Mrs. Jacqueline Kapoor, a German National, living Dusseldort in the Federal Republic of Germany since her birth and mother of female minor, Navdeep Kapoor, seeks custody of the child from respondent-Surinder Pal Kapoor, her divorced husband and father of Navdeep Kapoor, obviously an off-spring of the parties to the. legation, who was born during the currency of their marriage, through present petition, filed by her under Arts. 21 and 226 of the Constitution of India with the aid of Ss. 12 and 25 of the Guardians and Wards Act, 1890 and Ss. 13 and 14 of the Code of Civil Procedure, The question that requires adjudication is, thus, as to whether Navdeep Kapoor (hereinafter to be referred to as minor child) should remain under the care and custody of her mother or that the father, who is also natural guardian of the minor, should continue to bring her up, who is so doing for the last about eight months. As a necessary corollary to the question aforesaid, determination of paramount interest of the child to remain with the mother or Father, is necessarily tagged up. Under the facts' to be narrated in the preceding paragraphs, it shall also have to be determined, as. to whether the judgment given by the Foreign Court is binding in the Courts in India. ,
2. Mrs. Jacqueline Kapoor (hereinafter to be referred to as petitioner) is admittedly a German national citizen living in Dusseldorf in the Federal Republic of Germany since her birth and is the mother of female minor child who is less than nine years old. Surinder Pal Kapoor (hereinafter to be referred to as respondent) is an Indian national and father of minor child. The parties herein married at Sirsa in the State of Haryana in India on January 4, 1984 under Hindu rites. Thereafter both of them left for Federal Republic of Germany and were domiciled as residents of Dusseldorf Germany where they made their matrimonial home. From this marriage, minor child Navdeep Kapoor was born on August 28, 1985 in Dusseldorf, Germany. She was ever since living and brought up there. It is the case of petitioner that minor child only speaks, writes and understands German Language. She has been studying in Stad-tische Gemein Schaftsgrud Shule, Am Rather Kreuz weg, Dusseldorf, Germany. To the misforture of this minor child, the relations between the parties became strained constraining the petitioner to file a petition for divorce at Dusseldorf, Germany, on December 4, 1989. Obviously, ever since they are living separately. However, minor child is stated to be always in care and custody of petitioner. The marriage between the parties was dissolved by order dated March 5, 1993 by the Family Court at Dusseldorf, Germany. The order dealing with the child clearly recites that she was to be given to mother whereas respondent-father would have right of personal contact with her. He was allowed to meet the minor child every second week end and on other holidays. A copy of the orders, referred to above, duly authenticated by the Indian Embassy in Bonn, Germany, along with its English (ranslation certified by the Embassy of the Federal Republic of Germany. New Delhi, India, has been placed on records of this case. Being aggrieved, respondent preferred an appeal against the orders, referred to above, and the matter then came to be decided by the Higher Regional Court at Dusseldorff, Germany, in case Ref. No. 2UF 67/93. Finding no merit in the appeal of the respondent, the same was dismissed by Hon'ble Judges Mr. Ewers, Mr. Paop and Mr. Funke. This Order was passed on June 30, 1993 upholding the grant of custody of the minor child to petitioner giving reasons therein. A copy of this order as well certified by the Indian Embassy in Bonn, Germany, along with its true English translation certified by the Embassy of the Federal Republic of Germany, New Delhi, India, has been placed on records of this case. It is clear from the reading of the judgment that besides other things, an Expert opinion of Psychologist was also taken into consideration. According to the report of the Psychologist, it was found to be most important that the minor child should live with her mother. It was observed that according to the report it was most important for Navdeep Kapoor that her living conditions, which since the time of first expert report a year ago have stabilised themselves more and more leading to her regaining more balance, continue to remain constant and without change. That being so, it was further observed that sole guideline for the decision being the child's welfare, there was no occasion or necessity for any such change and there were no clues that the education and caring for the child through the petitioner would be of lesser quality than in the past. It was also observed that the Expert had stated that he found no signs of disturbances in the petitioner's personality which would question her capability to educate. While dealing with the partner of petitioner, it was observed that there were no signs that he would in any way harm the child's well being. As per the statement of her partner after an initial reservedness on both sides, a constantly improving and open relationship had developed between him and Navdeep and that they had nowadays happy and good understanding. Navdeep had not ever complained about his smoking an drinking. The operative part of the order reads thus :--
the Senate, considers the statement of the witness as credible in the light of his personality and of the manner and contents of his statements. This also corresponds with the opinion about the, witness of the expert Heinzel. The statement of, the witness Komani, the defendant's partner, has not disclosed anything to [he contrary. She has declared that Navdeep told her she did not like the witness De Labra, because he sometimes drinks and smokes. From such a remark of the child, in particular given to the partner of the other parents, and considering the child's situation between the two parent, no serious clue can be made that the relation between the petitioner and the witness De Labra'has a harmful effect on the child's well being.'
