w w w . L a w y e r S e r v i c e s . i n



Nilanjan Bhattacharya v/s The Station House Officer & Others


Company & Directors' Information:- ON THE HOUSE PRIVATE LIMITED [Active] CIN = U70101WB2000PTC091842

Company & Directors' Information:- C D HOUSE INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC068483

Company & Directors' Information:- H. H. HOUSE PRIVATE LIMITED [Converted to LLP] CIN = U45201DL1981PTC012646

Company & Directors' Information:- M C B HOUSE PRIVATE LIMITED [Active] CIN = U52335DL1999PTC099967

Company & Directors' Information:- A K HOUSE PRIVATE LIMITED [Strike Off] CIN = U70109WB1953PTC021083

Company & Directors' Information:- D N BHATTACHARYA PVT LTD [Strike Off] CIN = U51109WB1946PTC014150

    WPHC. No. 93 of 2019

    Decided On, 07 April 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE S.N. SATYANARAYANA & THE HONOURABLE MR. JUSTICE H.P. SANDESH

    For the Petitioner: Prabhjit Jauhar, C. Shankar Reddy, Advocates. For the Respondents: R1 & R3, S.V. Girikumar, AGA, Puneeth Yadav, R2, J. Deepa, Advocates.



Judgment Text


(Prayer: This WPHC filed under articles 226 of the Constitution of India praying (A) issue a writ of habeas corpus ordering/directing R2 to produce before this court said (son) Adhrit Bhattacharya aged about 2 and half years, date of birth (25.12.2016) and cause return of the said minor child to the jurisdiction of the USA Court in compliance with the order dated 21.05.2019 passed by the superior court of new jersey in docket No.FD-09-001465-19 to enable the minor child to go back to USA and should the R2 fail to do so within a fixed time period, R2 be directed to immediately handover the custody of the minor child Adhrit Bhattacharya aged about 2 and half years date of birth (25.12.2016) to the petitioner to enable HIM to take the minor child back to the jurisdiction of USA Court.)

1. This writ petition seeking writ of Habeas Corpus is filed by the father of minor ward – Adhrit Bhattacharya, aged about 3 years and 4 months.

2. Admittedly, the petitioner – Niranjan Bhattacharya and second respondent – Vinaya Ravindra Nair are husband and wife. They got into wedlock on 30.11.2012 as per Hindu Rites and Rituals and thereafter, got their marriage registered on Aranmula, Herala on 25.2.2013. After the marriage, both moved to US for better prospects, wehre in the wedlock minor ward – Adrtih Bhattacharya was born on 25.12.2016 in Engle Wood, New Jersey (USA). Since the minor ward was born in USA, he is citizen of USA by birth.

3. It is seen that subsequent to the birth of minor ward – Adhrit, the relationship between the petitioner and second respondent was not cordial due to their personal differences. Hence, they started living separately and their houses were near to the house of each other. It is also contended that the child was in custody of petitioner and second respondent and petitioner would state that he was providing financial needs of the child and was also spending considerable amount of time with him in playing, educating, teaching him to sing, and play musical instruments. That there was immense love and affection between him and his son. However, the petitioner would state that the second respondent – wife is not as responsible as he is in taking care of the minor ward and that her act and behavior was detrimental to the health and wellbeing of the child.

4. When the differences between them stood as above and second respondent is said to have travelled to India along with the child and after reaching India took the minor ward to an unknown location and did not have any contact with the petitioner for 2 days and thereafter informed him that she has no plans to return to USA and would keep the child with herself. She would also state that she has secured a job for herself in Bengaluru. The petitioner would state that he was not confident of the mental health of second respondent – wife, hence he was worried about the safety and wellbeing of the child. Thereafter, he also came to Bengaluru on 28.3.2019 and immediately contacted the second respondent and requested her to allow him to meet the child and also tried for amicable solution in the interest of the child. He would also state second respondent refused to allow the petitioner to meet the child for nearly two weeks. It is only after two weeks the child was brought to Phoenix Mall, Bengaluru on 13/4 and 14/4 and 15/4 of 2019 enable to petitioner the petitioner to meet the child.

