SRI NILANJAN BHATTACHARYA versus THE STATE OF KARANATAKA AND OTHERS on 23 September 2020

[2020] 14 S.C.R. 445

SRI NILANJAN BHATTACHARYA

v.

THE STATE OF KARANATAKA AND OTHERS

(Civil Appeal No. 3284 of 2020)

SEPTEMBER 23, 2020

[DR. DHANANJAYA Y CHANDRACHUD,INDU MALHOTRA AND K. M. JOSEPH, JJ.]

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 2019and stayed back – Appellant granted legal and temporary custodyof the minor child by Superior Court of New Jersey in May 2019 –Petition for habeas corpus filed by appellant before High Court ofKarnataka in August 2019 – Division Bench vide order dtd.07.04.20, allowed the appellant to take the minor child with him tothe US, however imposed two conditions that the appellant will haveto obtain certificates certifying that India is free of Covid-19 and itis safe for the minor child to travel to the US; and also that in theUS, specifically the region where the appellant is residing it iscongenial for shifting of residence of the minor child to New Jersey– On appeal, held: Though the appellant only challenges the saidtwo conditions, in view of the parens patriae jurisdiction of this Courtit is also being determined as to whether the arrangement envisagedby the High Court is in the interest of the welfare of the child –Welfare of the child would best be served by his accompanying theappellant to the US – Child is a citizen of the US by birth – Appellanthas taken the responsibility for shared parenting while the childwas in the US – Respondent left US shores for a brief sojourn butunilaterally resolved not to return – Direction of the High Court toallow the child to return to the US is in the interest of his welfare –However, conditions imposed do not sub-serve the interests of justiceand are set aside.

Allowing the appeal, the Court

HELD: 1.1 In several recent decisions of this Court bearingon the issue, it has been held that when confronted with a habeas

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Acorpus petition, the existence of an order of the foreign court isone circumstance which is borne in mind by the Court. The Courtwill have regard to whether the lawful custody of one of thespouses has been disturbed by the other. The most significantconsideration is the welfare of the child. The respondent arrivedin India with the child in March 2019. The appellant filed forBcustody and for return of the minor child before the SuperiorCourt of New Jersey, Hudson County, Chancery Division-FamilyPart on 16 April 2019, which awarded him temporary custody on21 May 2019. On 10 July 2019, the appellant filed a petition underArticle 32 of the Constitution seeking a writ of a habeas corpusCbefore this Court. This Court granted the appellant liberty tomove the appropriate forum. Thereafter, the appellant filed ahabeas corpus petition before the High Court of Karnataka on 13August 2019. The above sequence of events makes it evidentthat the appellant has acted promptly to secure the custody ofthe child. In such an event, this Court is only required to conductDa summary inquiry to ascertain whether there is any harm if thechild returns to the US, where he was born and has been broughtup. The Court is required to engage in an elaborate inquiry onthe merits of the case only if a considerable time has passed sincethe child has been removed and if the child has developed rootsEin India. In either event, the primary consideration of this Courtis 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 thearrangement which has been envisaged by the High Court in itsFjudgment is in the interest of the welfare of the child. Though theappellant only challenges the two conditions, this Court is stillinclined to enquire into this issue having regard to the parenspatriae jurisdiction of this Court. The child was born in the USand is a citizen of the US by birth. Undoubtedly, the child is lessthan four years of age today. Equally, the Court has borne in mindGthe fact that the second respondent has not shown any particularinclination to retain the child with her in India. The appellant hasprovided extensive details of his association with the child andthe steps which he has taken since the birth of the child to beassociated with the upbringing of the child. The appellant hasH

