The bench of Justices DY Chandrachud, Indu Malhotra and KM Joseph while deciding a writ of habeas corpus related to custody matter, considering the welfare of the child, observed 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”.
“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 bench mentioned in the order.
In the matter, the appellant is the father namely Nilanjan Bhattacharya, of a “three and a half year old child”. The father preferred appeal being aggrieved by the condition imposed by the High Court, however the High Court had allowed father to take his child back to the United States of America.
The bench noted the conditions which was challenged by the father,
“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. 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 father said in his petition that it is impossible to get such certificate as per the condition, in the absence of any particular authority.
The bench then said that the conditions is the result of a good practice followed by the High Court, but not rendered properly.
“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.”
The bench came into conclusion that “the welfare of the child would be with father”, considering the child’s birth and citizenship of the US and also noted his conduct that the he has taken responsibility for Shared parenting in the US.
“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 mother denied to contest the proceedings which was communicated to the Court by the the amicus curiae. On this bench said that “it is their duty to ensure the welfare of minor child“.
“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.”
The bench then set aside the conditions imposed by the High Court and instructed the father to ensure all necessary arrangements which essentially required for international travel between India and the US.
“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.”