3. It is apparent from the narration of the admitted facts that respondent did not take the orders of the Family Court at Dusseldorf, Germany as also the Higher Regional Court at Dusseidorf, Germany, sportingly and even though the said orders had attained finality, in defiance thereof when he visited the minor child on August I, 1993 as permitted by the Family Court, he requested for handing over the passport of 'minor to him with a view to take the child for a holiday to U.K. for three Weeks, with an obvious intention not to return the child. When the child did not return after three weeks, for which respondent had taken permission, petitioner became very frantic and panicked resulting into reporting against respondent to the Police for his having abducted the minor child. This report was lodged on August 22, 1993 with the Polizeiprasidum Am Jurgensplatz, Dusseldorf. Petitioner thereafter made frantic efforts to locate the minor child through her friends and relatives at various places. She also sent information to the German Embassy in New Delhi in India for them to try and locate the whereabouts of respondent as also the minor child. Her such efforts brought tangible results when she was informed by the German, Embassy that the respondent and minor child were living in Ambala City, Haryana, in India. Petitioner without loss of any further time filed the present petition in this Court for the relief indicated in the earlier part of this judgment on January 12, 1994.
4. The petition being urgent in nature was taken up for heaping on the very day it was filed. Rule nisi was issued. It was to be served through the Warrant Officer to be appointed by the Registry. The Warrant Officer was to search for the minor Navdeep Kapoor and it was directed that respondent shall attend the Court on the date of hearing in person or shall file his reply, if any, with regard to the claim made in ihe petition. The matter was postponed to January 17, 1994 by which time petitioner reached India. However, the matter was adjourned to January 20, 1994 enabling respondent to file reply with an advance copy to the counsel opppsitc. On January 20, 1994, reply was filed and the matter was ordered to be listed for hearing on January 21, 1994. It was directed that the minor child shall be produced in Court by respondent. Unfor-tunately, however, respondent did hot attend the Court on January 21, 1994 and as per the statemem made by his counsel, Shri H. L. Sibal, Senior Advocate, after filing written statement, he went away and did riot contact the lawyer by the date and time case was called. Mr. Sibal, in the aforesaid circumstances, was left with no choice but to plead no instructions from respondent, faced with the situation, as has been noticed above, the Court once again appointed Warrant Officer, who was to go and search for the minor and have her produce personally, if necessary, with police help in Court on January 24, 1994 at 10 a.m. The Warrant Officer so deputed did not find either respondent or the minor child at Ambala and rather found that respondent along with child had shifted elsewhere and his whereabouts were not known. The Court then directed the Senior Superintendent of Police, Ambala, to post suitable officer to traceout the respondent, who last resided at Arnbala. Non-bailable warrants for the purpose were issued and copy of order was sent to the Senior Superintendent of Police, Ambala. Warrant was returnable with necessary report by January 28, 1994. When the steps, referred to above, did not yield any results, roving search warrant was ordered to be issued which was to be taken by the Warrant Officer to search the detenu i.e. the minor child and produce her in Court in person on or before February 16, 1994. For implementing the orders, D.C.P. (CID) and D.C.P. (Crime), Delhi, were directed to render necessary assistance. Even this coercive method adopted by the Court proved abortive and on February 16. 