taken the responsibility for shared parenting while the child wasin the US. The respondent left US shores for a brief sojourn buthas unilaterally resolved not to return. Both the appellant andthe respondent are qualified professionals who have beenemployed in the US and the appellant continues to be employedthere. Faced with the departure of his spouse and child, theappellant moved the court of jurisdiction in New Jersey for ordersof temporary custody. He has followed their tracks to India andinvoked judicial remedies here. The child has remained here fora short period and it would not be contrary to his interest to allowthe appellant to take him back. Hence, independent of the desirecommunicated by the respondent to the amicus curiae that shedoes not wish to contest the proceedings, the Court has concludedthat the direction of the High Court to allow the child to return tothe US is in the interest of his welfare. This Court has enquiredinto this aspect though the Special Leave Petition by the petitioneris only as regards the conditions for return imposed by the HighCourt. This Court has an overarching duty to ensure and preservethe 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 twoconditions which have been imposed by the High Court whileallowing the appellant to take the child with him to the US. Theconditions which were imposed by the High Court were theconsequence of a well-meaning exercise. But that does not renderthem proper or correct. The conditions which have been imposedby the High Court in clauses (a) and (b) of paragraph 18 of thejudgment and order dated 7 April 2020, do not sub-serve theinterests of justice. The conditions shall accordingly stand setaside. However, the undertaking of the appellant is recorded thatin traveling to the US with the child, the appellant shall make allnecessary arrangements in accordance with the prevailingregulations prescribed by the Indian and US governments forinternational travel between India and the US. Further directionsissued. [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. ShilpiGupta (2018) 2 SCC 309:[2017] 13 SCR 230; V. Ravi AB

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AChandran v. Union of India (2010) 1 SCC 174:[2009]15 SCR 960 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3284of 2020

From the Judgment and Order dated 07.04.2020 of the High CourtCof Karnataka at Bengaluru in Writ Petition HC No. 93/2019.

Ms. Vibha Datta Makhija, Sr. Adv., Gaurav Khanna, PrabhjitJauhar, Ms. Tulika Bhatnagar, Ranveer Talwar, S. S. Jauhar, Advs. forthe appearing parties.DThe Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from a judgment of a Division Bench of theEHigh Court of Karnataka, on a petition for habeas corpus filed by theappellant, who is the father of a three and a half year old child. Theappellant is aggrieved by the conditions which were imposed by theHigh Court while allowing him to take the child back to the United Statesof America.

F3. The appellant married the second respondent on 30 November2012. The marriage was registered at Aranmula in Kerala on 25 February2013. The appellant and the second respondent who were based in Indiaat the time of the wedding moved to the US in April 2015. The appellantrelocated to the US at the behest of his employer. Once the couplereached the US, the second respondent found employment as aGmanagement consultant in New Jersey. The parties resided for a periodof three years in New Jersey after which the respondent was employedas a Software Engineer in New York. On 25 December 2016, Adhritwas born to the appellant and the second respondent. The child is a UScitizen.

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4. In March 2019, the second respondent planned to travel toIndia for a short period with the child. After reaching India, the secondrespondent is alleged to have informed the appellant of her plans not toreturn to the US and to continue to reside in India together with thechild. The appellant came to Bengaluru on 28 March 2019, when hestates that he made an effort to contact the second respondent. On 13April 2019, the appellant met the second respondent to explore anamicable resolution of the issues which the couple had faced in themarriage. The appellant was given access to the child on 13, 14 and 15April 2019. The efforts of the appellant to persuade the second respondentto return to the US have not succeeded. On 16 April 2019, the appellantfiled for custody and for the return of the minor child before the SuperiorCourt of New Jersey, Hudson County, Chancery Division- Family Part.The second respondent was served on 26 April 2019. On 21 May 2019,the Superior Court of New Jersey granted legal and temporary custodyof the child to the appellant. The appellant has also filed for divorce on 6June 2019 before the court in New Jersey.

