Govindan Nair, J.
1. This is a petition by a German mother for the custody of her two children, the daughter Konstanze, aged about 41/2 years, and the son Thomas Markus who is nearing but haying not yet attained the age of 3. The petition is under Article 226 of the Constitution of India and the prayers are that a Writ of Habeas Corpus be issued to the respondents to produce the children before this Court and that a further direction be given to hand over the children to the custody of the mother. The father of the children is the 1st respondent, the 2nd respondent is the father of the 1st respondent, and the 3rd respondent is the wife of the 2nd respondent, the 2nd respondent having married again after the death of the 1st respondent's mother.
A Division Bench of this Court before which this petition came up along with C. M. P. 143 of 1968 for the issue of 3 mandatory injunction ordered on C. M. P. 143 of 1908 on 4-1-1968, that the respondents produce the children before this Court at 10-30 A. M- on 8-1-1908. By an order on C. M. P. 257 of 1908 dated 8-1-1968 the direction to produce the children on the 8th January, 1968, was altered and the direction issued that the children be produced on the 11 th January. 1968. On that day, the children were produced before this court and the matter stood over to the 18th of January, 1968 for further consideration. On 18-1-1968, C. M. P- 694 of 68, a joint petition by the mother and the father was filed in Court and it was agreed by the father and the mother that pending disposal of this original petition, the children be entrusted to the St. Theresa's Convent, Ernakulam. Accordingly. Smt. P. K. Fatima Bee, an Assistant Registrar of this Court took charge of the children and entrusted them the same day with Sister Bernardine. Mother Superior, of the St. Theresa's Convent. Since then the children have been in the Convent under the protection and control of the Mother Superior with access to the father and the mother on the terms embodied in the joint petition referred to.
2. The question, by no means a simple or an easy one, with which we are faced Is whether we can, and if we can whether we should, grant the prayers in this petition and this has to be decided on the following facts.
3. The father, the 1st respondent, an Indian National, went to Germany in the year 195S to study medicine. There he met the petitioner who was also studying medicine in the same College which the 1st respondent attended and their mutual liking for each other developed into affection resulting in their marriage according to the Civil Law on the 20th of December 1963, and according to the ecclesiastical rites on the 29th of December that year. The daughter Konstanze was born on 15-7-1964. Before the second child, the son. Thomas Markus was born on 22-2-1966, the marriage which must have commenced with high hopes and dreams of an adventurous and enjoyable voyage through life ran into heavy weather and difficulties and all but foundered by early August, 1965. On the 6th August that year, the husband it is alleged by the wife, left the matrimonial home, never to return to it, and according to the husband he was forced to leave by the conduct of the petitioner's mother and particularly of her brother, a conduct which according to the husband was approved by, or at least acquiesced in by the petitioner. It is not very clear how matters came to a head on that fateful day in August 1965 but there are accusations and counter accusations which can be gleaned from proceedings before the German Courts to which parties very freely, soon after, took resort, as evidenced by certain orders produced before as.
The approach to the German Courts seems to have been almost simultaneous by the petitioner and her husband. The father asked for access to the children, who were with the mother, shortly after the incident on 6-8-1965, and the mother sued for divorce by Ext. P-3 petition dated 9-11-1965. There was an agreement arrived at regarding access of the father to the children on the 11th of November 1965 which the father says in the affidavit before this Court dated 12-1-1968 was 'formally engrafted in an order of a Court.' The father was dissatisfied with the arrangement. He complained that the terms of the agreement were not honoured by his wife. So there was a modification of the agreement by consent. This new agreement also failed to give satisfaction to the father. According to him even this agreement was violated by the wife. So he petitioned the Court on the 22nd July 1966 (Ext. P-9) praying for an oral hearing regarding his access to the children and further claimed that 'since the wife does not comply with the terms of this agreement an order must be made by the Guardianship Court.' The parties thereafter agreed on new terms regarding access and this is seen from Ext. P-14 which was filed in the German Court and was 'read and approved' by the Court and thus accepted by it. Since there is controversy regarding the implications of Ext. P-14, we shall extract it in full.
'Amtsgericht (County Court) Xa 417/65 Hamm. August 9th 1966Before the County Court Judge Pieperand the employee Stute as Protocol Officeremployee Stute as Protocol OfficerIn the matterof the law-suit between the medical assistant officer Dr. med. Chacko Pulparampil of Dortmund-Lutgendortmund, Protestant Hospital,WestricherStra Be 51, Petitioner represented by the lawyer Dr. Poppinghaus, Hamm and the medical assistant officer Dr. med Margret, Pulparambil Nee Feldmann of Hamm, GrunstraBe, respondent represented by the lawyer Muller and BauB, Hamm -- appeared today.
1. The petitioner and the lawyer Pop-pinehaus.
2. the defendant (respondent) and the lawyer Muller.
The parties entered into a discussion of the facts and then made the following agreement:
1. It is agreed between the parties that the father may have access to the child Konstanze born on July 15th 1964 once every week on Tuesday from 15 until 18 o'clock. For this purpose the father shall four times ring the bell at the door of the house GrunstraBe 7, and the mother shall bring the child to him. In the same way the father shall return the child to the mother.
2. The father is also entitled to see the son Thoms Markus born on February 22nd 1966 on every fourth Thursday of the month and to have him together with the daughter Konstanze.
3. This agreement becomes effective from Tuesday, August 16th, 1966.
4. The costs incurred in these proceedings are to be paid by both parties in equal parts, read and approved. Signed: Piper Signed: Stute Hamm, November 5th 1068CertifiedThis is to certifythat the above Signed: Manketranslation iscorrect. Protocol Officer of theCounty Court Dortmund,November 30th. 1968. Sd/-(Dr. Vins) sworn interpreter.'
