
Courts. Such conduct, prime facie, can certainly be said to
be contumacious calling for an action in contempt
jurisdiction. Moreover, the non- disclosure of material facts
by Perry at the relevant junctures also shows that he
approached the Indian Courts with unclean hands. D
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 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 E
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 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 F
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 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 G
decision can be taken in parens patriae jurisdiction.”
Finally, the Court directed as under: -
“42. In the premises, we pass following directions:
—
H
682 SUPREME COURT REPORTS [2022] 8 S.C.R.

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
B therefrom including MAT APP (F.C.) No. 30 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 undertakings 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 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
E its 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
F directed 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
G required to be incurred hereafter. Rest of the money shall
continue to be kept in deposit with the Registry till further
orders.”
8. On 25.01.2022, following the suo-moto notice for contempt of
Court, this Court framed charges and issued notice to the contemnor.
H The matter was adjourned from time to time to give further opportunities
IN RE: PERRY KANSAGRA 683
[PAMIDIGHANTAM SRI NARASIMHA, J.]

to the contemnor. Finally, by its judgment dated 11.07.2022, this Court A
convicted the contemnor for having committed civil and criminal contempt
of this Court’s orders. The relevant portion of the order is as follows:
“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, interfered with the administration of justice and is B
guilty of contempt of Court. The extracted portion above
clearly shows that in 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.
C
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 prime facie observation that Perry was guilty of
contempt of Court. Though 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 D
observations made in paragraph 34 of the order dated
07.10.2021 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 part from the contempt
for violating express undertakings given to the Courts, E
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 F
present himself before 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. G
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.”
H
684 SUPREME COURT REPORTS [2022] 8 S.C.R.

A 9. It is in the above-referred background that the present
proceedings for imposition of sentence are being taken up. These
proceedings for sentence were spread over three months. During this
period, the case was listed on 22.07.2022, 27.09.2022, 30.09.2022 and
17.10.2022. It was finally heard on 21.10.2022 when it was decided that
sufficient opportunity had been granted to the contemnor to appear and
B
explain his actions or to purge his conduct. However, he continued to be
defiant & did not enter appearance personally or through counsel.
10. We heard Ms. Sonia Mathur, Sr. Advocate on behalf of Smriti
Kansagra, and also heard Ms. Aishwarya Bhati, learned ASG, who assisted
the Court as per our request on 30.09.2022. Having examined the merit
C in detail, we hold that:
10.1 The contemnor had given an unequivocal undertaking to the
High Court that he would submit to the jurisdiction of the Indian Courts.
In response to a submission raised in Miscellaneous Application No.
2140 of 2020, he specifically stated that he had subjected himself to the
D jurisdiction of this Court. In its Order dated 08.12.2020, this Court made
it clear that the undertaking given by him to the High Court would continue
to be operative in addition to the undertaking given to this Court. The
contemnor blatantly breached the undertaking. This is a deliberate
disobedience of Courts order.
E 10.2 The contemnor gave a solemn undertaking to this Court that
he would comply with the judgment dated 28.10.2020 and the order
dated 08.12.2020. However, he breached this undertaking also. It had
become evident that the contemnor has, in his well-calculated and
deliberate scheme of things, given assurances and undertakings to mislead
F the Courts in India, including this Court, when he had no intention to
comply or abide by any of his assurances. The following acts would
demonstrate that they are not only willful disobedience of the judgment
of this Court but are calculated to obstruct the administration of Justice
and interfere with the due course of judicial proceedings. They had the
clear effect of lowering the authority of the Court.
G
10.3 The judgment dated 28.10.2020 called upon the contemnor
to obtain a Mirror Order from the concerned Court in Nairobi to reflect
the directions contained in the judgment dated 28.10.2020. Following
this, the order dated 09.11.2020 passed by the High Court of Kenya at
Nairobi along with the relevant application moved by the contemnor
H
IN RE: PERRY KANSAGRA 685
[PAMIDIGHANTAM SRI NARASIMHA, J.]

