SRI NILANJAN BHATTACHARYA versus THE STATE OF KARANATAKA AND OTHERS

Citation: [2020] 14 S.C.R. 445 · Decided: 23-09-2020 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SRI NILANJAN BHATTACHARYA
v.
THE STATE OF KARANATAKA AND OTHERS
(Civil Appeal No. 3284 of 2020)
SEPTEMBER 23, 2020
[DR. DHANANJAYA Y CHANDRACHUD,
INDU MALHOTRA AND K. M. JOSEPH, JJ.]
Custody – Of minor child – Parens patriae jurisdiction –
Appellant and second respondent got married in India in 2012 –
Moved to the US in April 2015 – A son was born in December 2016
– Second respondent came to India with the child in March 2019
and stayed back – Appellant granted legal and temporary custody
of the minor child by Superior Court of New Jersey in May 2019 –
Petition for habeas corpus filed by appellant before High Court of
Karnataka in August 2019 – Division Bench vide order dtd.
07.04.20, allowed the appellant to take the minor child with him to
the US, however imposed two conditions that the appellant will have
to obtain certificates certifying that India is free of Covid-19 and it
is safe for the minor child to travel to the US; and also that in the
US, specifically the region where the appellant is residing it is
congenial for shifting of residence of the minor child to New Jersey
– On appeal, held: Though the appellant only challenges the said
two conditions, in view of the parens patriae jurisdiction of this Court
it is also being determined as to whether the arrangement envisaged
by the High Court is in the interest of the welfare of the child –
Welfare of the child would best be served by his accompanying the
appellant to the US – Child is a citizen of the US by birth – Appellant
has taken the responsibility for shared parenting while the child
was in the US – Respondent left US shores for a brief sojourn but
unilaterally resolved not to return – Direction of the High Court to
allow the child to return to the US is in the interest of his welfare –
However, conditions imposed do not sub-serve the interests of justice
and are set aside.
Allowing the appeal, the Court
HELD: 1.1 In several recent decisions of this Court bearing
on the issue, it has been held that when confronted with a habeas
[2020] 14 S.C.R. 445
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SUPREME COURT REPORTS
[2020] 14 S.C.R.
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. 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. [Paras 9, 13][452-A-B;
455-A-D]
1.2 It must at the outset be determined 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, this Court is still
inclined to enquire into this issue having regard to the parens
patriae jurisdiction of this Court. The child was born in the US
and is a citizen of the US by birth. 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. 

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