The SC bench comprising Justices DY Chandrachud, Indu Malhotra and KM Joseph observed that the most significant consideration while issuing a writ of habeas corpus in relation to minor child custody matter is the welfare of the child.  The facts of the case are the appellant (Father of Minor child) married the second respondent (Mother of Minor child) on 30 November 2012. The appellant and the second respondent who were based in India at the time of the wedding moved to the US in April 2015 and were employed there. On 25 December 2016, a son (Minor child) was born to the appellant and the second respondent. In March 2019, the second respondent planned to travel to India for a short period with the child. After reaching India, the second respondent is alleged to have informed the appellant of her plans not to return to the US and to continue to reside in India together with the child. The appellant tried to persuade the second respondent to move to US which she declined. Later the appellant then filed for custody and for the return of the minor child before the Superior Court of New Jersey who granted him legal and temporary custody of the minor child, after which the appellant also filed a writ of habeas corpus before Hon’ble High Court of Karnataka, which allowed him to take the minor child with certain conditions.

An appeal was filed by appellant before the Apex Court against the conditions which were imposed by High Court while allowing to take the minor child back to US which were (a) required him 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. (b) requires him 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.

Taking note of the facts of the case, the bench concluded that the welfare of the child would best be served by him accompanying the father to the US as the child was born in the US and is a citizen of the US by birth. It said:

Both the appellant and the respondent are qualified professionals who have been employed in the US and the appellant continues to be employed there. The child has remained in India for a short period and it would not be contrary to his interest to allow the appellant to take him back. Hence, 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.

The SC bench while setting aside the conditions imposed by the High Court has also issued certain directions while disposing the appeal and also recorded the undertaking given by the appellant that he shall comply with the regulations in force for facilitating travel between India and the US on the date of travel.

 

Judgment Link: Sri Nilanjan Bhattacharya v. State of Karnataka

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