Welfare of child important for custody – Supreme Court re-iterates
In the case of Sri Nilanjan Bhattacharya Vs State of Karnataka [Civil Appeal No 3284 of 2020], Supreme Court held that it would be beneficial for the child to return to the native state because of the differences in language and social customs.
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 appellant challenged the correctness of conditions (a) and (b) contained in the judgment of the High Court.
The appellant and the Respondent are married and were based in India at the time of the wedding and later moved to US. They had a child together who is a US citizen. The Respondent planned to travel to India for a short period with the child after which she informed the appellant of her plans not to return to the US and to continue to reside in India together with the child. The efforts of the appellant to persuade the respondent to return to the US have not succeeded the appellant filed for custody and for the return of the minor child before the Superior Court of New Jersey. Superior Court of New Jersey granted legal and temporary custody of the child to the appellant. The appellant has also filed for divorce before the court in New Jersey.
Subsequently, the appellant filed a petition in the High Court whose 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 –
“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;”
Supreme 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.
The court relied on the case of Prateek Gupta vs. Shilpi Gupta (2018) 2 SCC 309, where it was 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.
After due deliberation 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.”
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. 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 court concluded by holding that 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.