seeking registration of the judgment dated 28.10.2020, was filed in this A
Court. There was a dispute whether the registration granted vide order
dated 09.11.2020 by the High Court of Kenya at Nairobi amounted to
fulfilling the requirement of a Mirror Order. The counsel appearing for
the contemnor 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
B
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. Through submissions advanced on
behalf of the contemnor based on the order dated 09.11.2020 passed by
the High Court of Kenya at Nairobi, this Court was persuaded to believe
that registration of the judgment of this Court by the High Court of Kenya C
at Nairobi was sufficient compliance of the directions to obtain a “Mirror
Order”. It now transpires that the High Court of Kenya at Nairobi by its
order dated 21.05.2021 held that the judgment of this Court was not
registrable and dismissed the Originating Summons.
10.4 The proceedings and the order of the High Court of Kenya D
at Nairobi were suppressed. The contemnor deliberately and with the
clear intention to defeat the judgment and order of this Court did not
bring these facts to the notice of this Court. Having submitted to the
jurisdiction of the Indian Courts it was the bounden duty of the contemnor
to keep this Court appraised of all the developments particularly when
the “Mirror Order” was the fulcrum on the basis of which this Court E
handed over to him the custody of Aditya. This act has clearly lowered
the authority of this Court.
10.5 This infraction gets more pronounced in the light of the stand
taken in his Affidavit dated 05.08.2021 filed in this Court, where the
contemnor unequivocally stated that he had not even the remotest intention F
to disobey the Order passed by this Court including the Judgment dated
28.10.2020. These equivocal and contradictory acts clearly demonstrate
that the contemnor was acting with a design and a clear intention to
defeat the orders of this Court. He obstructed the course of Justice.
10.6 Being well aware of the procedure devised by this Court in G
its Order dated 11.08.2021 to facilitate the safe entry and exit of Aditya
into India, the contemnor did not inform this Court about the fact that a
Situational Report dated 09.08.2021 was made or that the concerned
authorities were looking into the matter in Kenya. All these acts were
done and contrary steps were taken even while the contemnor was H
686 SUPREME COURT REPORTS [2022] 8 S.C.R.

A assuring this Court that he had no intention to disobey the orders passed
by this Court. All this demonstrates a clear intention to mislead this Court.
10.7 Despite clear directions issued in the Order dated 11.08.2021
Perry had not taken any steps to comply with the Order. He failed to
renew OCI and failed to have Aditya board the flight on 13.08.2021.
B Weekend Skype meetings between Smriti and Aditya were not facilitated
from the weekend of 14.08.2021. In total and complete disregard for all
orders, the contemnor blocked all means of communication with Smriti.
10.8 Though in law the learned advocates appearing on behalf of
the contemnor would, as per our orders, continue to represent him, we
C have additionally directed that notice be served on him through Indian
embassy of Nairobi. Contemnor has failed to appear since 16.08.2021
despite repeated directions. As a matter of fact, by the time the case
was taken up for further hearing on 16.08.2021, the contemnor sought
to withdraw the authorization in favour of the learned counsel who were
all the while representing him before this Court. By this deliberate and
D well thought out actions, contemnor obstructed the administration of
justice.
10.9 In Petition No. E301 of 2021 and Notice of Motion before
the High Court of Kenya at Nairobi on 26.08.2021, the contemnor
submitted that it would be humiliating to compel Aditya to take OCI
E Card. He also stated that the wishes of Aditya were not ascertained by
this Court. He further pleaded that there was no valid Mirror Order and
that the orders passed by this Court were without jurisdiction. He
specifically prayed for declaration that there existed no valid “Mirror
Order” and in the circumstances the orders passed by this Court are
F incapable of compliance and/or enforcement. This is the most egregious
part of the contumacious acts committed by the contemnor. The
statements made by him were false, and in fact, being fully aware that
these were false statements, he proceeded to invoke the jurisdiction of
the Kenya High Court to hold that Judgments and Orders passed by
Indian Courts were unenforceable.
G
10.10 These developments show the defiant and contumacious
posture now adopted by the contemnor. There is 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.
H
IN RE: PERRY KANSAGRA 687
[PAMIDIGHANTAM SRI NARASIMHA, J.]

11. Article 129 of the Constitution of India empowering this Court A
to punish for contempt of self is as follows: -
“129. Supreme Court to be a court of record.-
The Supreme Court shall be a court of record and shall have
all the powers of such a court including the power to punish
for contempt of itself.” B

12. It is now well settled that the power of the Supreme Court to
punish for contempt is not confined to the procedure under the Contempt
of Courts Act2. In Pallav Sheth v. Custodian and Others3, this Court
held that: -
C
“30. There can be no doubt that both this Court and High
Courts are courts of record and the Constitution has given
them the powers to punish for contempt. The decisions of this
Court clearly show that this power cannot be abrogated or
stultified. But if the power under Article 129 and Article 215
is absolute, can there by any legislation indicating the manner D
and to the extent that the power can be exercised? If there is
any provision of the law which stultifies or abrogates the power
under Article 129 and/or Article 215, there can be little doubt
that such law would not be regarded as having been validly
enacted. It, however, appears to us that providing for the E
quantum of punishment or what may or may not be regarded
as acts of contempt or even providing for a period of limitation
for initiating proceedings for contempt cannot be taken to be
a provision which abrogates or stultifies the contempt

