Supreme Court Sets Aside High Court Conditions for Child Repatriation to the US in Habeas Corpus Case: Sri Nilanjan Bhattacharya vs. State of Karnataka (2020) INSC 483 (23 September 2020)

Introduction

Date of the Judgment: 23 September 2020

Citation: (2020) INSC 483

Judges: Dr. Justice Dhananjaya Y Chandrachud, Justice Indu Malhotra, Justice K.M. Joseph

Can a High Court impose conditions, particularly concerning health certificates during a pandemic, when ordering the repatriation of a child to their native country in a habeas corpus case? The Supreme Court of India addressed this question in a recent case involving a father seeking the return of his child to the United States. The core issue revolved around the validity of conditions imposed by the High Court of Karnataka that required health certificates related to the COVID-19 pandemic before the child could be repatriated to the US. The judgment was delivered by a three-judge bench comprising Dr. Justice Dhananjaya Y Chandrachud, Justice Indu Malhotra, and Justice K.M. Joseph, with the opinion authored by Dr. Justice Dhananjaya Y Chandrachud.

Case Background

The appellant, Sri Nilanjan Bhattacharya, married the second respondent on 30 November 2012. Their marriage was registered in Kerala on 25 February 2013. The couple moved to the United States in April 2015, where the appellant worked for his employer. The second respondent also found employment in the US. On 25 December 2016, their child, Adhrit, was born, who is a US citizen. In March 2019, the second respondent traveled to India with the child, and subsequently informed the appellant of her decision not to return to the US, intending to reside in India with the child. The appellant traveled to Bengaluru on 28 March 2019, attempting to resolve the matter with the second respondent. After failed attempts at reconciliation, the appellant filed for custody and the return of the child in the Superior Court of New Jersey on 16 April 2019. The New Jersey court granted temporary custody to the appellant on 21 May 2019. The appellant also filed for divorce in New Jersey on 6 June 2019.

Timeline:

Course of Proceedings

The appellant initially filed a petition before the Supreme Court of India under Article 32 of the Constitution, seeking a writ of habeas corpus, which was withdrawn with the liberty to approach the appropriate forum. Subsequently, the appellant filed a habeas corpus petition before the High Court of Karnataka on 13 August 2019. The High Court allowed the petition on 7 April 2020, granting the appellant permission to take the child back to the US. However, the High Court imposed two conditions: (a) a certificate from a District Health Officer in Bengaluru confirming India was COVID-19 free and safe for the child to travel to the US; and (b) a certificate from a US medical authority confirming conditions in the appellant’s area were safe for the child. The appellant challenged these conditions before the Supreme Court.

Legal Framework

The Supreme Court considered the principles governing the issuance of a writ of habeas corpus in child custody matters, particularly when a child has been removed from their native country. The Court referred to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction,” noting that India is not a signatory. However, the Court emphasized that even in non-Convention countries, the welfare of the child is the paramount consideration. The Court also considered the principle of comity of courts and the concept of “intimate contact and closest concern,” but reiterated that these are subservient to the welfare of the child.

The Court noted that in cases where a child is brought to India from their native country, the Court may undertake a summary inquiry or an elaborate inquiry. A summary inquiry is appropriate if the proceedings are instituted promptly after the removal of the child and the child has not gained roots in India. In such cases, it would be beneficial for the child to return to their native state.

The Court also discussed the powers of the High Court in issuing a writ of habeas corpus in relation to the custody of a minor child, stating that the order of a foreign court must yield to the welfare of the child. The remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of execution court.

Arguments

The appellant argued that the conditions imposed by the High Court were unenforceable. Specifically, condition (a), requiring a certificate that India is free of COVID-19, was impractical, and condition (b), requiring a certificate from a US medical authority about the safety of the appellant’s region, was also impossible to obtain. The appellant also submitted that he would comply with all regulations for international travel and public health.

The amicus curiae, Ms. Vibha Datta Makhija, informed the Court that the second respondent had no objection to the child traveling with the appellant to New Jersey and did not wish to contest the legal battle.

The appellant highlighted his active involvement in the child’s life, providing a detailed list of instances where he had taken the child on vacations and spent time with him. He also assured the Court that his mother would provide additional support in caring for the child. Further, the appellant expressed his willingness to provide financial assistance to the second respondent to travel to New Jersey and offered to arrange accommodation for her. Alternatively, he agreed to provide video conferencing access and bear the expenses for the second respondent to visit the child in the US, and for the child to visit her in India annually.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section but addressed the following key issues:

1. Whether the conditions imposed by the High Court for the repatriation of the child were valid and enforceable.
2. Whether the arrangement which has been envisaged by the High Court in its judgment is in the interest of the welfare of the child.
3. Whether the child should be returned to the US, considering the child’s citizenship, the order of the New Jersey court, and the welfare of the child.

