The “First Strike” in Child Custody Battles IV

Nilanjan and Second Respondent, who were based in India at the time of the wedding, moved to the US in April, 2015. 25.12.2016, Adhrit was born. He is a US citizen. Second Respondent, after travelling to India in 2019, informed Nilanjan of her plans not to return to the US and to continue to reside in India with Adhrit.

Nilanjan is, at present, employed as Vice President, Goldman Sachs, New Jersey on a remuneration of $164,000 per annum. 16.04.2019, Nilanjan filed for custody and for the return of the minor child before Superior Court of New Jersey, Hudson County, Chancery Division – Family Part. 21.05.2019, Superior Court of New Jersey granted legal and temporary custody. 07.04.2020, High Court of Karnataka allowed Nilanjan to take the minor child with him to the US. HC observed, i) Adhrit shall be repatriated only after a certificate being issued by the Officer of the Rank of District Health Office of Bengaluru in certifying that this Country is free of COVID-19 pandemic and it is safe for the travel of Adhrit to the US and ii) Nilanjan shall also secure a certificate from the concerned Medical Authority at the US, certifying that the condition, particularly in the region where Nilanjan resides, is congenial for shifting the residence of Adhrit – in compliance of the order passed by Court of New Jersey.

In Nithya Anand Raghvan, (2017) 8 SCC 454 SC observed that in cases where the child is brought to India from a Foreign Country, which is their Native Country, Court may undertake a summary inquiry or an elaborate inquiry. In either situation, the welfare of the child is of paramount consideration. Also see, Prateek Gupta, (2018) 2 SCC 309.

Court has been apprised of the fact, should the Second Respondent not be willing to relocate to the US, i) Nilanjan shall provide access through video-conferencing, on Fridays-Saturdays-Sundays, to the Second Respondent for at least a duration of thirty minutes and even more, should Adhrit and the Second Respondent so require; ii) Nilanjan would be ready and willing to bear the expenses of the Second Respondent for travel to the US for a period of ten days once in a year for the purpose of meeting Adhrit; and (iii) Nilanjan would bring Adhrit to India for a period of ten days on an annual basis when access would be provided to the Second Respondent.

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. 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.

Requiring the Appellant to obtain a certificate serves no purpose. Appellant has, in fact, tendered an undertaking that it is only if and when the Government of India and the Government of Karnataka lift the lock down and permit international travel that the Appellant would venture to take the child to the US. Moreover, it has been stated that the Appellant would comply with all prevailing regulations including public health regulations facilitating the journey to the US.

Appellant has filed on the record a statement indicating that at present there are only 9 positive cases of COVID-19 in Bayonne, New Jersey where the Appellant has his ordinary place of residence. The conditions which were imposed by High Court were the consequence of a well-meaning exercise. But that does not render them proper or correct.”

Hon’ble Justice Dr. D.Y. Chandrachud, Nilanjan Bhattacharya v. The State of Karnataka, [Civil Appeal No. 3284 of 2020].