In the meantime, the divorce petition was dismissed on 22-6-1966 by Ext. R-2 order on the ground that it has not been established that the husband by his fault 'has disturbed married life so deeply that normal relations cannot be expected to be resumed again'. The petitioner appealed from that order R-2 and while that appeal was pending, on the application of the mother the father was ordered on 18-10-1966 by Ext. P-7 to pay to the children maintenance at the rate of 130 German Marks for the months from May to September, 1966. Soon after, on the 27th of December. 1966, the father took out the children in terms of Ext. P-14 but instead of returning them to the mother before 18-00 hours that day, drove them in a taxi to the Dusseldorf Airport in the company and with the assistance of a nurse named Waltraud Rose, admittedly a friend of the father, and took a plane for India for the children. Konstanze was at that time less than 21/2 years old and Thomas Markus just over 10 months. The father did not inform the mother either about his departure nor did he cable her after reaching India.
After making frantic enquiries on the 27th of December, the mother moved a petition the next day before the Appellate Court where the divorce matter was pending and obtained an order Ext. P-1 dated 28-12-1966 by which it was ordered that the father hand over the custody of the children to the mother. Nothing happened pursuant to this order and the mother continued to make enquiries about the whereabouts of the children. On the 21st of April, 1967, by Ext- P-8 order, the appeal taken by the father from Ext. P-7 order directing maintenance to the children was dismissed. The mother has alleged that she came to know about the whereabouts of the husband and the children only from a letter which she received from the husband's step mother (3rd respondent) in November 1967 and that she could save adequate funds for her trip to India only by the end of that year. She came down to India in December, 1967, landing in Cochin on the 19th of that month and made attempts to get in touch with the children. She says she was not even permitted to see them. She therefore moved this Court by this petition.
4. The appeal from the divorce matter was allowed on 16-5-1968 by Ext. P-17 order holding that both parties were guilty of such conduct which was conducive to the disruption of marital relations but that the father was more to be blamed than the mother. It appears from Ext. P-17 order that the father also, at least alternatively, claimed divorce on the ground that the mother by her conduct had made marital relations impossible. The order Ext. P-17 holds that the father would have been entitled to apply for divorce on the conduct of the mother which had been established by the evidence in the case. The marriage was dissolved by the order Ext. P. 17. On the same day another order Ext. P-11 was passed by the Court exercising jurisdiction regarding the custody of the children. This order directed that the custody of the children be given to the mother. This order was apparently passed without knowledge of the order Ext. P-17 on the appeal in the divorce matter passed the same day by the Appellate Court. The only other order that we need refer to is the order Ext. P-15 by the same Court that passed the order Ext. P-11 and this seems to be the final order regarding custody. This order dated 27-11-1968 confirmed the direction in Ext. P-11 order that the custody of the children be with the mother.
5. It is common ground that the nationality of the father is Indian and that of the mother, German, It is also agreed that both the father and the mother are Christians of the Roman Catholic persuasion and that the children have been baptized according to the rites of the Roman Catholic Church.
6. There can be no doubt that the domicile of origin of the father is Indian and that of the mother German. On the evidence on record it is a difficult question to decide whether the father acquired a German domicile of choice. It seems to us unnecessary to decide this question for the purpose of this case. It is no doubt true that according to the canons of Private International Law, the mother and the children in this case will have the father's domicile,
7. Assuming without deciding -- we are not at all certain that the decision should be that way -- that the father had not acquired a German domicile of choice, and therefore the father, the mother, and the children were of Indian domicile, a competent German Court will have jurisdiction to pass a decree for divorce or custody of the children on the ground that the petitioning spouse had a real and substantial connection with the country of that Court or that the children were ordinarily resident in that country. This is a rule or principle that has been adopted by English Courts in very recent times and it seems to us that this trend manifests an important and necessary development of the law.
The case to which we shall first refer is the decision of the House of Lords in Indyka v. Indyka, reported in 1967 (2) All ER 689. Three of the Law Lords who decided this case recognised a foreign decree for divorce on the ground that the petitioning spouse had a real and substantial connection with that foreign Court. We shall extract the relevant passages from their speeches. Lord Morris of Borth-Y-Gest said:--
'The first wife at the time when she presented her petition in Czechoslovakia undoubtedly had a real and substantial connexion with that country. I see no reason why the decree of the Czech court should not in these circumstances be recognised.'
Lord Wilberforce expressed his opinion thus: --
'Recognition might be given to decrees given on a residence basis, either generally or in the particular case of wives living apart from their husbands where to subject them uniquely to the law of their husband's domicil would cause injustice, and where the jurisdiction of the court of the country of residence is appropriate.'
'How far should this relaxation go in my opinion, it would be in accordance with the developments that I have mentioned and with the trend of legislation, mainly our own but also that of other countries with similar social systems to recognise divorce given to wives by the courts of their residence wherever a real and substantial connexion is shown between the petitioner and the country or territory, exercising jurisdiction.' Lord Pearson in his speech, summed up the matter in these terms:--
'It seems to me that, subject to appropriate limitations, a divorce granted in another country on the basis of nationality or on the basis of domicil (whether according to English case law or according to a less exacting definition) should be recognised as valid in England. Also it the law of the other country concerned enables a wife living apart from her husband to retain or acquire a separate qualification of nationality or domicil for the purpose of suing for divorce, and the jurisdiction has been exercised on the basis of that qualification, that would not, normally at any rate, be a reason for refusing recognition-One obvious limitation is that a decree obtained by fraud or involving grave injustice should not be recognised. In addition there is a limitation which can only be indicated in rather general terms, and I will gratefully borrow some phrases. In the words of my noble and learned friend, Lord Pearce, the court must be not 'simply purveying divorce to foreigners who wish to buy it.' In the words of Mr. Commissioner Lately, Q.C., the courts must not be used 'for the convenience of birds of passage.'