Treatment of the Issue by the Court

Authorities

Judgment

The Court considered the authorities as follows:

• Nithya Anand Raghvan vs. State (NCT of Delhi) [CITATION]: The Supreme Court followed this case, emphasizing that in non-Convention countries, the welfare of the child is paramount. The Court noted 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.
• Prateek Gupta vs. Shilpi Gupta [CITATION]: The Supreme Court followed this case, clarifying that the principles of comity of courts and “intimate contact and closest concern” are subservient to the welfare of the child.
• V Ravi Chandran vs. Union of India [CITATION]: The Supreme Court followed this case, holding 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.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the welfare of the child. The Court considered several factors, including the child’s US citizenship, the appellant’s active involvement in the child’s life, the prompt action taken by the appellant to seek custody, and the second respondent’s lack of objection to the child’s return to the US. The Court also noted that the child had not developed significant roots in India. Additionally, the Court was influenced by the impracticality and unenforceability of the conditions imposed by the High Court.

The Court’s reasoning was a mix of factual considerations (the child’s citizenship, the appellant’s involvement, and the second respondent’s position) and legal principles (the paramountcy of the child’s welfare, the principles of comity of courts, and the application of habeas corpus jurisdiction).

The Court considered the impracticality of the conditions imposed by the High Court, noting that requiring a certificate that India was free of COVID-19 was not feasible, and obtaining a certificate from a US medical authority was also impossible. The Court also considered that the child was a US citizen, had lived in the US since birth, and that the appellant had been actively involved in the child’s life. The Court also noted that the second respondent had not shown a particular inclination to retain the child in India. The Court also took into account the second respondent’s lack of objection to the child’s return to the US.

The Court stated:

“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 Court has come to the conclusion that the welfare of the child would best be served by his accompanying the appellant to the US.”

“This Court has an overarching duty to ensure and preserve the welfare of a minor child within its jurisdiction.”

Key Takeaways

• High Courts should not impose impractical or unenforceable conditions in habeas corpus cases related to child custody, especially concerning health certificates during a pandemic.
• The welfare of the child is the paramount consideration in child custody disputes, and the principles of comity of courts and “intimate contact and closest concern” are subservient to this.
• In cases where a child is removed from their native country, a summary inquiry is sufficient if proceedings are instituted promptly and the child has not developed roots in the new country.
• Courts must ensure that orders do not create undue hardship or impossibility for any party to comply with.
• Even in cases where a foreign court has passed an order, the Indian court will look into the welfare of the child.

Directions

The Supreme Court set aside conditions (a) and (b) of the High Court’s judgment. The Court directed that:

• The appellant must comply with the travel regulations between India and the US.
• If the second respondent wishes to relocate to the US, the appellant shall cover her travel, lodging, and boarding expenses.
• If the second respondent does not wish to relocate, the appellant must provide video conferencing access to the child on Fridays, Saturdays, and Sundays.
• The appellant must bear the second respondent’s travel expenses to the US once a year for ten days to meet the child.
• The appellant must bring the child to India once a year for ten days to allow the second respondent to meet the child.
• Condition (d) of the High Court’s order is maintained, and the arrangements are subject to any final directions issued by a competent court regarding custody, access, and visitation.
• The second respondent is required to cooperate by providing the necessary documents to facilitate the child’s travel.

Development of Law

The ratio decidendi of this case is that while considering a habeas corpus petition in child custody matters, the welfare of the child is paramount. The Court reiterated that the principles of comity of courts and “intimate contact and closest concern” are subservient to the welfare of the child. The Court also emphasized that orders must be practical and enforceable, and that conditions imposed by the High Court should not create undue hardship or impossibility for any party to comply with. This case reinforces the principle that the best interests of the child are of primary importance, and that orders should facilitate the child’s well-being.

Conclusion

The Supreme Court allowed the appeal, setting aside the impractical conditions imposed by the High Court of Karnataka for the repatriation of the child to the US. The Court emphasized that the welfare of the child is paramount and that orders must be practical and enforceable. The Court also laid down directions to ensure the second respondent’s access to the child. The judgment underscores the principle that in child custody disputes, the child’s well-being is the primary concern, and courts must make decisions that serve the best interests of the child.