5. In the said meeting, the petitioner requested his wife – second respondent to allow him to take the child to USA as the said child is citizen of USA and in the meanwhile, also to permit the petitioner to take the child to his parents and siblings. It is in this background he would state that, on 15.4.2019 he took the child to his sister’s house with the knowledge of his wife with a clear understanding that he will bring back the child within two days. He would state that inspite of the second respondent having full knowledge that the child is taken by the petitioner with her consent she is said to have filed FIR against him on the pretext that he has abducted the minor ward – Adhrit from Phoenix Mall. He would state that subsequently, he came back with the child as informed and handed over the child to the second respondent in the Police Station where he would state that his wife admitted having knowledge of the child going with the petitioner. Thereafter, eh would state that after reaching USA he has filed a police report with Jersey City Police Department, New Jersey (USA) against the second respondent alleging that there is interference with his custody of minor ward – Adhrit before the Superior Court of New Jersey, where he secured an order on 25.2.2019, which would observe that Master Adhrit is a resident of New Jersey and citizen of USA.

6. The said Court would conclude that petitioner herein has legal and temporary custody of the child in the said proceedings. It is contended that though there was service of notice to second respondent herein she did not appear before the Superior Court of New Jersey. It is in this background the said Court directed that the child shall immediately return to USA with the petitioner. It is thereafter, he would state that he filed writ of Habeas Corpus before the Hon’ble Supreme Court directly. However, it is stated that subsequently, he withdraw the said writ petition pursuant to order passed by the Apex Court on 2.8.2019 in granting leave to him to withdraw the writ petition with liberty to move the appropriate forum for custody if so advised. It is in this background he states that the said petition was withdrawn by him and thereafter he has come to Bengaluru and has filed the present writ petition before this Court since the child residing in the custody of second respondent within the jurisdiction of this Court.

7. In this petition he would contend that his minor son – Adhrit is not a permanent resident of India but is a citizen of USA by birth and resided in USA until he was brought to India in the month of March 2019. That his wife did not bring the child back to USA where the child belongs to. It is in this background eh would state that he has approached the Court of law of USA and has secured legal and temporary custody of the minor ward vide order of the Superior Court of New Jersey dated 21.5.2019 in directing that the minor ward – Adhrit shall return to USA.

8. The grievance of the petitioner is that though the said order was communicated to second respondent, she did not bother to accept the same and act accordingly. Hence, the petitioner being left with no other option approached the Hon’ble Supreme Court by filing a writ petition seeking writ of Habeas Corpus on 10.7.2019. The said writ petition was subsequently withdrawn with leave to move the appropriate forum for custody, if so advised. It is thereafter, the present writ petition is filed for the relief of writ of Habeas Corpus in directing the second respondent his wife to produce before this Court heir minor son Adhrit Bhattacharya and return him to the custody of the petitioner in compliance to the order dated 21.5.2019 passed by the Superior Court of New Jersey, USA, in Docket No.FD-09-001465-19 to enable the minor child to travel back to USA and for other consequential reliefs.

9. On service of notice, the second respondent has entered appearance, has filed detailed objections, where her grievance is that the child is attached to the mother and she cannot give up the custody of the child to the petitioner on various grounds. To sum up, her grievance is that the petitioner was not taking care of the minor child even when the child was in USA it lived in USA all along with the second respondent, the child used to visit the petitioner occasionally, that he was not taking good care of the child, the child is attached to the second respondent, her parents and others and that there are large number of family members who are there to take care of the interest of the child. Therefore, in the best interest of the child, it should be allowed to continue in India along with second respondent. She would also try to impress upon this Court that she is capable of taking care of the child not only financially but also by providing love, affection, care and protection which is required for its upbringing.

