Case: Sri Nilanjan Bhattacharya Vs. The State of Karnataka and Others

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 The petition was withdrawn with liberty to move the appropriate forum, which resulted in the filing of a habeas corpus petition before the High Court of Karnataka on 13 August 2019.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 minor child – Master Adhrit Bhattacharya in compliance of the order passed by the Court of New Jersey;(c) On production of such documents, the authorities concerned are directed to permit repatriation of the minor child - Master Adhrit Bhattacharya from Bengaluru, India to USA;(d) While doing so, it is also observed that in the event if the respondent - wife is reconsidering her decision in relocating herself to USA and settle there in the interest of the minor child, all liberties are reserved to her to take the child along with her subject to securing the certificate as referred to supra and on reaching USA to approach the competent court which has passed the interim order of custody of minor child to the petitioner and also for modification of the same by explaining the circumstances under which she is staking her claim for the custody of the child;6. The appellant has challenged the correctness of conditions (a) and (b) contained in paragraph 18 of the judgment of the High Court.7. This Court issued notice on the Special Leave Petition on 4 June 2020. Thereafter, finding that the second respondent had not been served, on 8 July 2020, fresh service was directed through email. This Court reiterated the direction for service on 20 July 2020, when a direction was also issued for grant of video conferencing access to the appellant on every alternate day. Since the second respondent had not entered appearance, an order was passed on 28 August 2020, by which Ms. Vibha Datta Makhija, learned Senior Counsel was appointed as amicus curiae. The order of this Court dated 28 August 2020 is extracted below:1 The High Court, by its order dated 7 April 2020, allowed the habeas corpus petition filed by the petitioner who is the father of a three and a half year old minor child and has permitted the child to be taken to New Jersey, US where the petitioner ordinarily resides. The child is a US citizen.2 Though notice has been issued by this Court on two occasions, the second respondent has not appeared. The Special Leave Petition is directed against the conditions (a) and (b) which have been imposed by the High Court in its impugned order. While the Court is conscious of the fact that the Special Leave Petition merely challenges the conditions subject to which the habeas corpus petition has been allowed, the welfare of a minor child of less than five years of age is involved in the present case. Having regard to the nature of the jurisdiction of this Court, we are of the view that the ends of justice would be served if an amicus curiae is appointed to assist the Court since the second respondent has not entered appearance through counsel. The office report dated 25 August 2020 indicates that service has been effected.3 Mr. Prabhjit Jauhar, learned counsel appearing on behalf of the petitioner, states that the child is presently with the maternal grand- parents at Vadodara.4 We request Ms. Vibha Datta Makhija, senior counsel to assist the Court as amicus curiae. Ms. Makhija would be at liberty to furnish the name of an advocate to the Registry who would assist her in the matter. The Registry shall prepare and forward a complete set of papers to the amicus curiae.5 List the Special Leave Petition on 9 September 2020.8. On 9 September 2020, on the request of the amicus curiae, we had granted liberty to her to establish contact with the second respondent in order to ascertain her desires and to enable a proper representation to be made on behalf of the respondent before this Court. In pursuance of the previous order, the amicus curiae has informed the Court that the Advocate-on- Record, Mr. Gaurav Khanna communicated with the second respondent on email and, thereafter, the amicus curiae has also had a detailed conversation with the second respondent on telephone. Ms. Makhija has informed the Court that the second respondent has informed her that she has no objection to complying with the order of the High Court to enable the child to travel with the appellant to New Jersey. The second respondent has informed the amicus curiae that she has no desire to contest a legal battle.

Reasoning:
9. Though the second respondent has not entered appearance despite being served with the proceedings, this Court considered it necessary to take a view which is in the overarching interest of the minor child, who is within its jurisdiction. In several recent decisions of this Court bearing on the issue, it has been held that when confronted with a habeas corpus petition, the existence of an order of the foreign court is one circumstance which is borne in mind by the Court. The Court will have regard to whether the lawful custody of one of the spouses has been disturbed by the other. The most significant consideration is the welfare of the child.10. In Nithya Anand Raghvan vs. State (NCT of Delhi) (2017) 8 SCC 454 , a three judge Bench of this Court, noted that India is not a signatory to the Hague Convention of 1980 on Civil Aspects of International Child Abduction, which aims to prevent parents from abducting children across borders. With respect to the law applicable to the non-Convention countries, this Court observed:40. …As regards the non-Convention countries, the law is that the court in the country to which the child has been removed must consider the question on merits bearing the welfare of the child as of paramount importance and reckon the order of the foreign court as only a factor to be taken into consideration, unless the court thinks it fit to exercise the summary jurisdiction in the interests of the child and its prompt return for its welfare.This Court observed that in cases where the child is brought to India from a foreign country, which is their native country, the Court may undertake a summary inquiry or an elaborate inquiry. The Court exercises its summary jurisdiction if the proceedings have been instituted immediately after the removal of the child from their state of origin and the child has not gained roots in India. In such cases, it would be beneficial for the child to return to the native state because of the differences in language and social customs. The Court is not required to conduct an elaborate inquiry into the merits of the case to ascertain the paramount welfare of the child, leaving such inquiry to the foreign court. However, this Court clarified that:40...In either situation – be it a summary inquiry or an elaborate inquiry – the welfare of the child is of paramount consideration.While discussing the powers of the High Court in issuing a writ of habeas corpus in relation to the custody of a minor child, this Court further observed:46… Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of execution court.11. In Prateek Gupta vs. Shilpi Gupta (2018) 2 SCC 309 , this Court clarified that even if there is a pre-existing order of a foreign court with respect to the custody of the child, the principles of comity of courts, and intimate contact and closest concern are subservient to the predominant consideration of the welfare of the child. In that case, the parents and their minor child were residing in the US. After the separation of the parents, the father left the US with the child to come to India without any prior intimation. A US Court passed an order that the mother has the sole physical and legal custody of the child and declared that the