1994. when the mailer came up before H. S. Bedi. J., who, keeping in view the background of the matter, directed the Deputy Inspector General of Police, Ambala Range. Haryana as also the Commissioner of Police, Delhi, to ensure that due investigation was made in the matter and respoadent produced in Court along with the minor child on March 11, 1994. The Foreign Regional Registration Officer was also directed so as not to permit either respondent or the minor Navdeep to leave India till further orders from the Court, It is on the adjourned date i.e. March 24, 1994, that this matter came up before me. After noticing that respondent was a son of retired Deputy Superintendent of Police and the police for that reason was not proving very effective, I issued directions to the Superintendent of Police (Central Bureau of Investigation), Chandigarh to trace respondent and minor child wherever they might be in the country by deputing special teams to the places where the respondent and minor were likely to be. Non-bailable warrants were also ordered to be issued against respondent and it was ordered that he would be produced in Court on April 5, 1994. The Commissioner of Police. Delhi, was also directed to give report as contained in order dated February 16, 1994. When even this effort of the Court brought no tangible results, vide order dated April 8, 1994, 1 ordered the passports of respondent and minor child to be impounded and copy of order was directed to be sent to the Foreign Regional Registration Officer, Hans Bhawan, New Delhi, which office was asked to send information of the orders passed by this Court along with their photographs to he supplied by petitioner to the authorities concerned of all Air Ports in the country. On the request of Mr. Handa, learned counsel reprenting the C.B.I., permission was granted to register a case against the respondent and it was ordered that the Home Secretary, Har-yana and Commissioner of Police, Delhi, would render all help to the CBI. The case was adjourned to May 20, 1994.
5. The Central Bureau of Investigation, it is apparent, proved effective in the job entrusted to it and before the date fixed i.e. on May 8, 1994, an application was put up al my house, May 8, 1994 being holiday, for passing appropriate orders on production of Surinder Pal Kapoor-respondent herein and the minor child. Navdeep Kapoor. I directed the C.B.I. to produce both of them in Court on the next day i.e. May9, 1994. The hearing of the case was preponed in the circumstance referred to above,
6. With the impressive array of facts, as have been noticed above, the obvious contention and consequently prayer of the learned counsel representing the petitioner is to hand over the minor child in care and custody of petitioner-mother, father-respondent being in illegal custody of the minor and in complete defiance of various orders passed in Germany by Family Court and Regional Higher Court.