10. It is also the grievance of the respondent – wife that, if the child is forcibly sent to USA< it will have to face tough time, inasmuch as the petitioner is alone at USA and there are no other near relatives to the child to take care of it besides the petitioner. The child which has been brought up in the midst of grandparents, large number of near and dear relatives, it will lose their company and will be a loner without proper care and affection being shown to it. It is also stated that even though the intention of the petitioner is to provide a better atmosphere for the child’s wellbeing in USA, the same cannot be achieved by him since he is staying all alone bereft of any support by other members of his family. Therefore, she would try to impress upon this Court that it would be in the best interest of the child that it should be allowed to continue to reside along with her at Bengaluru and the order of the New Jersey Court being an ex parte order should not be given effect to.

11. With the aforesaid respective pleadings, the parties herein try to rely upon the following judgments rendered by the Apex Court. In fact, the judgments which are relied upon by both the parties are almost common judgments.

12. The judgments cited by the learned counsel for the petitioner – husband are as under:-

a) Nithya Anand Raghavan –vs- State (NCT of DELHI and another, reported in (2017) 8 SCC 54;

b) Dr. V. Ravi Chandran –vs- Union of India, reported in (2010) 1 SCC 174;

c) Surya Vadanan –vs- State of Tamil Nadu & Ors., reported in (2015) 5 SCC 450;

d) ‘Arathi Bandi v. Bandi Jagadrakshaka Rao & Others’, reported in 2013 [15] SCC 790.

e) ‘Shikpa Aggarwal v. Aviral Mittal, reported in [2010] 1 SCC 591;

f) ‘Aviral Mittal v. State’, reported in [2009] 112 DRJ 635;

g) ‘Elizabeth Dinshaw v. Arvand M. Dinshaw & Another’, reported in [1987] 1SCC 42;

h) ‘Surinder Kaur Sandu v. Harbax Singh Sandhu & Another’, reported in 919840 3 SCC 698;

i) ‘Sondur Gopal v. Sondur Rajini’ reported in [2013] 7 SCC 426;

j) ‘Paul Mohinder Gahun v. Selina Gahun’, reporte din 2006 [130] DLT 524;

k) ‘Jeewanti Pandey v. Kishan Chandra Pandey’, reported in 1981 [4] SCC 517;

l) ‘Varun Verma v. State of Rajasthan’ in DB Habeas Corpus petition No.229/2018 decided on 1.7.2019;

m) ‘Lahari Sakhamuri v Sobhan Kodali’ in C.A. No.3135-316/2019 decided on 15.03.2019.

n) ‘Yashita Sahu v. State of Rajasthan & Others’, reported in (2020) SCC Online SC 50.

13. The judgemnnts cited by the learned counsel for respondent – wife are as under:-

a) ‘Nithya Anand Radhavan v. State [NCT of Delhi] and Another’ reported in {2017] 8 SCC 454

b) ‘Prateek Gupta v. Shilpi Gupta and Others’ reported in [2018] 2 SCC 309

c) ‘Kanika Goel v. State of Delhi Through Station House Officer and Another’ [2018] 9 SCC 578

14. Heard the learned counsel for both the parties. Perused the pleadings and as well as the judgments cited by both the parties. On going through all of them, what is generally seen is that though several observations are made by the Apex Court depending upon the facts of each case, the underlined fact is that in all the judgments the finding of the Apex Court is one and the same as observed by the Apex Court in its latest judgment in the matter of Yashita Sahu referred to supra, wherein, at paragraph 32, the Apex Court has held as under:

“32. In view of the above discussion, we are clearly of the view that it is in the best interest of the child to have parental care of both the parents, if not joint then at lease separate. We are clearly of the view that if the wife is willing to go back to USA then all orders with regard to custody, maintenance etc., must be looked into by the jurisdictional court in USA. A writ court in India cannot, in proceedings like this direct that an adult spouse should go to America. We are, therefore, issuing directions in two parts. The first part will apply if the appellant-wife is willing to go to USA on terms and conditions offered by the husband in his affidavit. The second part would apply if she is not willing to go to USA, how should the husband be granted custody of the child”.