father will not have any visitation rights since he had violated an interim order of the Court directing him to return with the child to the Commonwealth of Virginia. Thereafter, the mother invoked the writ jurisdiction of the High Court of Delhi seeking a remedy of the writ of habeas corpus against the father alleging that he has the child in unlawful custody. The High Court observed that the most intimate contact of the parties and the child was with the US Court, which had the closest concern with the well- being of the child and directed the father to hand over the custody to the mother. The decision of the High Court was set aside by this Court. While referring to the doctrines of the principle of comity of courts, and of intimate contact and closest concern, this Court observed:49…Though the principle of comity of court and aforementioned doctrines qua a foreign court from the territory of which the child is removed are factors which deserve notice in deciding the issue of custody and repatriation of the child, it is no longer res integra that the ever-overriding determinant would be the welfare and interest of the child.50. The doctrines of intimate contact and closest concern are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom, etc. with the portent of mutilative bearing on the process of its overall growth and grooming.12. Where a child has been removed from their native country to India, this Court has held that it would be in the best interests of the child to return to their native country if the child has not developed roots in India and no harm would be caused to the child on such return.13. The respondent arrived in India with the child in March 2019. The appellant filed for custody and for return of the minor child before the Superior Court of New Jersey, Hudson County, Chancery Division-Family Part on 16 April 2019, which awarded him temporary custody on 21 May 2019. On 10 July 2019, the appellant filed a petition under Article 32 of the Constitution seeking a writ of a habeas corpus before this Court. This Court granted the appellant liberty to move the appropriate forum. Thereafter, the appellant filed a habeas corpus petition before the High Court of Karnataka on 13 August 2019. The above sequence of events makes it evident that the appellant has acted promptly to secure the custody of the child. In such an event, this Court is only required to conduct a summary inquiry to ascertain whether there is any harm if the child returns to the US, where he was born and has been brought up. The Court is required to engage in an elaborate inquiry on the merits of the case only if a considerable time has passed since the child has been removed and if the child has developed roots in India. In either event, the primary consideration of this Court is to ascertain the welfare of the child.16. Before we address ourselves to the two conditions, we must at the outset determine as to whether the arrangement which has been envisaged by the High Court in its judgment is in the interest of the welfare of the child. Though the appellant only challenges the two conditions, we are still inclined to enquire into this issue having regard to the parens patriae jurisdiction of this Court. After hearing Mr. Prabhjit Jauhar, learned Counsel for the appellant and Ms. Vibha Datta Makhija, Senior Counsel appearing as amicus curiae, we are of the view that the interest and welfare of the child would be subserved by affirming the direction of the High Court to enable the appellant to take the child with him to the US. The child was born in the US. Undoubtedly, the child is less than four years of age today. Equally, the Court has borne in mind the fact that the second respondent has not shown any particular inclination to retain the child with her in India. The appellant has provided extensive details of his association with the child and the steps which he has taken since the birth of the child to be associated with the upbringing of the child. In fact, during the course of the hearing Mr. Jauhar, learned Counsel for the appellant even offered that the appellant would share on the video conferencing platform, the videos which the appellant has of his association with numerous activities of the child.The Court has come to the conclusion that the welfare of the child would best be served by his accompanying the appellant to the US. The child was born in the US and is a citizen of the US by birth. The appellant has taken the responsibility for shared parenting while the child was in the US. The respondent left US shores for a brief sojourn but has unilaterally resolved not to return. Both the appellant and the respondent are qualified professionals who have been employed in the US and the appellant continues to be employed there. Faced with the departure of his spouse and child, the appellant moved the court of jurisdiction in New Jersey for orders of temporary custody. He has followed their tracks to India and invoked judicial remedies here. The child has remained here for a short period and it would not be contrary to his interest to allow the appellant to take him back. Hence, independent of the desire communicated by the respondent to the amicus curiae that she does not wish to contest the proceedings, the Court has concluded that the direction of the High Court to allow the child to return to the US is in the interest of his welfare. We have enquired into this aspect though the Special Leave Petition by the petitioner is only as regards the conditions for return imposed by the High Court. This Court has an overarching duty to ensure and preserve the welfare of a minor child within its jurisdiction.17. The principal challenge in the appeal relates to the two conditions which have been imposed by the High Court while allowing the appellant to take the child with him to the US. The conditions which have been imposed by the High Court have been assailed on the ground that they are unenforceable. Condition (a) requires the appellant to obtain a certificate from an officer of the 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. Requiring the appellant to obtain a certificate of this nature that India is free of the Covid-19 pandemic serves no purpose. In the Special Leave Petition that has been filed before this Court, the appellant has, in fact, tendered an undertaking that it is only if and when the Government of India and the Government of Karnataka lift the lock down and permit international travel that the appellant would venture to take the child to the US. Moreover, it has been stated that the appellant would comply with all prevailing regulations including public health regulations facilitating the journey to the US. The second condition which has been imposed in the judgment of the High Court, similarly requires the appellant to secure a certificate from the concerned medical authority in the US certifying the 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. The appellant has submitted, and with justification, that it will be impossible to obtain a certificate of this nature in the absence of any particular authority being entrusted with the jurisdiction to issue a certificate of this kind. Moreover, the appellant has filed on the record a statement indicating that at present there are only nine positive cases of Covid-19 in Bayonne, New Jersey where the appellant has his ordinary place of resident. The conditions which were imposed by the High Court were the consequence of a well-meaning exercise. But that does not render them proper or correct.18. Before concluding, the Court record its appreciation of the objective assistance rendered by Ms Vibha Datta Makhija, Senior Counsel as amicus curiae.