8. These observations were made in a case where the House of Lords had to decide whether they should recognise a foreign decree granting divorce and this case has been followed in England in subsequent decisions. We shall refer to the one in Angelo v. Angelo, reported in 1967 (3) All ER 314 where justice Ormrod extracted the passages which we have read and recognised the divorce decree passed by a foreign Court. Counsel who contended before him that the foreign decree should be accepted, urged that the real ratio decidendi in 1967-2 All ER 689 probably is to be found in Lord Morris of Borth-y-Gest's speech, in which he speaks of it being necessary for the party obtaining the decree to have a 'real and substantial connexion' with the country pronouncing the decree. This contention was accepted by the learned Judge.
9. We are in this case not seriously concerned with the validity of the divorce decree that has been passed by the German Court by order dated 16-5-1968, Ext. P-17. The arguments of counsel for the petitioner before us rested on a narrower compass. He relied on Ext. P-14, We shall not, at this stage, call that an order, for, it is urged by the 1st respondent that it is nothing more than an agreement. According to the petitioner, it is an order; an order, no doubt passed on an agreement but nevertheless an order of Court. And this was passed on the 9th of August, 1966, admittedly when the father and mother as well as the children were residing in Germany. They were certainly ordinarily residents in Germany at that time.
There is of course controversy as to whether the husband was permanently residing there at that time. According to him, he had no intention of settling down permanently in Germany at any time. He went there merely to study medicine He had, according to him, always ideas of getting back to his native land. According to the petitioner, at the time of the marriage the husband had promised that he would live with her and with their family for the rest of his life, in Germany. It is most difficult to fathom the mind of man. Hence the judicial assertion 'that the Devil himself knoweth not the mind of man.' Lord Bowen's dictum 'that the state of a man's mind is as much a fact as the state of his digestion.' has not simplified the process of ascertaining the mind of man. The state of a man's digestion is as much a mystery to a physician as the state of a man's mind to a Court called upon to ascertain it.
The facts available are that the father completed his medical studies by 1964, Rot employment in Germany in the same year and had married nearly an year before. Two children were born to him out of wedlock and they set up a matrimonial home however unsatisfactory according to the husband the environments were. And he lived in that home, though during the end of the period he stayed away from his wife by occupying the children's room instead of sharing their own with his wife, till 6-8 1965. On these facts, the question may arise whether the husband had acquired a domicile of choice in Germany. This may have to be determined as contended by counsel for the 1st respondent on the principles stated by the Supreme Court in the decision in Kedar Pandey v. Narain Bikram Sah, reported in AIR 1966 SC 160.
But we shall not, as we said, go into this question. It is however clear that there was such a residence of both spouses and the children in Germany at the lime Ext. P14 came into existence, namely, on 9-8-1966 and earlier when the Court was moved by the father (in the first instance and by Ext. P9) as would give the German Court jurisdiction and competence to pass an order binding on the father. This is so not only on the basis of 'real and substantial connection' with the country of the Court, the principle which we have already referred to: but on the principle of residence emphasised by Lord Denning in his speech in Me P (G. E.) (an infant), reported in 1964 (3) All ER 977. Lord Denning expressed himself strongly on the limitations of the principle of domicile adopted by the Scottish Courts. These are his words:--
'I do not think that we should follow the Scottish courts in this matter. The tests of domicil art far too unsatisfactory. In order to find out a person's domicil, you have to apply a lot of archaic rules. They ought to have been done away with long ago. But they still survive. Particularly the rule that a wife takes the domicil of her husband. And the rule that a child takes the domicil of its father. If you were to ask what was the domicil of the child in this case, you would have a pretty problem. The child would take the domicil of the father. But what was the father's domicil? His domicil of origin was Palestine. His domicil of choice was England. But in Nov. 1962, he left England for Israel, taking the child with him. What was the father's domicil then? It all depends on his intention. Goodness knows how you are to find that out. His intention may at first have been to go to Israel for a short time. Later, when he found work there, he may have intended to make his home there permanently. When did his domicil change? Are you to take his word for it. If so, he could always defeat the jurisdiction of the court by saying that, from the very outset, he intended never to return to England, and abandoned his English domicil.
As an alternative to domicil, counsel for the mother invited us to apply the test of ordinary residence, and supported it by references to some cases where the word 'residence' was used and also in a case in the State of New York, Descollenges v. Descollenges, 1959-183 NYS 2d 943. I think that this is the right test. The fount of the jurisdiction of the Court of Chancery is the Crown which, as parens patrie, takes under its protection every infant child who is ordinarily resident within the realm, whether he is a British subject or an alien. As Lord Campbell said in Johnstone v. Beattie, 1843-10 CI and Fin 42;
'I do not doubt the jurisdiction of the Court of Chancery on this subject, whether the infant be domiciled in England or not. The Lord Chancellor, representing the Sovereign as parens patriae has a clear right to interpose the authority of the court for the protection of the person and property of all infants resident in England...'
10. We have therefore to take it that if Ext. P14 is an order of Court, it was an order passed by a competent court having jurisdiction to grant the custody of the children to the mother and permitting only access to the father. Nothing said in the decisions of the Supreme Court in Raj Rajendra Sardar Moloji Nar Singh Rao v. Shankar Saran, reported in AIR 19f.2 SC 1737 and in Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, reported in AIR 1963 SC 1 relied on by counsel for the 1st respondent militates against this view. In fact we do not find any question such as the one we are called upon to resolve being considered or decided in these decisions.