5. On 10 July 2019, the appellant filed a petition before this Courtunder Article 32 of the Constitution seeking writ of a habeas corpus.The petition was withdrawn with liberty to move the appropriate forum,which resulted in the filing of a habeas corpus petition before the HighCourt of Karnataka on 13 August 2019. By its judgment dated 7 April2020, the Division Bench allowed the petition and granted the requestof the appellant to allow him to take the minor child with him to the US.While doing so, the High Court imposed two conditions in paragraph 18of its judgment and order dated 7 April 2020, which form the subjectmatter of the present proceedings. Paragraph 18 of the judgment isextracted below:

“Under the circumstances, this writ petition is allowed holdingthat the minor child - Master Adhrit Bhattacharya is required tobe repatriated to USA in compliance of the order of New JerseyCourt. However, the repatriation shall not be made until normalcyis restored with reference to health scenario in USA in theaftermath of COVID - 19 pandemic. Therefore, we would observeas under:

(a) That the minor child shall be repatriated only after a certificatebeing issued by the Officer of the rank of District Health Office AB

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of Bengaluru in certifying that this Country is free of COVID - 19pandemic and it is safe for the travel of minor child to USA; A

(b) Simultaneously the petitioner herein shall also secure acertificate from the concerned Medical authority at USA incertifying that the condition in USA, particularly in the region whereBthe petitioner is residing is congenial for shifting the residence ofminor child – Master Adhrit Bhattacharya in compliance of theorder passed by the Court of New Jersey;

(c) On production of such documents, the authorities concernedare directed to permit repatriation of the minor child - MasterCAdhrit Bhattacharya from Bengaluru, India to USA; (d) While doing so, it is also observed that in the event if therespondent - wife is reconsidering her decision in relocating herselfto USA and settle there in the interest of the minor child, all libertiesare reserved to her to take the child along with her subject toDsecuring the certificate as referred to supra and on reaching USAto approach the competent court which has passed the interimorder of custody of minor child to the petitioner and also formodification of the same by explaining the circumstances underwhich she is staking her claim for the custody of the child;”

E6. The appellant has challenged the correctness of conditions (a)and (b) contained in paragraph 18 of the judgment of the High Court.

7. This Court issued notice on the Special Leave Petition on 4June 2020. Thereafter, finding that the second respondent had not beenserved, on 8 July 2020, fresh service was directed through email. ThisFCourt reiterated the direction for service on 20 July 2020, when a directionwas also issued for grant of video conferencing access to the appellanton every alternate day. Since the second respondent had not enteredappearance, an order was passed on 28 August 2020, by which Ms.Vibha Datta Makhija, learned Senior Counsel was appointed as amicuscuriae. The order of this Court dated 28 August 2020 is extracted below:G

“1 The High Court, by its order dated 7 April 2020, allowed thehabeas corpus petition filed by the petitioner who is the father ofa three and a half year old minor child and has permitted the childto be taken to New Jersey, US where the petitioner ordinarilyresides. The child is a US citizen.

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2. Though notice has been issued by this Court on two occasions,the second respondent has not appeared. The Special LeavePetition is directed against the conditions (a) and (b) which havebeen imposed by the High Court in its impugned order. While theCourt is conscious of the fact that the Special Leave Petitionmerely challenges the conditions subject to which the habeascorpus petition has been allowed, the welfare of a minor child ofless than five years of age is involved in the present case. Havingregard to the nature of the jurisdiction of this Court, we are of theview that the ends of justice would be served if an amicus curiaeis appointed to assist the Court since the second respondent hasnot entered appearance through counsel. The office report dated25 August 2020 indicates that service has been effected.

3. Mr. Prabhjit Jauhar, learned counsel appearing on behalf of thepetitioner, states that the child is presently with the maternal grand-parents at Vadodara.

4. We request Ms. Vibha Datta Makhija, senior counsel to assistthe Court as amicus curiae. Ms. Makhija would be at liberty tofurnish the name of an advocate to the Registry who would assisther in the matter. The Registry shall prepare and forward acomplete set of papers to the amicus curiae.