15. On appreciation of the pleadings as well as the judgments relied upon by the learned counsel appearing for both the parties, it is noticed that similar grounds which are urged by several citizens situated in similar circumstances having been dealt by the Hon’ble Apex Court in the matters referred to supra, has rendered its findings on facts in each case and in some of them supporting the view taken by the wife and in others the grounds urged by the husband with reference to custody of minor child. In any event, after analysis of the facts in each of the case, the ultimate result in all the matters referred to supra is that the Indian Courts do not have jurisdiction to interfere with the order/judgment rendered by the Foreign Courts, particularly with reference to custody of the minor children, who are natural citizens of United States of America (USA) and other countries. Therefore, instead of discussing all the judgments referred to supra, it would suffice to look into the latest judgment rendered by the Apex Court in the matter of Yashta Sahu referred to supra, wherein the Division Bench of the Apex Court, after considering all the earlier judgments, at paragraphs 10 and 11 has held as under:

“11. We need not refer to all decisions in this regard but it would be opposite to refer to the following observations from the judgment in Nithya Anand Raghavan (supra), reported in (2017) 8 SCC 454.-

“46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, 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 an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.

47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person 9private Respondent named in the writ petition)……”

12. Further, in the case of Kanika Goel v. State of Delhi [2018] 9 SCC 578, it was held as follows:

“34. As expounded in the recent decisions of this Court, the issue ought not to be decided on the basis of rights of the parties claiming custody of the minor child but the focus should constantly remain on whether the factum of best interest of the minor child is to return to the native country or otherwise. The fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but not decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the nature country and taken to a place to encounter alien environment, language, custom, etc interfering with his/her overall growth and grooming and whether continuance there will be harmful…..”

16. With this, in the instant case also , we conclude that, this Court cannot sit over the order/judgment of custody granted in favour of the petitioner by Court of New Jersey. Therefore, in the aforesaid context, this writ petition is required to be allowed. However, in the peculiar facts and prevailing circumstances of COVID-19 pandemic being spread all over the world, this Court is of the opinion that the delivery of custody of minor child to the petitioner herein shall be subject to certain conditions.

17. Admittedly, the minor child is aged about 3 years 4 months, which is tender age and besides that, undoubtedly is a citizen of USA. The said country is also hard hit by the impact of COVID-19 pandemic which is stated to be severe on children below the age of 10 and on adults who are aged 60 and above as could be seen from the reports