The circumstances under which Ext. P-14 came into existence, we have already referred to. We shall briefly recapitulate. The father was dissatisfied with the access to the children he was enjoying under two agreements made in succession, the earlier of which was according to the father, 'engrafted in an order of Court'. Hence he again approached the Court Ext. P9 in his petition before the Court. He claimed in that petition that 'since the wife does not comply with the terms of this agreement, (apparently the second one) an order must be passed by the Guardianship Court'. Thereafter the difference between the father and mother in this regard were resolved with the help of mutual friends and an agreement was reached. This was placed before the Court that was moved by the father. The Court found the terms of the agreement acceptable. It approved these terms, accepted then, and embodied them thus in an order of Court. This is clear from Ext. P14 itself. We may also refer to the fact that in Ext. P11, the German Court that passed it has referred to Ext. P14 as a decree of Court. We are satisfied that Ext. P14 cannot be treated merely as an agreement. It is an order of Court. This order, we consider is binding on the father.
It was suggested on the principle of the decision in Great North-West Central Railway Co. v. Charlebois, reported in 1899 AC 114 that the order Ext. P14 cannot have any greater validity than the agreement itself and that the agreement merely postulated joint custody of the father and mother and that the permission given to the mother by the father by such an agreement was revocable at any time by the father. Reference was also made to the decision of the Privy Council in Mrs. Annie Besant v. Naravaniah, reported in AIR 1914 PC 41. It was therefore, contended that the father could act against the terms of the order Ext. P14 as and when he liked. We are unable to agree. The decision in 1899 AC 114 is only to the effect that when a previous decree of the court is based on an invalid agreement, the invalidity of the agreement not having been raised at the lime the decree was passed thereon, the decree can be set aside in a subsequent proceeding on the ground of the invalidity of the agreement.
This is no authority for the proposition that the decree baaed on such an agreement can be flouted or ignored by one of the parties to the decree. Nor do we find anything in the Privy Council case referred to above which supports the contention raised by counsel on behalf of the 1st respondent. On the other hand, it is clear from the decisions of the Supreme Court in Shankar Sitaram v. Balkrishna Sitaram, reported in AIR 1954 SC 352 and Sailendra Narayan Bhanja Deo v. The State of Orissa, reported in AIR 1956 SC 346 that a decree passed on consent is as much binding upon the parties as a decree passed by invitum.
11. This leads us to the question how far this Court, which undoubtedly has jurisdiction to decide the question of the custody of the children who are Indian nationals, born of an Indian father, and who are now present in this country should respect and honour the orders of the German Court, Recently in a few cases concerning the custody of children which came up for decision before the English Courts where a similar question came up for consideration the view has been expressed that all Courts in all countries should respect each other's orders passed with jurisdiction and passed after a Fair contest, subject to any material and sufficient change in circumstances that would justify the alteration of the terms of the order passed by the foreign Courts. Two of these cases were decided by Cross J. at trial stage and the Court that heard the appeals from the decision consisted of Willmer Lord Justice as well. In the earlier case, the appellate decision of which if in Re H (infants) reported in 1966 (1) All ER 886 Willmer L. J. fully approved the following passage from the judgment of Cross. J.
'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 his wrongdoing.' The learned Judge went on to observe.
'That, I think, would be the ordinary common sense approach of anyone in the absence of authority.'
These observations were made in a case where the mother removed the children who by an order of a New York Court were to be under the control and jurisdiction of the State of New York, without having obtained the approval of the New York Court and without having consulted with the father. She went over to England, ignored a subsequent order passed by the Supreme Court of New York State to re turn the boys there, and issued an originating summons in England in July 1965 under which the boys became wards of the Court. On a motion on notice given by the father, the trial Judge. Cross, J. made an order that the mother deliver the boys forthwith unto the care of the father to whom liberty was given to take them back to New York. This order was upheld by the Court of Appeal.
12. It is no doubt true that in all cases the Courts need not blindly follow the order of custody passed by a foreign Court The case in Re E (an infant), reported in 1967 (2) All ER 881 illustrates this point. Cross J. was the trial Judge and Lord Williner was a member of the Court that decided the appeal. Lord Willmer in his judgment approved the passage from the judgment of the trial Judge reading as follows:
'The Courts in all countries ought, as I see it to be careful not to do anything to encourage this tendency. 'This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, 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''. (The underlining there into ' ' is ours).
The learned Judge fully agreed with this opinion and said:
'First of all, I would like to say, by way of comment on that passage, that I wholly agree with, and would wish to support, everything that the Judge said about the duly of all courts not to countenance behaviour of the kind there referred to.' The ward Diana regarding whose custody the question arose in that case was 'kidnapped' by her paternal grand-father with the assistance of her aunt (father's sister). Diana's father having died in tragic circumstances, the child was brought over to England contrary to the terms of a foreign Court's order and the mother subsequently came over to England and claimed custody. It was in these circumstances that the above comments were made because the removal by the paternal grand-father was against the terms of the foreign Court's order. Even so unlike in 1966 (1) All ER 886, custody was refused to the mother for the reason that 'to take Diana away from her (the plaintiff) would be utterly disastrous for the child'.
13. We may also refer to the observations of Harman. L. J. in Re T. (infants), reported in 1968 (3) All ER 411:
'What is said against the mother is that she has determined for her own selfish reasons to cut these children off altogether from the society, comfort and help of the father, and that because she thinks she would prefer to live in England she comes to live in England and will have none of his proposals for reconciliation.