2
“12. Punishment for contempt of court.-
F
(1) Save as otherwise expressly provided in this Act or in any other law, a
contempt of court may be punished with simple imprisonment for a term which may
extend to six months, or with fine which may extend to two thousand rupees, or with
both:
Provided that the accused may be discharged or the punishment awarded may
be remitted on apology being made to the satisfaction of the Court. G
Explanation.—An apology shall not be rejected merely on the ground that it is
qualified or conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any law for the time being in force,
no court shall impose a sentence in excess of that specified in sub-section (1) for any
contempt either in respect of itself or of a court subordinate to it.”
3
(2001) 7 SCC 549
H
688 SUPREME COURT REPORTS [2022] 8 S.C.R.

A jurisdiction under Article 129 or Article 215 of the
Constitution.”
13. The above said principle is followed in Re: Vijay Kurle and
Ors.4, where this Court reiterated the above referred principle and held
as under: -
B “38. The aforesaid finding clearly indicates that the Court
held that any law which stultifies or abrogates the power of
the Supreme Court under Article 129 of the Constitution or
of the High Courts under Article 215 of the Constitution, could
not be said to be validly enacted. It however, went on to hold
C that providing the quantum of punishment or a period of
limitation would not mean that the powers of the Court under
Article 129 have been stultified or abrogated. We are not going
into the correctness or otherwise of this judgment but it is
clear that this judgment only dealt with the issue whether the
Parliament could fix a period of limitation to initiate the
D proceedings under the Act. Without commenting one way or
the other on Pallav Seth’s case (supra) it is clear that the
same has not dealt with the powers of this Court to issue suo
motu notice of contempt.
39. In view of the above discussion we are clearly of the view
E that the powers of the Supreme Court to initiate contempt are
not in any manner limited by the provisions of the Act. This
Court is vested with the constitutional powers to deal with the
contempt. Section 15 is not the source of the power to issue
notice for contempt. It only provides the procedure in which
F such contempt is to be initiated and this procedure provides
that there are three ways of initiating a contempt - (i) suo
motu (ii) on the motion by the Advocate General/Attorney
General/Solicitor General and (iii) on the basis of a petition
filed by any other person with the consent in writing of the
Advocate General/Attorney General/Solicitor General. As far
G as suo motu petitions are concerned, there is no requirement
for taking consent of anybody because the Court is exercising
its inherent powers to issue notice for contempt. This is not
only clear from the provisions of the Act but also clear from
the Rules laid down by this Court.”
H 4
(2020) SCC online SC 407.
IN RE: PERRY KANSAGRA 689
[PAMIDIGHANTAM SRI NARASIMHA, J.]

14. It is within the constitutional power of this Court to consider A
the contumacious acts of a contemnor and to punish him/her for the
same. It is in exercise of such a power, unrestricted by the Contempt of
Court Act that this Court had imposed a sentence of more than six months
and also directed in some cases that the contemnor shall undergo rigorous
imprisonment5.
B
15. We are of the view that the contemnor had deliberately, and
with a clear design, made it appear as if he was willing to comply with
the Judgment and direction of the Indian Courts. The repeated statements
and affidavits affirming to comply with the directions of this Court were
given only to ensure that the custody of Aditya is given to him. We are of
the clear opinion that the contemnor had no intention to comply with the C
directions of the Court even while he gave the undertaking, filed solemn
affidavit or even instructed his lawyer to so represent on his behalf.
16. The subsequent conduct of the contemnor after taking Aditya
out of India leaves no doubt in our mind that the entire proceedings were
conducted with the deliberate and mala-fide intention to mislead the D
Supreme Court in permitting the contemnor to shift Aditya out of India.
17. This Court in Subrata Roy Sahara v. Union of India and
6
ors. while articulating the powers under Article 129 held as follows: -
“19. …It is therefore that Article 142 of the Constitution of E
India mandates that this Court
“… in the exercise of its jurisdiction may pass such decree or
make such order as is necessary for doing complete justice
in any cause or matter pending before it, and any decree so
passed or order so made shall be enforceable throughout the F
territory of India …”.
And it is also inter alia for the above enforcement, that Article
129 of the Constitution of India, vests in the Supreme Court
the power, amongst other things, to enforce compliance with
the Court directions. The Supreme Court has the jurisdiction
G
and power to punish for its contempt. It is this dispensation
5
Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors, (2006) 3 SCC 374;
and Afzal and Anr. v. State of Haryana and Ors, (1996) 7 SCC 397.
6
(2014) 8 SCC 470.
Also see: Supreme Court Bar Association v. Union of India and anr. (1998) 4 SCC 409,
para 38. H
690 SUPREME COURT REPORTS [2022] 8 S.C.R.

