Civil Appeal No 3284 of 2020
(Arising out of SLP (C) No 7146 of 2020)
Sri Nilanjan Bhattacharya versus The State of Karnataka and Others
Facts of the Case :
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
The Conditions that were imposed by the High Court of Karnataka while issuing orders are as follows:
“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;”
The correctness of these conditions were challenged by the Appelant in this case.
PRECEDENTS RELIED UPON:
- Nithya Anand Raghvan vs. State (NCT of Delhi) (2017) 8 SCC 454
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 urisdiction 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.
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.”
- 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 Ravi Chandran vs. Union of India (2010) 1 SCC 174 it was held that 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
- Parens patriae – interest and the welfare of the child
The conditions which have been imposed by the High Court in clauses (a) and (b) of paragraph 18 of the judgment and order dated 7 April 2020, do not sub-serve the interests of justice. The conditions shall accordingly stand set aside. We, however, record the undertaking of the appellant that in traveling to the US with the child, the appellant shall make all necessary arrangements in accordance with the prevailing regulations prescribed by the Indian and US governments for international travel between India and the US.
To read the full judgment : https://www.livelaw.in/pdf_upload/pdf_upload-382388.pdf