This court sets itself against these unilateral movements of children which has been far too frequent in the last few years. The right view is that the court should, other things being equal, set its face against such conduct and I am supported in that by the observations of Willmer, LJ., in Re E. (an infant) where discussing Cross. J.'s Judgment he said: ........
At the outset of his judgment, after expressing his concern at what he described as the growing tendency, which has recently been apparent, of kidnapping children in this way and removing them from the jurisdiction of a foreign Court, the Judge proceeded as follows: The Courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. The substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a judge should, as I see it, 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. First of all, I would like to say, by way of comment on that passage, that I wholly agree with, and would wish to support, everything that the Judge said about the duty of all courts not to countenance behaviour of the kind there referred to.'
14. Following the above decisions we hold that this Court should respect the order of the German Court and allow this petition unless such a course is not in the interests of the welfare of the children.
We are aware that the father is the legal and the natural guardian. And it is arguable that even when the children are in the control of the mother, the legal custody continues with the father and that if the father takes the children from the mother his custody will not be illegal as he has got legal authority for the custody of the children. This certainly will not apply in all cases and in all circumstances. This is clear even from the decision in AIR 1914 PC 41 relied on by 1st respondent's counsel. Whether the rule will apply in a case where there was a solemn agreement between the father and the mother that the children should be with the mother is doubtful. Authority is not wanting that in such cases a unilateral breach of that agreement by the father or the mother will not be countenanced by Courts. Whatever that be, if such an agreement is accepted by a court of competent jurisdiction and embodied in an order of that Court, we feel no doubt that that order can neither be ignored nor flouted with impunity by one of the spouses.
15. On the facts of this particular case, we must in this connection refer also to Ext. P-7 order dated 18-10-1966 passed by the German Court granting maintenance for the children in favour of the mother. The effect of the conduct of the husband in removing the children is certainly to avoid the obligations imposed by this order to pay maintenance for the children who were in the care and control of the mother, We cannot conceive of an order for maintenance being passed against the father at the instance of the mother without postulating that the mother is in lawful custody of the children. This order Ext. P7 too cannot be permitted to be violated with impunity by the father. The attempts of the father to have the order Ext. P7 vacated in appeal turned futile as is seen from Ext. P8 order dated 21-4-68 passed in appeal. It was during the pendency of this appeal that the children were spirited away from the custody of the mother.
16. In ordinary circumstances therefore it is required that we honour the orders passed by the German Court to which we have referred to in detail. We have adverted to only such of those orders that have been passed before the children were taken away from Germany on 27-12-1966. The order Ext- P-1 came to be passed thereafter, the order Ext. P11, on the 16th May, 1968 Ext. P15 still later, and the order of divorce on 16-5-1968 the date of Ext. P11. These perhaps do not enter into picture in the view we are taking.
17. There can be no doubt that the removal of the children by the father against the terms of Ext. P14 and that in a clandestine manner was illegal. His conduct showed scant respect for orders of Court which he himself invited. He was also callously indifferent to the feelings of the mother. If the allegation of the mother that the younger child on the day of removal was suffering from a bad cold is true the father was also indifferent about the health of the children. Whatever that be the custody of the children so obtained by the father is illegal and this was the nature of his custody when this Court in this petition ordered Rule not to issue.
18. That the writ of Habeas Corpus can be pressed into service in circumstances such as these for granting custody to the deserving spouse has been well established for a long number of years by decisions of the English Courts. This is clear from a reference to Halsbury's Laws of England, Volume II, Page 33. In Paragraph 67, there is the following passage:
'A parent, guardian, or other person who is legally entitled to the custody of a child can regain that custody when wrongfully deprived of it by means of the writ of habeas corpus.'
19. We may also refer to the decision In R. v. Greenbill, reported in (1836) 4 Ad and E1 624 at p. 640; where Lord Denman C. J. said:
'When an infant is brought before the Court by habeas corpus, if he be of an age to exercise a choice, the Court leaves him to elect where he will go. If he be not of that age, and a want of direction would only expose him to dangers or seductions, the Court must make an order for his being placed in the proper custody.' The above passage was quoted with approval by the Supreme Court of India in Gohar Begum v. Suggi Begum, reported in AIR 1960 SC 93 a case under Section 491 of the Code of Criminal Procedure. After extracting the above passage and after also referring to Halsbury's Laws of England, Vol. IX, Article 120 at page 702 where there is the following statement:
'Where, as frequently occurs in the case of infants, conflicting claims for the custody of the same individual are raised, such claims may be enquired into on the return to a writ of habeas corpus, and the custody awarded to the proper person' the Supreme Court continued to observe as follows:
'Section 491 is expressly concerned with direction of the nature of a habeas corpus. The English principles applicable to the issue of a writ of habeas corpus, therefore, apply here. In fact the courts in our country hare always exercised the power to direct under Section 491 in a fit case that the custody of an infant be delivered to the applicant: Sree Rama Iyer v. Nataraja Iyer, AIR 1948 Mad 294, Zara Bibi v. Abdul Razzak, (1910) 12 Bom LR 891 and Subbaswami Goundan v. Kamakshi Ammal, ILR 53 Mad 72=(AIR 1929 Mad 834). If the courts did not have this power, the remedy under Section 491 would in the case of infants often become infructuous.'
