[Habeas Corpus Writ For Child Custody] Most Significant Consideration Is The Welfare Of The Child, Reiterates SC [Read Order]

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 Supreme Court has reiterated.

The Apex Court was considering an appeal filed by a father against the conditions which were imposed by the High Court while allowing him to take the child back to the United States of America. Condition (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. The second condition 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.

While considering the appeal, the bench comprising Justices DY Chandrachud, Indu Malhotra and KM Joseph observed:

"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."

Taking note of the facts of the case, the bench concluded that the welfare of the child would best be served by his 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. 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. 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 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 said while setting aside the conditions imposed by the High Court. The court has also issued certain directions while disposing the appeal and also recorded the undertaking given by the father that he shall comply with the regulations in force for facilitating travel between India and the US on the date of travel.

Case no.: Civil Appeal No 3284 of 2020

Case name:  Nilanjan Bhattacharya vs. State of Karnataka

Counsel: Justices DY Chandrachud, Indu Malhotra and KM Joseph 

Counsel: Adv Prabhjit Jauhar, Sr. Adv Vibha Datta Makhija (Amicus Curiae) 

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