In a judgement passed on Wednesday( October 28) the Supreme Court applied the concept of ' mirror order' in a case filed for the transnational custody of a child.
When a foreign parent gets the custody of a child and is allowed to shift the child to a foreign country by the court, it may impose a condition on a parent to get a similar order for custody from a competent court there. This is known as ' mirror order'. It is done to make the foreign court aware of the case and to ensure the protection of a child.
A 3- judge bench comprising Justice UU Lalit, Indu Malhotra and Hemant Gupta with 2:1 majority applied the concept and allowed the custody of a child to a man who resides in Kenya. Justices UU Lalit and Indu Malhotra gave an opinion in the favour of the Father, allowing him to have the permanent custody of the child and to take him to Kenya. But the father needs to obtain a ' mirror order' from the Kenyan Court.
In a description of this concept, Justice Indu Malhotra said, "The main objective of a mirror order is to ensure the protection and interest of a minor child who will be transferred from one jurisdiction to another and to make sure that both the parents are bounded by each State equally. Mirror order ensures that the courts of the country where the child will be shifting are well aware of the arrangements made in the country in which the child previously resided. This concept also ensures the interest of the parent who lost the custody, so that his/ her rights of visiting the child doesn't get violated."
This concept has its origin from the English Courts.
The Apex court gave reference to the judgement of the Delhi High Court in Dr Navtej Singh v. State of NCT of Delhi and Anr instructed the husband to obtain a mirror order of the directions given by the high court, from the Superior Court of the State of Connecticut of Norwalk, USA. The judgement was also referred by the Supreme Court in Jasmeet Kaur v. State ( NCT of Delhi) and Anr (2019).
The father has to obtain a mirror order from the competent court of Nairobi, Kenya. He also has to deposit a sum of INR 1 Crore in the Registry of the Supreme Court, which shall be kept in an interest-bearing fixed deposit account, for two years to ensure abidance to the directions of the Court.
The mother of the child can visit him on terms and conditions.
Section 17(3) of the Guardians and Wards Act was also referred by the court which says that due importance should be given to the wishes of the child if he is enough to have his favourable preference. The court indicated that the child personally interacted in the chambers when the proceedings were pending and ascertained his aspirations and wishes.
Justice Hemant Gupta gave a dissenting opinion that the child should remain with the mother in Delhi.