20. In using the writ of habeas corpus for the custody of infants the jurisdiction exercised by the court in deciding whether the custody should be entrusted with one or other of the contesting parties depends not on the legal right of one of those parties to the custody of the child but as to whether in the best interests and welfare of the child the custody should be entrusted with one or the other. This is clear from the following passages from the American Jurisprudence, Volume 25, pages 202, 203, 204 and 205:
'Habeas corpus is a proper remedy to obtain the discharge of an infant from a detention which is illegal and to determine controversies concerning the right to the custody of the infant, at least under the conditions requisite to the issuance of the writ generally. Where the writ is availed of for the latter purpose, the proceeding partakes of the incidents of a suit in equity and is considered to be one in rem, the child being the res.'
'The writ of habeas corpus is a proper remedy on the part of one parent to recover a child from the other parent, either before or after the parents have been legally separated or divorced. Since the welfare of the child is the primary consideration in making an award for the custody of it, such an award may be made in a habeas corpus proceeding without reference to where the domicil of the parents may be, and the fact that the infant was brought within the jurisdiction in violation of an order of the court of another State docs not preclude the exercise of jurisdiction in a habeas corpus proceeding to make an order in respect of its custody, at least to the extent of determining whether changes in circumstances following the rendition of the foreign order require, in view of the best interests of the child, a new order for the custody of the child, and whether the interests of the child can be served best by leaving further proceedings to the foreign court that acted first in the matter of its custody.'
'It should be observed that as a general rule, where the writ is prosecuted for the purpose of determining the right to the custody of a child, the inquiry extends far beyond the issues that ordinarily are involved in a habeas corpus proceeding. The controversy does not involve the question of personal freedom, because an infant, for humane and obvious reasons, is presumed to be in the custody of someone until it has attained its majority. The court, in passing upon the writ in a case Involving the custody of a child, deals with a matter of an equitable nature; it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided not upon the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the cases of an adult, but on the court's view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence a court is In no case bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after a careful consideration of the facts, leave it in such custody as the welfare of the child at the lime appears to require. In short, the child's welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents art entitled to due consideration.'
21. Even so, it has been urged by counsel on behalf of the respondent, that due to various reasons, this Court should not and even cannot exercise jurisdiction to grant custody of the children to the mother even if it be found by us that such a course would he in the best interests of the infants. Therefore, before considering the test of the hest interests of the children, we have to examine whether there are any such impediments to the exercise of our jurisdiction. It must he remembered in this connection that the jurisdiction that we exercise when we decide on the question of custody of infants brought before this Court in habeas corpus proceeding is an inherent jurisdiction as distinct from a statutory jurisdiction conferred hv any particular section in any special statute. In this view we consider that none of the provisions contained in the enactments. The Guardians and Wards Act, 1890, and The Travancore Christian Guardianship Act, 1116 to which reference has been made by counsel on behalf of the 1st respondent stand in the wav of our exercising our parem patriae jurisdiction arising in a case of this nature. We are satislied that nothing in those enactments trammel such jurisdiction of ours in any manner. The question that arose for decision in Mrs. Sara Dorine Ramanathan v. Swamynathan Ramanathan, reported in 1961-39 Mys LJ 189 in about the ambit and scope of Section 25 of the Guardians and Wards Act, and file case cannot he an authority for the limitations of our inherent jurisdiction as parens patriae. The other cases cited by counsel for the 1st respondent also turned on the powers of the court under one statute or other.
22. Our attention has been invited to Article 25 of the Constitution of India, and it was emphasised that all persons have the right in India freely to profess, practise, and propagate religion and that this fundamental right guaranteed by the Constitution when taken along with the rights of a father who is the natural and legal guardian of his child to bring up the child in his own faith and according to his own views, and impart to the child such training and education that he considers best for the child, would be a complete answer to the claim of any other person for the custody of the child. We must particularly mention that it was emphasised that the father is a Roman Catholic, the doctrines of which religion have to be taught to the children and that this is not only a right of the father but an obligation and duty cast upon the father by the canons of the Roman Catholic Church. We do not understand Article 25 of the Constitution as conferring any right on the father which in any manner impinges on the right of this Court as parens patriae to deride the custody of the children in the best interests of the children.
The scope of the first amendment which Introduced to the American Constitution provisions similar to that contained in Article 25 of the Indian Constitution was the subject matter of decisions in the United States. It is useful to refer to a passage from the Commentary on Article 25 of the Constitution of India by Basu, Fifth Edition page 149:
'Again, the State may legislate for the protection of minor children, founded upon Its position as parens patriae, even though such legislation runs contra to a particular parent's religious beliefs. Thus, the right to practise religion freely does not include liberty to expose the children to ill health or death. Similarly, a law forbidding children to sell merchandise on the streets cannot be challenged on the ground that it interferes with the freedom to disseminate religious literature'.
The decisions relied on for the above propositions are People v. Pierson, reported in (1903) 176 NY 201, Wallace v. Labrenz, reported in (1952) 344 US 824 and Prince v. Massachusetts, reported in (1944) 321 US 158. Following the principles in those decisions, we hold that there is nothing in Article 25 of the Constitution of India that abridges or abrogates our jurisdiction as parens patriae.
If the argument is that the father alone can decide and not the Court, then a decision by the Court is had not because it violates Article 25 of the Constitution but because there is an unwarranted interference with parental authority. If every father were to say that he alone can decide then the parens patriae jurisdiction of Courts will cease to exist. This argument has only to be mentioned to be rejected.