7. The respondent admits the basic facts, as have been quoted above and, in particular, his marriage with the petitioner, birth of the minor child, his strained relations with petitioner culminating into divorce as also the decisions of the Family and Appellate Court in Germany ordering custody of the minor child to the petitioner-mother. He, however, still endeavoured to contest the cause of petitioner, which in the beginning i.e. when the written statement was filed, was vociferous but pelted into almost mercy petition for continuing to look after the child in India or elsewhere but under his supervision and not to hand over the minor child to petitioner-mother. He pleads that when petitioner came in his contract, they fell in love with each other resulting into their marriage. The petitioner had put a condition that the marriage would be celebrated according to Hindu rites and, therefore, they came to India and married each other at Sirsa. Petitioner, however, had left her parents home without informing them of her departure for India as she was very much frustrated and wanted to escape from drudgery and tense atmosphere of her parents home which always created tension in her mind. It is so pleaded in the hackground that petitioner was quite young when her parents divorced each other. Her mother began to live with another man for a couple of years and ultimately married him. She was only thirteen years of age at that time. However, after the parties to this litigation married, they went to Germany and Dusseldorf Government provided them shelter and maintenance allowance being unemployed. Thereafter, respondent started some business and within a short period, he established himself very welt. He began running a shop in the name of Navdeep Collections. He was dealing in Textiles and his business flourished very well. After sometime, he found that his daughter was not being brought up according to the notions which he had in his mind. He wanted his daughter to be brought up in good atmosphere and not to lake to drinking or smoking and that she should be a girl of good character. Since he was an Indian and Sikh, he had certain notions of his own religion which he wanted to inculcate in his child even though he had settled in Germany. It is for this reason that he married with the petitioner according to Hindu riles at Sirsa. Her name was then changed to Jai Kaur. After a couple of years of birth of Navdeep, he tried to psychologically train her mind so that she should have some religious inclinations. He always tried to tell her when she was about 3 to 4 years of age that she should always offer prayer in the morning. The prayer in substance which was repeated to her early in the morning in the small temple set up in his own house was that 'God may give her the strength, she should not drink and smoke.' His invocation was of an usual Sikh religion man. For example, in the morning she was told to recite 'Ek Onkar Satnam Wahe Guru Ji' and so on. Respondent further pleads that this training to the child was vehemently opposed by the petitioner. She began to fight againsl him on these very issues as she wanted to bring up the minor child in a purely German way as she felt herself. The strained relations between them became more and more intense on small matters which the petitioner would not tolerate. There is no necessity to burden this order with all kind of details as the learned counsel at the time of arguments did not mention anything whatsoever justifying the stand of respondent in bringing the child to India in defiance of the orders, referred to above. However, there are details given in the written statement of the reasons culminating into bringing the child to India. Petitioner has, however, refuted the allegations made against her in the written statement by way of filing replication.
8. Dealing with the second question posed above first i.e. the binding nature of the foreign judgments, we have in our law i.e. the law established in India, provisions dealing with the foreign judgments in Ss. 13 and 14 of the Code of Civil Procedure. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between the parties under whom they or any of them claim litigating under the same title except :-- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of (India) in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud and (f) where it sustains a claim founded on a breach of any law in force in (India). Inasmuch none of the exceptions detracting from the binding nature of the foreign judgments has either been pleaded or remotely sought to be proved, there is no choice with this Court but for to hold that, in the facts and circumstances of this case, judgments given by Family Court on March 5, 1993 and Higher Regional Court, Dusseldorf, Germany, on June 30, 1993 are binding upon the respondent.
9. Coming now to the precedents dealing with the issue and so cited by learned counsel for the parties, reference can conveniently be made to the decision of Supreme Court in Mrs. Elzabeth Dinshaw v. Arvand M. Dinshaw, AIR 1987 SC 3, expressly approving the view of Willmer, LJ in Re. H (Infants) (1966) 1 All ER 886, which reads as follows (at P-6) :--
'The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all Courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by this wrongdoing.'
Single Bench of this Court in Marilynn Anita Dhillon Gilmore v. Margaret Najjar. ILR (1984) 1, Punj and Har 1 : (AIR 1983 NOC 217), had observed thus :--
'Courts all over the world frown on the attitude of parents running away from their legal obligations. The prevailing view in Private International Law is that the Courts all over the world, should other thing being equal, set its pace against the conduct of unilateral movement of children and they should be careful not to do anything to encourage this tendency. The predominant view also is that a Judge should pay regard to the orders of the proper Foreign Court unless he is satisfied beyond reasonable doubt that to do so, would inflict serious harm on the child.....'
