New Delhi, Aug 24 (IANS): A transnational guardianship case of a 11-year child, where the Supreme Court granted interim custody of the child to his Kenya-based father in October last year, is turning out to be a matter where the father seemingly misled the court, and diplomacy also proving ineffective in the order's implementation.

The top court, while granting the custody, had asked the father to obtain a "mirror order" from a Kenyan court reflecting the conditions and assurances arrived at between the parents before it.

On Tuesday, a bench comprising Justices U.U. Lalit and Ajay Rastogi was informed by Solicitor General Tushar Mehta that the government tried to contact the father through the Indian High Commission in Kenya, but he declined to respond, and the impression got by the Foreign Secretary is that he is deliberately avoiding. Counsel, representing the mother, submitted that the man has dual Kenyan and UK citizenship, and emphasised this is a case of international kidnapping.

Mehta submitted that they don't have any treaty by which they can enforce orders of this court. He added that technically, the man can take this plea that he is not served as he is a Kenyan citizen. The bench noted that the situation now emerges is that after the father flew the child to Kenya, the Kenyan court has taken a different view.

The mother's counsel contended that man has led the apex court up the garden path by saying that the orders will be complied with without intending to, and urged the top court to rope in the CBI and the Interpol, as he now refuses to subject himself to its jurisdiction. Counsel emphasised the conduct of the husband was in breach of his undertaking given to the court on October 30.

The top court, which had allowed the father to take the child, is now facing a daunting task to enforce its order and to bring the man back to face contempt.

On Tuesday, the top court said it will first recall its order which was passed in father's favour and then will examine other options to bring him back.

The matter is likely to come up for further hearing on Friday.

Earlier this month, the top court had sought Centre's help to implement its order before a Kenyan court in the matter.

Last week, the top court was informed that on May 21, the Kenyan High Court refused to recognise the order passed by it, saying that the judgment, being from a superior court of a non-reciprocating country, and in connection with the guardianship of a child, is not registrable in this court.

In December last year, the top court was informed that on November 9 last year, the Kenyan court had registered its judgment. In December 2020, the mother had moved the top court saying that a mere registration of the judgment cannot be considered as a guarantee for enforcement. She contended that India and Kenya are not reciprocating countries, therefore provisions of Kenya's Foreign Judgments (Reciprocal Enforcement) Act will not apply. However, her plea was dismissed.