23. Counsel then relied on Articles 19(1)(e) and 21 of the Constitution of India. Neither of these Articles compels a citizen of this country to reside and settle only within the territory of India. He is at perfect liberty to travel abroad and reside in any foreign country without prejudice to his right to return to this country at any time he chooses (See Satwant Singh Sawhney v. D. Damarathnam, Assistant Passport Officer, New Delhi reported in AIR 1967 SC 1836). In the case of a minor child it will ordinarily he left to the parent to decide where the minor child should reside, whether inside the territory of India or outside it. But circumstances can arise when this decision for the minor will have to he taken not by the parent but by Court. If in such a case the Court as parens patriae comes to the conclusion that it is necessary in the paramount interests of the minor to entrust it to the custody and care of one of its parents who is residing outside the territory of India it has full power to pass orders permitting the child to be removed out of India and we are unable to find anything in Article 19(1)(e) or 21 of the Constitution which abrogates to any extent the Court's jurisdiction in this respect.
24. Nor are we impressed by the argument that we will lose jurisdiction to entrust the children with the mother even if we come to the conclusion that it is in their best interests since this would involve the children being sent out of the jurisdiction of this Court. That there is no such absolute rule is clear from the following passage from Simpson on the Law of Infants, Fourth Edition page III.
'The general rule of the Court is that a ward of Court may not be removed out of the jurisdiction, and in several cases an order of this kind has been enforced on the father, as well as on other guardians; and orders have been made to bring backwards who are out of the jurisdiction.
Though the rule is as above stated, it will bend to special circumstances, and non-enforcement of it is much more easily obtained now than formerly; but some undertaking is usually required from responsible persons, or some security insisted on, that the infant will be brought back if necessary, and will be under proper control when abroad. The Court now gives leave without a case of necessity being shown, if it considers that it is for the benefit of the ward, and that there is sufficient security that future orders will be obeyed'.
To the same effect are the comments in Eversley on Domestic Relations, Sixth Edition, page 611:
'Before an Infant ward can be properly removed out of the jurisdiction, the leave of the court must be obtained. The Court was wont not to grant permission readily, but did accede from time to time to the request to remove them. Its practice was to refuse an order permitting its infant wards to be removed out of the jurisdiction, with a view to their residing permanently abroad, except in a case of imperative necessity, as where it was clearly proved that a constant residence in a warmer climate was absolutely essential to their health; and such an order, if made, would comprise a scheme for the education of the infants, as well as a provision for informing the Court from time to time of their progress and condition, and an undertaking to bring them within the jurisdiction when required. But in modern limes the Court is less strict in the exercise of this jurisdiction, and leave is now given to take an infant ward out of the jurisdiction without a case of necessity being shown; but the Court must be satisfied that the removal is for the infant's benefit, and that future orders will be obeyed'. We may also refer to the following passage from Joseph H. Beale on Conflict of Laws, Volume Two, page 720.
'The fact that the parent to whom the award of custody would otherwise be made is likely to take the child into another State is not usually a ground for refusing to make the award. Even if the child is to be taken into another country the award will be made, at least if it is a friendly country with a similar civilisation, like England, though it might be different if it were a barbarous country, or one with an alien civilisation or religion, and clearly a child's custody will not be awarded to a parent who is an alien enemy. Nevertheless, the court in awarding custody may order the parent not to remove the child from the State, though the case would have to be 'a very extreme one indeed' to justify such interference with the natural and legal rights of a parent. If the court allows a child to be taken out of the State, it may require the parent to give a bond to return the child at the end of a fixed time, or on order of the court; but this will not usually be required.'
The decision of the Court of Chancery in England in Re Kernot (an infant) reported in (1964) 3 All ER 339 shows that on farts very much similar to those that we have in this case Plowman, J., had passed an order granting custody to the Italian mother giving her liberty to take the child out of the jurisdiction of the court. It is significant that the order was passed by an English Court in the case of an English father, the child having the father's domicile and permitting the child being taken to Brescia in Italy. It is thus clear that the fact that the child may have to leave the jurisdiction of the court granting custody is no bar to the passing of appropriate orders in the interests of the child.
25. We are therefore, left with the sole question, and the most difficult question as to whether it will be against the interests of the children to give their custody to the mother in accordance with the order of the German Court.
No order of custody can ever be considered to be permanent as situations will alter and the welfare of the children will not be a constant quantity throughout their minority. The only security that the children may have in view of the wreckage of their home is the companionship of each other and no direction to separate them should be given except perhaps on the consent of the parents after a verv careful consideration by them of every aspect of the case.
We have to remember that the children are of tender age even now. The eldest is hardly 41/2 years old. The younger one, as we have said, has not yet attained 3 years- A mother's protection for such children is indispensable. We cannot think of any other protection which will be equal in measure and substance to that of the mother in such circumstances. We cannot help referring to the element passage of a jurist:
'The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretense of justification; and yet the interests of the child may imperatively demand the denial of the father's right and its continuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubling that paternal anxiety would seek fur and obtain the best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses' wages could possibly stimulate. (Bailey on Habeas Corpus, Vo. I, page 681).'
26. The father before us in this case is now staying at Palai, about 50 miles from here, and he is having a Nursing Home. His place of residence is not the same where he runs the Nursing Home. In his home there is no relative staving with him at the moment. No doubt, his father, the 2nd respondent, aged 62, and his step-mother whom his father married after the death of his mother are staying at a place about 17 miles away from the place where the 1st respondent is staying and it has been suggested that if the children are entrusted to the custody of the father, the 1st respondent's step-mother will look after them and that there would be no lack of affection. It has also been pointed out emphatically by counsel on behalf of the 1st respondent that a reference to Ext. P-17, the order of the German Appellate Court granting divorce would make it clear that the petitioner's mother and the petitioner's brother had taken a hostile altitude to the marriage of the petitioner and the 1st respondent and that hostile attitude continued till he left Germany and that there is no reason to think that there has been since then any change of heart in them. It was therefore stressed that the effect of sending the children with the mother will be to send them to a hostile atmosphere, to use the words of counsel, to the 'father's enemies' and that they can get little solace and attention which is essential for their upbringing.