5. List the Special Leave Petition on 9 September 2020.”

8. On 9 September 2020, on the request of the amicus curiae,we had granted liberty to her to establish contact with the secondrespondent in order to ascertain her desires and to enable a properrepresentation to be made on behalf of the respondent before this Court.In pursuance of the previous order, the amicus curiae has informed theCourt that the Advocate-on- Record, Mr. Gaurav Khanna communicatedwith the second respondent on email and, thereafter, the amicus curiaehas also had a detailed conversation with the second respondent ontelephone. Ms. Makhija has informed the Court that the secondrespondent has informed her that she has no objection to complying withthe order of the High Court to enable the child to travel with the appellantto New Jersey. The second respondent has informed the amicus curiaethat she has no desire to contest a legal battle.

9. Though the second respondent has not entered appearancedespite being served with the proceedings, this Court considered it AB

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Anecessary to take a view which is in the overarching interest of theminor child, who is within its jurisdiction. In several recent decisions ofthis Court bearing on the issue, it has been held that when confrontedwith a habeas corpus petition, the existence of an order of the foreigncourt is one circumstance which is borne in mind by the Court. TheCourt will have regard to whether the lawful custody of one of theBspouses has been disturbed by the other. The most significantconsideration is the welfare of the child.

10. In Nithya Anand Raghvan vs. State (NCT of Delhi)[1], athree judge Bench of this Court, noted that India is not a signatory to theHague Convention of 1980 on “Civil Aspects of International ChildCAbduction”, which aims to prevent parents from abducting children acrossborders. With respect to the law applicable to the non-Conventioncountries, this Court observed:

“40. …As regards the non-Convention countries, the law is thatthe court in the country to which the child has been removed mustDconsider the question on merits bearing the welfare of the child asof paramount importance and reckon the order of the foreign courtas only a factor to be taken into consideration, unless the courtthinks it fit to exercise the summary jurisdiction in the interests ofthe child and its prompt return for its welfare.”

EThis Court observed that in cases where the child is brought toIndia from a foreign country, which is their native country, the Courtmay undertake a summary inquiry or an elaborate inquiry. The Courtexercises its summary jurisdiction if the proceedings have been institutedimmediately after the removal of the child from their state of origin andFthe child has not gained roots in India. In such cases, it would be beneficialfor the child to return to the native state because of the differences inlanguage and social customs. The Court is not required to conduct anelaborate inquiry into the merits of the case to ascertain the paramountwelfare of the child, leaving such inquiry to the foreign court. However,this Court clarified that:G

“40...In either situation – be it a summary inquiry or an elaborateinquiry – the welfare of the child is of paramount consideration.”

While discussing the powers of the High Court in issuing a writof habeas corpus in relation to the custody of a minor child, this CourtH1 (2017) 8 SCC 454

further observed:

“46… Once again, we may hasten to add that the decision of thecourt, in each case, must depend on the totality of the facts andcircumstances of the case brought before it whilst consideringthe welfare of the child which is of paramount consideration. Theorder of the foreign court must yield to the welfare of the child.Further, the remedy of writ of habeas corpus cannot be used formere enforcement of the directions given by the foreign courtagainst a person within its jurisdiction and convert that jurisdictioninto that of execution court.”

11. In Prateek Gupta vs. Shilpi Gupta[2], this Court clarified thateven if there is a pre-existing order of a foreign court with respect to thecustody of the child, the principles of comity of courts, and “intimatecontact and closest concern” are subservient to the predominantconsideration of the welfare of the child. In that case, the parents andtheir minor child were residing in the US. After the separation of theparents, the father left the US with the child to come to India withoutany prior intimation. A US Court passed an order that the mother has thesole physical and legal custody of the child and declared that the fatherwill not have any visitation rights since he had violated an interim orderof the Court directing him to return with the child to the Commonwealthof Virginia. Thereafter, the mother invoked the writ jurisdiction of theHigh Court of Delhi seeking a remedy of the writ of habeas corpusagainst the father alleging that he has the child in unlawful custody. TheHigh Court observed that the most intimate contact of the parties andthe child was with the US Court, which had the closest concern with thewell- being of the child and directed the father to hand over the custodyto the mother. The decision of the High Court was set aside by thisCourt. While referring to the doctrines of the principle of comity of courts,and of “intimate contact and closest concern”, this Court observed:

“49…Though the principle of comity of court and aforementioneddoctrines qua a foreign court from the territory of which the childis removed are factors which deserve notice in deciding the issueof custody and repatriation of the child, it is no longer res integrathat the ever-overriding determinant would be the welfare andinterest of the child.

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A50. The doctrines of “intimate contact” and “closest concern”are of persuasive relevance, only when the child is uprooted fromits native country and taken to a place to encounter alienenvironment, language, custom, etc. with the portent of mutilativebearing on the process of its overall growth and grooming.”

B12. Where a child has been removed from their native country toIndia, this Court has held that it would be in the best interests of the childto return to their native country if the child has not developed roots inIndia and no harm would be caused to the child on such return. In VRavi Chandran vs. Union of India[3], this Court observed:

C“32. Admittedly, Adithya is an American citizen, born and broughtup in the United States of America. He has spent his initial yearsthere. The natural habitat of Adithya is in the United States ofAmerica. As a matter of fact, keeping in view the welfare andhappiness of the child and in his best interests, the parties haveobtained a series of consent orders concerning his custody/Dparenting rights, maintenance, etc. from the competent courts ofjurisdiction in America.

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35… There is nothing on record which may even suggest that itEwould be harmful for the child to be returned to his native country.

36. It is true that the child Adithya has been India for almost twoyears since he was removed by the mother – Respondent 6 –contrary to the custody orders of the US court passed by theconsent of the parties. It is also true that one of the factors to beFkept in mind in exercise of the summary jurisdiction in the interestof the child is that application for custody/return of the child ismade promptly and quickly after the child has been removed.This is so because any delay may result in the child developingroots in the country to which he has been removed. From thecounter-affidavit that been filed by Respondent 6, it is apparentGthat in the last two years Adhitya did not have education at oneplace. He has moved from one school to another. He was admittedin a school at Dehradun by Respondent 6 but then removed withina few months and the child has been admitted in some school inChennai.

37…In these circumstances, there has been no occasion for thechild developing roots in this country.”

13. The respondent arrived in India with the child in March 2019.The appellant filed for custody and for return of the minor child beforethe Superior Court of New Jersey, Hudson County, Chancery Division-Family Part on 16 April 2019, which awarded him temporary custody on21 May 2019. On 10 July 2019, the appellant filed a petition under Article32 of the Constitution seeking a writ of a habeas corpus before thisCourt. This Court granted the appellant liberty to move the appropriateforum. Thereafter, the appellant filed a habeas corpus petition beforethe High Court of Karnataka on 13 August 2019. The above sequenceof events makes it evident that the appellant has acted promptly to securethe custody of the child. In such an event, this Court is only required toconduct a summary inquiry to ascertain whether there is any harm if thechild 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 ofthe case only if a considerable time has passed since the child has beenremoved and if the child has developed roots in India. In either event,the primary consideration of this Court is to ascertain the welfare of thechild.

14. From this perspective, Mr. Prabhjit Jauhar, learned Counselappearing on behalf of the appellant, has filed a note of submissions,indicating that the appellant has taken an active interest even during thetime when the child was based in the US to ensure that he fully participatesin the daily activities of the child. The appellant has provided in a tabulatedform, instances of having exclusively taken the child either on vacationor otherwise for short periods. The tabular statement is extracted below:

