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SUPREME COURT OF INDIA
D.Y. CHANDRACHUD, INDU MALHOTRA, K.M. JOSEPH, JJ.
Sri Nilanjan Bhattacharya - Appellant
Versus
The State of Karnataka And Others - Respondent
Civil Appeal No 3284 of 2020 (Arising out of SLP (C) No 7146 of 2020)
Decided on : 23-09-2020
Constitution of India – Article 32 – Habeas Corpus Petition – Custody and repatriation of child to USA – Imposition of unacceptable conditions – Where a child has been removed from their native country to India, it would be in best interests of child to return to their native country if child has not developed roots in India and no harm would be caused to child on such return – Appellant has acted promptly to secure custody of child – In such an event, Court is only required to conduct a summary inquiry to ascertain whether there is any harm if child returns to US, where he was born and has been brought up – Court is required to engage in an elaborate inquiry on merits of case only if a considerable time has passed since child has been removed and if child has developed roots in India – In either event, primary consideration of Court is to ascertain welfare of child – Appellant is ready and willing to provide financial assistance to enable second respondent to travel to New Jersey, if she is so inclined and if she does so, appellant would make arrangements for her residential accommodation and stay, close to place of residence of child – Interest and welfare of child would be subserved by affirming direction of High Court to enable appellant to take the child with him to US – Second respondent has not shown any particular inclination to retain the child with her in India – Welfare of child would best be served by his accompanying appellant to US – Child was born in US and is a citizen of US by birth – Appellant has taken responsibility for shared parenting while child was in US – Respondent left US shores for a brief sojourn but has unilaterally resolved not to return – Both appellant and respondent are qualified professionals who have been employed in US and appellant continues to be employed there – Conditions which have been imposed by High Court do not subserve interests of justice – Conditions shall accordingly stand set aside – Appeal allowed with directions. (Paras 12, 13, 15, 16, 19 and 20)
Facts of the case:
Present appeal arises from a judgment of a Division Bench of the High Court of Karnataka, on a petition for habeas corpus filed by the appellant, who is father of a three and a half year old child. The appellant is aggrieved by conditions which were imposed by the High Court while allowing him to take the child back to the United States of America. Condition (a) requires the appellant to obtain a certificate from an officer of rank of the District Health Officer of Bengaluru certifying that “this country”, that is to say, India is free of the Covid-19 pandemic and it is safe for the minor child to travel to the US. Second condition which has been imposed in judgment of the High Court, similarly requires the appellant to secure a certificate from “the concerned medical authority” in the US certifying condition in the US, particularly in the region where the appellant is residing and of its being congenial for shifting of the residence of the minor child to New Jersey.
Findings of Court:
Condition(d) which has been set out in paragraph 18 of judgment and order of the High Court is maintained and arrangement which has been made above shall abide by such final directions as may be issued by the appropriate court in matters of custody, access and visitation.
Result : Appeal allowed.
JUDGMENT :
DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted.
2. This appeal arises from a judgment of a Division Bench of the High Court of Karnataka, on a petition for habeas corpus filed by the appellant, who is the father of a three and a half year old child. The appellant is aggrieved by the conditions which were imposed by the High Court while allowing him to take the child back to the United States of America.
3. The appellant married the second respondent on 30 November 2012. The marriage was registered at Aranmula in Kerala on 25 February 2013. The appellant and the second respondent who were based in India at the time of the wedding moved to the US in April 2015. The appellant relocated to the US at the behest of his employer. Once the couple reached the US, the second respondent found employment as a management consultant in New Jersey. The parties resided for a period of three years in New Jersey after which the respondent was employed as a Software Engineer in New York. On 25 December 2016, Adhrit was born to the appellant and the second respondent. The child is a US citizen.
4. In March 2019, the second respondent planned to travel to India for a short period with the child. After reaching India, the second respondent is alleged to have informed the appellant of her plans not to return to the US and to continue to reside in India together with the child. The appellant came to Bengaluru on 28 March 2019, when he states that he made an effort to contact the second respondent. On 13 April 2019, the appellant met the second respondent to explore an amicable resolution of the issues which the couple had faced in the marriage. The appellant was given access to the child on 13, 14 and 15 April 2019. The efforts of the appellant to persuade the second respondent to return to the US have not succeeded. On 16 April 2019, the appellant filed for custody and for the return of the minor child before the Superior Court of New Jersey, Hudson County, Chancery Division-Family Part. The second respondent was served on 26 April 2019. On 21 May 2019, the Superior Court of New Jersey granted legal and temporary custody of the child to the appellant. The appellant has also filed for divorce on 6 June 2019 before the court in New Jersey.
5. On 10 July 2019, the appellant filed a petition before this Court under Article 32 of the Constitution seeking writ of a habeas corpus. The petition was withdrawn with liberty to move the appropriate forum, which resulted in the filing of a habeas corpus petition before the High Court of Karnataka on 13 August 2019. By its judgment dated 7 April 2020, the Division Bench allowed the petition and granted the request of the appellant to allow him to take the minor child with him to the US. While doing so, the High Court imposed two conditions in paragraph 18 of its judgment and order dated 7 April 2020, which form the subject matter of the present proceedings. Paragraph 18 of the judgment is extracted below:
"Under the circumstances, this writ petition is allowed holding that the minor child - Master Adhrit Bhattacharya is required to be repatriated to USA in compliance of the order of New Jersey Court. However, the repatriation shall not be made until normalcy is restored with reference to health scenario in USA in the aftermath of COVID - 19 pandemic. Therefore, we would observe as under:
(a) That the minor child shall be repatriated only after a certificate being issued by the Officer of the rank of District Health Office of Bengaluru in certifying that this Country is free of COVID - 19 pandemic and it is safe for the travel of minor child to USA;
(b) Simultaneously the petitioner herein shall also secure a certificate from the concerned Medical authority at USA in certifying that the condition in USA, particularly in the region where the petitioner is residing is congenial for shifting the residence of m
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