Again, the Supreme Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu, AIR 1984 SC 1224, observed that 'the modern theory of conflict of laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstances as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping.' Another single Bench of this Court in Mrs. Kuldeep Sidhu v. Chanan Singh, AIR 1989 Punj & Har 103, in almost identical facts, as are available in this case, observed that 'such thus being the settled position in law, the order passed by the Supreme Court of Ontario on November 21, 1986 granting interim custody to the petitioner Mrs. Kuldeep Sidhu deserves due regard and there are no circumstances brought out in this case to justify it not being complied with.' It requires to be mentioned that in Kuldeep Sidhu's case (supra), learned Judge relied on the observations given in Elzabeth Dinshaw (AIR 1987 SC 3) and Marilynn Anita Dhillon's cases (supra). The facts of the case aforesaid reveal that petitioner Kuldeep Sidhu and, her husband Gurbachan Singh were married in India in 1975 and were thereafter living in Canada. Navreet Sidhu, their son was born in 1978 and their daughter Preeti Sidhu was born in 1981. Sometime in 1984. the petitioner's husband Gurbachan Singh brought his son Navreel Sidhu to India and left him at his father's house in Jagraon (Punjab). About a year and half later, he brought his daughter to India too and left her here. Both the children were admitted in a nearby school and had been studying there since then. Towards the end of 1986, their father Gurbachan Singh came and took them back to Canada. The relations between the huband and wife became strained and they started living apart. Petitioner then approached the Court and obtained an order on November 21, 1986 from the Supreme Court of Ontario granting her interim custody of the children. This order also restrained the father from removing the children from the Province of Ontario. However, husband-Gurbachan Singh, on that very day, came away from Canada with the children and brought them to his father's house in Jagraon and that is where they had been ever since. It is in the aforesaid circumstances that Smt. Kuldeep Sidhu filed a criminal writ petition in this Court in which she succeeded.
10. Having dealt with the binding nature of the foreign judgment, there hardly arises any question for determining the first question posed above but since that question is necessarily embedded in every such petition, the same has to be touched, even though not in great details. The observations of the Family and Appellate Court in Dusseldorf, Germany do clearly reveal that all relevant matters that tend to prove the paramount interest of the child, were duly considered. The birth of child in Germany, her living there for about eight years, her knowing German language, her education in the school and upbringing by the mother and father both, were discussed. Opinion of an Expert was also taken in the matter. On the date when the orders aforesaid were passed it could not even remotely be urged by the respondent or the counsel representing him that the interests of the minor were not properly safeguarded by the mother. All that is now being said is that the minor child has since been with the father for about 8-9 months and, therefore, during this period she has not only acquainted herself With the conditions prevailing in India but has emotionally come to like the same. During this period, it is further stated, the child was developed vivid disliking for her mother and, therefore, it would be unsafe to hand over the child-to the mother at this stage. I am not at all impressed with any of the plea noticed above.
11. Before I proceed any further in the matter, I would like to mention that when the Child was produced at my house on May 8, 1994, I had an occasion to talk to her for nearly half an hour. It is no doubt true that her initial reaction was belligerent and every second sentence that she would utter was that She would not like to go with the mother and Would rather prefer to live with the father. However, on bringing her round to probe the possibility of living her with mother, she did not detest the idea of first living with the mother for few days and later even for more time. From her talks, T could clearly gather that during this 8-9 months' period, she has been tuitored but careful and searching examination of the child, although duration of which was quite short, convinced the Court that she had no disliking for her mother and in fact was stating against her only being told to do so on account of atmosphere created in India and her brain washing in the matter. 1 Sad also an occasion to talk to petitioner in my chamber along with the child as also sepa-lately. I also had an occasion to talk to respondent separately as also with the child. When the minor was in my chamber with the mother, on the crying of the latter when the child was in her lap, she appeared to have great emotional effect resulting into the minor responding very affectionately to mother. The talk that T had with the parties in the aforesaid manner in my chamber further convinced me that the child has been tuitored all this while to state against her mother but it is only a matter of few days when she will completely adjust herself and would have no complaint in the matter whatsoever. From my talks with respondent-father, I am equally convinced that he too is very much interested in her welfare and is emotionally attached to her. It is true that he, at every given stage of the case, has defied the Court orders by first bringing the child to India in the teeth of the orders passed by the Germany Court and then not appearing in this Court after filing written statement but all this was done by him to secure exclusive custody of the minor. This defiant attitude of his, even though needs severest condemnation and cannot be pardoned but it is equally true that he did it even though at the risk of being punished (sic) actuated on account of his complete love and affection for the child. It requires to be mentioned here that even though in a case of this kind the petitioner could ask for punishment of respondent and fat damages and if perhaps she had adopted this course, the Court would have been inclined to do so but convinced in her mind that respondent had great love and affection for the minor child, it was not even remotely suggested that res-pondent should be punished or asked to pay the damages. On the contrary it was candidly admitted and in fact undertaken by the petitioner that she would withdraw the complaint filed by her in Germany and so much so that the respondent would be permitted to meet the child in the way and manner suggested and so ordered by the Germany Courts.