A which authorises the Supreme Court to enforce compliance
with its orders. For, the power to punish would serve no
purpose if the power to enforce compliance was lacking. It
was, therefore, that this Court in Maninderjit Singh Bitta v.
Union of India [(2012) 1 SCC 273 : (2012) 1 SCC (Civ) 88 :
(2012) 1 SCC (Cri) 528 : (2012) 1 SCC (L&S) 83] with
B
reference to its contempt jurisdiction observed, thus : (SCC
pp. 282-85, paras 26-27 & 34)
“26. It is also of some relevance to note that disobedience of
court orders by positive or active contribution or
non-obedience by a passive and dormant conduct leads to
C the same result.
Disobedience of orders of the court strikes at the very root of
the rule of law on which the judicial system rests. The rule of
law is the foundation of a democratic society. Judiciary is the
guardian of the rule of law. If the judiciary is to perform its
D duties and functions effectively and remain true to the spirit
with which they are sacredly entrusted, the dignity and
authority of the courts have to be respected and protected at
all costs (refer T.N. Godavarman Thirumulpad (102) v. Ashok
Khot [(2006) 5 SCC 1] , SCC p. 6, para 5)...
E 130 The scope of the instant contempt jurisdiction extends to
punishing contemnors for violating the Court’s orders;
punishing contemnors for disobeying the Court’s orders;
punishing contemnors for breach of undertakings given to
the Courts. It also extends to enforcement of the Court’s
F orders. The contempt jurisdiction even extends to punishing
those who scandalise (or lower the authority of) any court;
punishing those who interfere in due course of judicial
proceedings; and punishing those who obstruct the
administration of justice”

G 18. We have already convicted Perry Kansagra for contempt.
The above referred facts are mentioned only to demonstrate that the
contemnor has deliberately and with a clear intention committed egregious
acts of contempt. These acts constitute willful disobedience of the
judgment, direction and order of this Court coupled with willful
breach of the undertaking given by the Court which constitute civil
H
IN RE: PERRY KANSAGRA 691
[PAMIDIGHANTAM SRI NARASIMHA, J.]

contempt. The contemnor has falsely represented before the foreign A
jurisdiction that Indian Courts have not sought the consent of Aditya and
that the decision of the Supreme Court of India is unenforceable. These
acts clearly lower the authority of this Court. We have also indicated
that the contemnor has interfered with the due course of judicial
proceedings and obstructed the administration of justice which is a
B
clear case of criminal contempt.
19. In the circumstances and in order to mention the majesty of
law, we must impose upon adequate punishment on the contemnor. We
have also noted that the contemnor never showed any remorse or tender
any apology for his conduct.
C
20. For the reasons stated above, we direct that the contemnor
be:
a) Punished with simple imprisonment for a term of six months
for civil contempt of Court for his acts of deliberate and
willful disobedience of the orders passed by this Court and D
to pay a fine of Rs. 12,50,000/- (Twelve Lakhs Fifty
Thousand), in default he shall further undergo simple
imprisonment for one month.
b) Punished with simple imprisonment for a term of six months
for criminal contempt of Court for obstructing the E
administration of Justice and lowering the authority of this
Court and to pay a fine of Rs. 12,50,000/- (Twelve Lakhs
Fifty Thousand), in default he shall further undergo simple
imprisonment for one month.
21. In view of the egregious acts of civil as well as criminal F
contempt, we further direct that the sentences shall be served
consecutively.
22. We further direct that the total fine of Rs. 25,00,000/-
(Twenty-Five Lakhs) as indicated above, to be deposited by the
contemnor in the Registry of this Court within four weeks from today
G
and the same shall be released to Smriti Kansagra upon an application
filed by her.
23. We also direct the Ministry of Home Affairs, Government of
India to secure the presence of the contemnor to undergo the imprisonment
imposed upon him. Needless to say, Government of India including the
H
692 SUPREME COURT REPORTS [2022] 8 S.C.R.

A Ministry of External Affairs and other agencies or instrumentalities shall
carry out the directions issued by the Court with due diligence and utmost
expediency. Compliance report shall be filed in the Registry of this Court
by 09.12.2022.
24. We further direct the case to be listed for hearing for further
B orders on 15.12.2022.

Ankit Gyan Directions issued.
(Assisted by : Aarsh Choudhary, LCRA)

C

D

E

F

G

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