Custody – Of minor child – Parens patriae jurisdiction – Appellant and second respondent got married in India in 2012 – Moved to the US in April 2015 – A son was born in December 2016 – Second respondent came to India with the child in March 2019 and stayed back – Appellant granted legal and temporary custody of the minor child by Superior Court of New Jersey in May 2019 – Petition for habeas corpus filed by appellant before High Court of Karnataka in August 2019 – Division Bench vide order dtd. 07.04.20, allowed the appellant to take the minor child with him to the US, however imposed two conditions that the appellant will have to obtain certificates certifying that India is free of Covid-19 and it is safe for the minor child to travel to the US; and also that in the US, specifically the region where the appellant is residing it is congenial for shifting of residence of the minor child to New Jersey – On appeal, held: Though the appellant only challenges the said two conditions, in view of the parens patriae jurisdiction of this Court it is also being determined as to whether the arrangement envisaged by the High Court is in the interest of the welfare of the child – Welfare of the child would best be served by his accompanying the appellant to the US – Child is a citizen of the US by birth – Appellant has taken the responsibility for shared parenting while the child was in the US – Respondent left US shores for a brief sojourn but unilaterally resolved not to return – Direction of the High Court to allow the child to return to the US is in the interest of his welfare – However, conditions imposed do not sub-serve the interests of justice and are set aside.
Allowing the appeal, the Court
HELD: 1.1 In several recent decisions of this Court bearing on the issue, it has been held that when confronted with a habeas corpus petition, the existence of an order of the foreign court is one circumstance which is borne in mind by the Court. The Court will have regard to whether the lawful custody of one of the spouses has been disturbed by the other. The most significant consideration is the welfare of the child. The respondent arrived in India with the child in March 2019. The appellant filed for custody and for return of the minor child before the Superior Court of New Jersey, Hudson County, Chancery Division-Family Part on 16 April 2019, which awarded him temporary custody on
21 May 2019. On 10 July 2019, the appellant filed a petition under Article 32 of the Constitution seeking a writ of a habeas corpus before this Court. This Court granted the appellant liberty to move the appropriate forum. Thereafter, the appellant filed a habeas corpus petition before the High Court of Karnataka on 13 August 2019. The above sequence of events makes it evident that the appellant has acted promptly to secure the custody of the child. In such an event, this Court is only required to conduct a summary inquiry to ascertain whether there is any harm if the child returns to the US, where he was born and has been brought up. The Court is required to engage in an elaborate inquiry on the merits of the case only if a considerable time has passed since the child has been removed and if the child has developed roots in India. In either event, the primary consideration of this Court is to ascertain the welfare of the child. [Paras 9, 13][452-A-B; 455-A-D]
1.2 It must at the outset be determined as to whether the arrangement which has been envisaged by the High Court in its judgment is in the interest of the welfare of the child. Though the appellant only challenges the two conditions, this Court is still inclined to enquire into this issue having regard to the parens patriae jurisdiction of this Court. The child was born in the US and is a citizen of the US by birth. Undoubtedly, the child is less than four years of age today. Equally, the Court has borne in mind the fact that the second respondent has not shown any particular inclination to retain the child with her in India. The appellant has provided extensive details of his association with the child and the steps which he has taken since the birth of the child to be associated with the upbringing of the child. 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. Both the appellant and the respondent are qualified professionals who have been employed in the US and the appellant continues to be employed there. Faced with the departure of his spouse and child, the appellant moved the court of jurisdiction in New Jersey for orders of temporary custody. He has followed their tracks to India and invoked judicial remedies here. The child has remained here 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. This Court has 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. [Para 16] [457-G-H; 458-A-B, C-F]
1.3 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 were imposed by the High Court were the consequence of a well-meaning exercise. But that does not render them proper or correct. The conditions which have been imposed by the High Court in clauses (a) and (b) of paragraph 18 of the judgment and order dated 7 April 2020, do not sub-serve the interests of justice. The conditions shall accordingly stand set aside. However, the undertaking of the appellant is recorded 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. Further directions issued. [Paras 17, 19 and 20][458-G; 459-F-H]
Nithya Anand Raghvan v. State (NCT of Delhi) (2017)
8 SCC 454: [2017] 7 SCR 281; Prateek Gupta v. Shilpi Gupta (2018) 2 SCC 309:[2017] 13 SCR 230; V. Ravi Chandran v. Union of India (2010) 1 SCC 174:[2009]
15 SCR 960 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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