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15. Moreover, it has been stated that the appellant, who is employedas a Vice President with Goldman Sachs in New Jersey on aremuneration of US$ 164,000 per annum, has sufficient time at his disposalto look after the welfare of the child. Mr. Jauhar has also stated beforethe Court that the appellant’s mother would be accompanying him toNew Jersey to provide additional care and support for the welfare of thechild. However, the Court been apprised of the fact that the appellant isready and willing to provide financial assistance to enable the secondrespondent to travel to New Jersey, if she is so inclined and if she doesso, the appellant would make arrangements for her residentialaccommodation and stay, close to the place of the residence of the child.Alternatively, it has been submitted by Mr. Jauhar that if the secondrespondent is not desirous of living in the US, the appellant would beready and willing to abide by such directions as may be issued by theCourt to ensure that the second respondent has continued access to thechild. During the course of the hearing, the Court has been apprised ofthe fact that should the second respondent not be willing to relocate tothe US, the appellant shall:

(i) provide access through video conferencing on Fridays,Saturdays and Sundays to the second respondent for at leasta duration of thirty minutes and even more, should the childand the second respondent so require;

(ii) the appellant would be ready and willing to bear the expensesof the second respondent for travel to the US for a period often days once in a year for the purpose of meeting the child;and

(iii) the appellant would bring the child to India for a period often days on an annual basis when access would be providedto the second respondent.

16. Before we address ourselves to the two conditions, we mustat the outset determine as to whether the arrangement which has beenenvisaged by the High Court in its judgment is in the interest of thewelfare of the child. Though the appellant only challenges the twoconditions, we are still inclined to enquire into this issue having regard tothe parens patriae jurisdiction of this Court. After hearing Mr. PrabhjitJauhar, learned Counsel for the appellant and Ms. Vibha Datta Makhija,Senior Counsel appearing as amicus curiae, we are of the view that the A

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Ainterest and welfare of the child would be subserved by affirming thedirection of the High Court to enable the appellant to take the child withhim to the US. The child was born in the US. Undoubtedly, the child isless than four years of age today. Equally, the Court has borne in mindthe fact that the second respondent has not shown any particular inclinationto retain the child with her in India. The appellant has provided extensiveBdetails of his association with the child and the steps which he has takensince the birth of the child to be associated with the upbringing of thechild. In fact, during the course of the hearing Mr. Jauhar, learned Counselfor the appellant even offered that the appellant would share on thevideo conferencing platform, the videos which the appellant has of hisCassociation with numerous activities of the child.

The Court has come to the conclusion that the welfare of thechild 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. Theappellant has taken the responsibility for shared parenting while the childDwas in the US. The respondent left US shores for a brief sojourn but hasunilaterally resolved not to return. Both the appellant and the respondentare qualified professionals who have been employed in the US and theappellant continues to be employed there. Faced with the departure ofhis spouse and child, the appellant moved the court of jurisdiction inNew Jersey for orders of temporary custody. He has followed theirEtracks to India and invoked judicial remedies here. The child has remainedhere for a short period and it would not be contrary to his interest toallow the appellant to take him back. Hence, independent of the desirecommunicated by the respondent to the amicus curiae that she does notwish to contest the proceedings, the Court has concluded that the directionFof the High Court to allow the child to return to the US is in the interestof his welfare. We have enquired into this aspect though the SpecialLeave Petition by the petitioner is only as regards the conditions forreturn imposed by the High Court. This Court has an overarching dutyto ensure and preserve the welfare of a minor child within its jurisdiction.