It was even suggested that their upbringing will not be in accordance with the ethics of the Roman Catholic religion to which the father belongs and that it will result in the utmost harm ha that the children will lose the Indian way of life, the Indian culture and will become aliens to this ancient land of ours and will acquire a foreign culture and that in course of time, might develop a tendency to dislike everything Indian and even their father. This is a lurid picture that counsel has painted which only helped to enhance the anxiety which a Court will always feel in deciding a case of this nature. We have bestowed our best attention to the question involved. We have already pointed out that any order that we can pass in this case can only be of a temporary nature and may have to be modified, according to the circumstances that may arise in future, and must contain the necessary safeguards that any direction given by this Court will be implemented to the full extent. Nobody can predict now as to what will happen in years to come. Counsel on behalf of the petitioner has stressed that we have reached the age where barriers between nations have started to crumble and according to him have even ceased to exist.
These considerations cannot be of much help when we are dealing with a case of this nature. But we have to remember certain aspects. If the children are entrusted to the mother they are being taken to a very civilised and cultured country on very friendly terms with the Indian people and the Indian nation. These are days of comparatively easy travel and even Germany is only a few hours by air from India. And above all, we have to remember that in those days many of our young men and women are seeking higher education and the hospitality of countries like West Germany, the United Kingdom, the United States, Japan etc. This is as It should be. There must be a greater mingling of various cultures and excessive nationality and any particular way of life or culture should not be considered as an impediment to such international friendly relations. Indian culture had been, and we hope still is, famous for its great tolerance and for the unstinted hospitality extended to foreigners who landed up on our shores. This culture and way of life demand that our young men and women when they enjoy hospitality of other countries honour and respect the culture and the way of life of other peoples and what is more respect their institutions, and the competent decrees of these institutions. That is the image that Indian culture should create in other countries.
The religion of the mother is the same as that of the father. It is difficult to accept the argument that she will be practising the Roman Catholic faith in a manner different from that of the father. If, as was suggested by counsel for the 1st respondent, she has incurred 'latse santatia' according to ecclesiastical canons because she sued for divorce, the 1st respondent too is in the same position because he too asked for divorce at least alternatively before the Appellate Court. He has at present no 'home' with proper persons there to look after the children. However much the 3rd respondent may be fond of the children we do not consider that in the circumstances in which she is placed and considering where she is staying she will be able to take the position of the mother. The children are of tender age. And we feel no doubt that these young children will be well looked after by their mother. No doubt she is employed and she will have to spend perhaps long hours in connection with her work, and it is suggested that the grandmother on the maternal side, the only person who can then be in charge of the children, will be hostile to them. We have not however been shown any specific material from which it is possible to infer that the grandmother of these children on the maternal side at any time showed the slightest dislike for the children or for that matter exhibited the slightest lack of affection for them. Human nature is such that we find it difficult to conceive that she will look at her own daughter's children with anything other than the affection naturally and normally shown to grandchildren by a grandmother.
27. After an anxious consideration of all the aspects we have come to the conclusion that we must entrust the children to the petitioner, the mother. As we indicated, we have to introduce sufficient safeguards for the enforcement of the further orders of this Court. The safeguards that we consider that are necessary in this regard are the following:
1. The petitioner will execute a bond to this Court to produce the children whenever ordered by this Court to do so.
2. An undertaking from the German Consulate Authority in Madras that they will render all assistance possible for the implementation of any order passed by this Court from time to time within the framework of the German Law will be produced by the petitioner.
3. The petitioner will obtain and send a report from the Parish Priest within the Parish in which they propose to live every three months to this Court giving sufficient details about the children, their health and welfare and send a copy thereof to the father.
4. The petitioner will inform the Registrar of this Court the address of her residence from time to time and any change of address will be immediately notified.
5. She will not take the children outside West Germany without obtaining the previous orders of this Court excepting when they are brought to this country as directed in this order.
6. Once in three years, she must bring the children to this country for a minimum period of one month at her own expense. At that time, the father will have access to the children on terms and conditions to be directed by this Court when the children have reached this country. The three years' period will be determined from the date on which the children are taken by the mother from this country. They will be brought to India earlier as directed by the Court at the instance of the father provided that it is not within an year from today, if the father is willing to meet the expenses for the trip from Germany to India and back for the mother and children.
7. The father, if he is visiting Germany, will be allowed access to the children on terms and conditions as ordered by this Court on motion by the father intimating his desire to go and see the children and requesting for permission for access.
8. When the children are brought to India at the end of 3 years the whole question of custody may be reviewed suo motu by this Court or at the instance of the father or mother and the present order maintained, modified, altered or cancelled.
28. We have given these directions with the full awareness that once the children are taken out of India, this Court will cease to have jurisdiction in the sense that our writs will not run outside India. But the anxiety that we feel in this regard is more than allayed not only by our faith but by the hope and confidence that we have that the directions of this Court will be respected and implemented to the full extent by the German Courts just the same way as we have honoured the orders of the Courts in Germany.
29. The children will be taken from India only on the bond being executed and only on this Court being satisfied that the undertaking that we have said must be given by the Consulate in Madras is in accordance with the terms mentioned in this Order and on being satisfied that we can rely on such undertaking. On these formalities being completed, the Registrar will hand over the children to the mother, the petitioner. Till then, they will continue to be with the St. Theresa's Convent subject to the same terms and conditions as agreed upon in the petition C. M. P. No. 694 of 1968 which was accepted by order dated 18-1-1968.
30. This original Petition is ordered on the above terms. We make no direction regarding costs.