12. Learned counsel representing the petitioner has placed On records true translation of Ss. 77(1), 77d(1), 235(1) and 238(1) of STRAFGESFTZBUCH (The German Penal Code). Unless otherwise indicated in the Code, if a complaint is to be made, it can be made by the person aggrieved and in view of provisions contained in S. 77d, the com-plaint can be withdrawn and such withdrawal can (sic) place at any stage as long as the criminal proceedings have not come to a valid end. However. the complaint once withdrawn cannot be reinstituled. It is in view of this section i.e. 77d that it is undertaken by learned counsel appearing for the petitioner that the complaint shall be withdrawn. However, all that is sought to be assured is that alter withdrawal of the complaint, if respondent indulges in repeating what he has done earlier, i.e. subject-matter of complaint in the present case, it shall always be open for the petitioner to proceed against respondent afresh. The undertaking given by the learned counsel in the manner indicated above is accepted. It requires to be mentioned here that it is not only the offer so made by the petitioner that guides the Court to permit withdrawal of the complaint but it is more for the reason that if this course is not adopted, in all probability, respondent, moment he lands in Germany, shall be arrested, prosecuted and perhaps in all probability convicted. The Court may not have any sympathy with the respondent hut the paramount interest of the child leaves this Court with no choice whatsoever but for to accept the suggestion, offer or undertaking of the petitioner for withdrawing the complaint pending against respondent in Germany. This course alone can ensure continued love and affection of respondent with the child, which, at the age the child i.s, Court thinks, is utmost necessary.
13. Learned counsel appearing on behalf of respondent, on the basis of decision rendered in Marilynn Anita Dhillon Gilmore v. Margret Nijjar, 1983 Ren CR 3% : (AIR 1983 NOC 217), seeks an undertaking from German Consulate in New Delhi that they will render all assistance possible for the implementation of this order. It is true that in the aforesaid decision such an undertaking was asked from the United States Consulate but, as mentioned above, the petitioner herself has undertaken to withdraw the complaint filed by her in Germany and all that, thus, requires to be said is that the German Consulate in New Delhi would assist the respondent and apprise the Courts in Germany of the orders passed in this case. It is true that this Court shall cease to have jurisdiction once the child is taken out of India and the writ of this Court cannot run outidc India but this Court has full faith, hope and confidence that the directions of this Court will be respected and implemented in letter and spirit by the Courts in Germany just the same way as this Court has honoured their orders not only in letter but in spirit as well.
14. For the reasons mentioned above, this petition is allowed. Judgment was pronounced in the presence of the parties at the conclusion of arguments. The same shall form part of this order. Parties, however, are left to bear their own costs.
15. Before I part with this judgment, I would like to mention that even though the police of various places directed from time to time could not produce the respondent and the minor child, the C.B.I, when entrusted with the same assignment did laudable job by producing them (respondent and the child.) within few days. However, in view of the circumstances fully detailed above, the case ordered to be registered against respondent and job entrusted with the CBI shall now stand withdrawn.
16. Petition allowed.