G17. The principal challenge in the appeal relates to the twoconditions which have been imposed by the High Court while allowingthe appellant to take the child with him to the US. The conditions whichhave been imposed by the High Court have been assailed on the groundthat they are unenforceable. Condition (a) requires the appellant to obtaina certificate from an officer of the rank of the District Health Officer ofH

Bengaluru certifying that “this country”, that is to say, India is free of theCovid-19 pandemic and it is safe for the minor child to travel to the US.Requiring the appellant to obtain a certificate of this nature that India isfree of the Covid-19 pandemic serves no purpose. In the Special LeavePetition that has been filed before this Court, the appellant has, in fact,tendered an undertaking that it is only if and when the Government ofIndia and the Government of Karnataka lift the lock down and permitinternational travel that the appellant would venture to take the child tothe US. Moreover, it has been stated that the appellant would complywith all prevailing regulations including public health regulations facilitatingthe journey to the US. The second condition which has been imposed inthe judgment of the High Court, similarly requires the appellant to securea certificate from “the concerned medical authority” in the US certifyingthe condition in the US, particularly in the region where the appellant isresiding and of its being congenial for shifting of the residence of theminor child to New Jersey. The appellant has submitted, and withjustification, that it will be impossible to obtain a certificate of this naturein the absence of any particular authority being entrusted with thejurisdiction to issue a certificate of this kind. Moreover, the appellant hasfiled on the record a statement indicating that at present there are onlynine positive cases of Covid-19 in Bayonne, New Jersey where theappellant has his ordinary place of resident. The conditions which wereimposed by the High Court were the consequence of a well-meaningexercise. But that does not render them proper or correct.

18. Before concluding, the Court record its appreciation of theobjective assistance rendered by Ms Vibha Datta Makhija, Senior Counselas amicus curiae.

19. Having thus heard Counsel for the appellant and the amicuscuriae, we are of the view that the conditions which have been imposedby the High Court in clauses (a) and (b) of paragraph 18 of the judgmentand order dated 7 April 2020, do not sub-serve the interests of justice.The conditions shall accordingly stand set aside. We, however, recordthe undertaking of the appellant that in traveling to the US with the child,the appellant shall make all necessary arrangements in accordance withthe prevailing regulations prescribed by the Indian and US governmentsfor international travel between India and the US.

20. We, accordingly, allow the appeal, in terms of the followingdirections:

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A(i)Conditions (a) and (b) in paragraph 18 of the judgment andorder of the High Court dated 7 April 2020, shall stand setaside and condition (c) shall in consequence not be enforced;

(ii) The direction in (i) above is subject to the undertaking of theappellant that the appellant shall comply with the regulationsBin force for facilitating travel between India and the US onthe date of travel;

(iii) In order to ensure the interest and welfare of the child, thefollowing arrangement shall remain in place until modifiedby a court of competent jurisdiction in regard to the custodyCof the child:

(a) In the event that the second respondent desires torelocate to the US, the appellant shall provide for herexpenses for travel and for her lodging and boarding ata place conveniently situated to the residence of theDappellant and the child in New Jersey or at such otherplace where it becomes necessary subsequently; (b) In the event that the second respondent is not desirousof relocating to the US, the following arrangement shallremain in place:

E(i)The appellant shall allow the child to communicate with thesecond respondent on a suitable video conferencing platformon Fridays, Saturdays and Sundays of every week for atleast thirty minutes and beyond it, subject to the mutualconvenience of the mother and the child.

F(ii)Should the second respondent be desirous of traveling to theUS to meet the child, the appellant shall once every year,meet the expenses of the second respondent for travel toand residence in the US close to the place of residence ofthe child for a period not exceeding ten days on each occasion; G(iii)The appellant agrees and undertakes to bring the child toIndia once a year for a period of at least ten days when thechild will have access to the second respondent and the familyat her ordinary place of residence in India; and

(iv) Condition(d) which has been set out in paragraph 18 of theH

judgment and order of the High Court is maintained and thearrangement which has been made above shall abide by suchfinal directions as may be issued by the appropriate court inmatters of custody, access and visitation.

21. The second respondent shall, in compliance with the presentorder, extend all necessary cooperation to implement the terms of theabove order, inter alia, by handing over the passport and other relevantdocuments as required to facilitate the travel and onward journey of thechild with the appellant to the US.

22. The appeal is allowed in the above terms.

23. Pending applications, if any, stand disposed of.

Divya Pandey

Appeal allowed.

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