In its recent judgement, the Supreme Court quashed two unfair conditions imposed by Karnataka High Court on a father who wished to take his child back to his home country (USA).
The High Court had imposed the condition that child can be taken to USA only, when a certificate is produced that India is free from, COVID-19
Brief Facts of the case Nilanjan Bhattacharya Versus The State of Karnataka and Others
The appellant and the second respondent got married on 30.11.2012, and their marriage was registered on 25.02.2013. Both parties moved to the USA in 2015.
A son was born out of wedlock on 25.02.2016. The child, Adhrit, is a US citizen. In March 2019, the second respondent and the child travelled to India and the appellant was informed that they have no plans to move back to the USA.
The appellant travelled to India in March 2019 and tried the second respondent to come back to the USA. All his efforts to reconcile with the second respondent failed. The appellant filed a case before the Superior Court of New Jersey, Hudson County, Chancery Division Family Court on 16.04.2019 and requested the Court to grant him custody of the child.
The Superior Court of New Jersey passed its order on 21.05.2019 and granted legal custody of the child to the appellant. A Divorce petition was also filed before the New Jersey Court on 06.06.2019.
Then on 13..09.2020, the appellant filed a writ of Habeas Corpus before the High Court of Karnataka. The division bench of the Court passed an order stating that the appellant can take the child back to the USA. However, the High Court imposed two conditions:-
a) An officer from District Health Office Bengaluru should certify that India is free of Covid-19 and it was safe for the minor child to travel to the USA.
b) A similar letter should be obtained from a medical authority in the USA stating that there is no threat to the area where the child is supposed to be shifted.
The appellant moved the Supreme Court of India and challenged the correctness of the conditions mentioned above.
Proceeding before the Supreme Court
The second- Respondent( the wife) did not appear before the Court even though the notice was served to her. The AOR and the amicus curiae established contact with the second respondent. They submitted to the Court that she had no objections as regards to the High Court order and has allowed the child to move to the USA with the appellant. The second respondent also informed the Court that she had no desire to contest the legal battle in Court.
The Court examined various decisions rendered by the Courts in India in particular to Nithya Anand Raghvan vs State (NCT of Delhi) where it was held that our country India has not signed the Hague Conventions of 1980 on “Civil Aspects of International Child Abduction”, which aims to prevent parents from abducting children across borders.
The Court also observed that in cases where a child is a native of a foreign country and is brought to India, 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 a detailed inquiry into the merits of the case to ascertain the paramount welfare of the child, leaving such inquiry to the foreign Court.
Further the Court also noted the fact that the appellant was doing well professionally and was taking an active part in the life of the child. The Court also relied on the communication of the second respondent that stated that she did not mind if the child went to the USA with the father.
After going through all the facts of the case, the Court opined that it is in the best interest of the child to move to the USA with his father.
On the issue regarding conditions imposed by the High Court, the Supreme Court held that the petitioner had given assurance to the Court that he will only travel to the USA when things are better in India and will follow all the guidelines.
The Court also agreed with the argument of the appellant that it would be impossible to get a certification from the USA stating that the country was free from COVID-19. The Court also observed that based on the evidence filed by the appellant, there were only nine positive cases of Coronavirus in Bayonne, New Jersey, where the appellant has his ordinary place of residence.
The Decision of the Court
The Court held that the conditions imposed by the High Court do not sub-serve the interests of justice and were set aside. The Court directed the appellant to take all the necessary precautions while taking the child to the USA.
Title: Sri Nilanjan Bhattacharya Versus The State of Karnataka and Others
Case No.: Civil Appeal 3284 of 2020
Date of Order:23.09.2020
Coram: Hon’ble Justice Dr Dhananjaya Y Chandrachud, Hon’ble Justice Indu Malhotra and Hon’ble Justice K.M. Joseph