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about the said disease. 18. Under the circumstances, this writ petition is allowed holding that the minor child – Master Adhrit Bhattacharya is required to be repatriated to USA in compliance of the order of New Jersey Court. However, the repatriation shall not be made until normalcy is restored with reference to health scenario in USA in the aftermath of COVID-19 pandemic. Therefore, we would observe as under: (a) That the minor child 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 minor child to USA; (b) Simultaneously the petitioner herein shall also secure a certificate from the concerned Medical Authority at USA in certifying that the condition in USA, particularly in the region where the petitioner is residing is congenial for shifting the residence of minor child – Master Adhrit Bhattacharya in compliance of the order passed by the Court of New Jersey; (c) On production of such documents, the authorities concerned are directed to permit repatriation of the minor child – Master Adhrit Bhattacharya from Bengaluru, India to USA; (d) While doing so, it is also observed that in the event if the respondent – wife is reconsidering her decision in relocating herself to USA and settle there in the interest of the minor child, all liberties are reserved to her to take the child along with her subject to securing the certificate as referred to supra and on reaching USA to approach the competent court which has passed the interim order of custody of minor child to the petitioner and also for modification of the same by explaining the circumstances under which she is staking her claim for the custody of the child; Accordingly, this writ petition is allowed subject to aforesaid conditions.
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22-07-2019 K. Devamani &amp; Others Versus The State Represented by The Station House Officer, Thirunallar Police Station &amp; Others High Court of Judicature at Madras
12-07-2019 Rajendran Pillai &amp; Others Versus state represented by the station house officer, kunnicode police station, Kollam, through the public prosecutor, high court of kerala, ernakulam &amp; Another High Court of Kerala
12-07-2019 Mankind Pharma Limited V/S Lee Pharmaceuticals of Lee House High Court of Delhi
04-07-2019 Gopalacharya Gautam Versus Chief Editor Himachal Dastak Media House &amp; Others West Bengal State Consumer Disputes Redressal Commission Kolkata
24-06-2019 S. Krishnalal Versus State of Karnataka, Through Station House Officer, Anti-Corruption Bureau, Bengaluru High Court of Karnataka
14-06-2019 Subrata Bhattacharya Versus Biswanath Chatterjee &amp; Others West Bengal State Consumer Disputes Redressal Commission Kolkata
06-06-2019 C.K. Lekhamol Versus State of Kerala, Through The Station House Officer, Ernakulam Town North Police Station, Represented by The Public Prosecutor, High Court of Kerala, Ernakulam &amp; Another High Court of Kerala
31-05-2019 Aparna Bhattacharya Versus NCT of Delhi &amp; Others High Court of Delhi
29-05-2019 Popular Auto Spares Kallarkutty, Rep.by the Managing Partner, Joy.P.U, Pallickal House, Adimali Versus The Branch Manager, State Bank of India, Adimali.P.O. Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
14-05-2019 Punjab State Federation of Cooperative House Building Societies Ltd. &amp; Another Versus Chander Pal Tyagi National Consumer Disputes Redressal Commission NCDRC
10-05-2019 Chairman &amp; Dgof, Ordnance Factory Board &amp; Another Versus Cable Tech Machines, CTM House &amp; Another High Court of Punjab and Haryana
03-05-2019 The Sub Divisional Engineer, Telephone Exchange, BSNL, Thanoor, Malappuram &amp; Others Versus Saidu, C.P, Chithrampalli House, Thanoor, Malappuram Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
26-04-2019 Irfan Pasha Versus The State of Karnataka, Rep. by the Station House Officer High Court of Karnataka
25-04-2019 Nanjundaiah Versus The State of Karnataka Rept. by its Station House Officer High Court of Karnataka
24-04-2019 B.S. Kamalaksha Versus The State - Through the Station House Officer, Represented by the State Public Prosecutor High Court of Karnataka
24-04-2019 Madasamy &amp; Others Versus Krishnagiri LIG House Owner's Association, Krishnagiri &amp; Another High Court of Judicature at Madras
23-04-2019 Abey Josephaged &amp; Another Versus The Station House Officer &amp; Another High Court of Judicature at Madras
16-04-2019 Aditya Prasanna Bhattacharya Versus Union of India &amp; Others Supreme Court of India
16-04-2019 Nisha Singla Versus Adarsh Colony Cooperative House Building Society Ltd. &amp; Others Supreme Court of India
16-04-2019 Bata India Limited Versus Chawla Boot House &amp; Another High Court of Delhi
10-04-2019 Prabhu Versus The State of Karnataka, Rep. by the Station House Officer High Court of Karnataka
10-04-2019 C.K. Chengappa Versus The State, Represented by the Station House Officer High Court of Karnataka
10-04-2019 Bhattacharya Orthopaedics and Related Research Centre Pvt. Ltd., rep. by its Director, Indrajit Bhattacharjee Versus Dipannita Sikdar &amp; Others West Bengal State Consumer Disputes Redressal Commission Kolkata
09-04-2019 The Kavanoor Service Co-operative Bank Ltd., Kavanoor, Malappuram, represented by its Secretary Versus Anchukanda Muhammed Shereef, Nerooke House, Ariyam Para, Vadakkummuri, Areacode, Malappuram Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
09-04-2019 Palakom Abdul Rahiman Versus The Station House Officer Badiadka Police Station, Kerala &amp; Another Supreme Court of India
05-04-2019 Tejram Nagrachi Juvenile, Chhattisgarh &amp; Another Versus State of Chhattisgarh Through The Station House Officer, Police Station Bhakhara High Court of Chhattisgarh