Govindan Nair, J.
1. These Civil Miscellaneous Petitions are the aftermath of a Full Bench judgment of this Court in O. P. No. 71 of 1968 reported in 1969 Ker LT 174 = (AIR 1970 Ker 1 FB). One of the questions considered in that judgment was with whom, the father or the mother, the custody of two infants, Konstanze born on the 15th July, 1964, and Thomas Markus born on the 22nd February, 1966. should be entrusted in exercise of the jurisdiction of this Court as parens patriac, in the best interests and for the welfare of the infants. We then came to the conclusion that the custody must be with the mother subject to certain conditions mentioned in paragraph 27 of the judgment which we may extract:
'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 arc 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 a 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 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.'
2. The infants lett India under the custody of the mother in April 1969. So under condition No. 6 in paragraph 27 of the judgment they were due to be brought to India in April 1972. Also, under condition No. 3, the mother was obliged to obtain and forward, once in every three months, reports from the Parish Priest within the Parish in which the mother and children lived, giving sufficient details about the children, their health and welfare, with a copy to the father.
3. On the ground that the above conditions in paragraph 27 of the judgment had not been honoured by the mother, an affidavit dated 4th June, 1972, was filed in this Court, along with the petition C. M. P. No. 10913 of 1972, on the 5th July, 1972. This affidavit was sworn to at Louisville, Kentucky 40218, U. S. A. Somewhat inconsistent with the concluding part of the affidavit requesting this Court to take steps to enforce the provisions regarding the safeguards embodied in the judgment, it is prayed in the accompanying petition that 'the judgment as contemplated therein be reviewed and cancelled and the children returned unconditionally to their father'.
4. This petition came up for hearing on the 4th September, 1972. Sri T. N. Sub-lamonia Jyer, Advocate who had appeared for the mother in O. P. No. 71 of 1968, in Which she was the petitioner, prayed for a month's time to contact his party and this Court directed that the petition be posted to the 25th September, 1972, In the meantime, counsel for the mother filed a statement dated 19th September, 1972, it is said on instructions from the party, along with an affidavit from the mother sworn on the 29th May, 1972 and in answer there is a statement dated 21st September, 1972, by Sri. Manuel T. Paikaday, counsel for the father, also said to have been filed on instructions from his client.
5. When the matter came up for hearing on the 25th September, before the Full Bench, counsel for the mother was informed by the Court in clear terms that any question of consideration of the alteration of the terms in condition No. 6 can arise only on the infants being brought to India as stated in the judgment. So, counsel was told that the Court will not consider the submissions of the mother that condition No. 6 be waived, that he must intimate the Court the date of arrival of the infants here and that all steps necessary for their expeditious arrival in India must be immediately taken by counsel. Counsel for the mother then submitted that, as he saw it, no useful purpose would be served by the mother coming with the children to India when the father was away in Kentucky. He was told by the Court that the conditions in the judgment, should be obeyed and that the Court must have the infants here before any other matter was considered. At that stage, counsel for the father stated that within 48 hours of intimation of the date of arrival of the mother and children, the father will be in India. The case was then adjourned to the 3rd October, 1972, at the request of counsel for the mother to state the date of arrival of the infants. On that date, counsel for the mother intimated that the mother is taking urgent steps to come to India, but the exact date could be intimated only later, as certain formalities had to be gone through before they could leave West Germany, and prayed for a short time, expecting, as he told us, to get a telegraphic communication within three days. This submission was made by counsel in the morning in Chambers of one of us and on consultation with the other Judges and on being informed that counsel for the father, Sri Manuel T. Paikaday, had been told about this, the case was adjourned to the 6th October. Since the case was posted only for the purpose of submitting to the Court the date of arrival of the mother and children, a formal sitting of the Full Bench constituted was thought unnecessary. On the 6th October also, the same procedure was followed. Counsel for the mother then prayed for a longer time and the case was adjouned to the 18th October, 1972. The Full Bench could not, however, be constituted on that date since one of us who was also a party to the earlier Full Bench judgment was on leave till the 20th October and as it was felt that the Bench should consist of the Judges of the Court still available and who had decided O. P. No. 71 of 1968. It was thereafter that intimation was given by counsel for the mother on the 2nd November, that the motor will be arriving in India with the children on the 4th November and he suggested that the case may be posted to a near date. This was submitted by the mother's advocate in Chambers on the 2nd November. It was also submitted by counsel that a petition was being moved intimating this fact. This petition (C. M. P. No. 14305 of 1972) a copy of which had been served on Sri. Paikaday before it was filed into the Court, was dirtc-ed to be posted before Court and it came up on the 3rd November before a Division Bench consisting of two of us and the Court passed the order 'Post this along with C. M. P. 10913 of 1972 in O. P. 71 of 1968 on Monday the 6th November 1972'. On the 6th November, both the petitions, C. M. P. Nos. 10913 and 14305 of 1972, came up for hearing before this Full Bench. Sri. Manuel T. Paikaday then prayed that the case may be posted to the 24th of this month and read out to us two telegrams received by him from the father. We informed Sri. Manuel T. Paikaday that an adjournment beyond the week would not be reasonable in all the circumstances of the case and that the case must be heard on the 9th or at the latest on the 10th of this month. Sri. Paikaday then asked for at least two weeks' time and finally prayed for an adjournment till the 13th. This final prayer was granted. It was thus that the case came up on the 13th of this month. We are referring to these postings in detail because there are certain averments made by counsel for the father in the statement dated 9th November, 1972 filed by him in answer to C. M. P. No. 14305 of 1972 which, to say the least, are inaccurate and misleading.
6. CM.P. No. 14305 of 1972 contains the prayers that part of condition No. 6 that the children should be brought to India once in three years at the mother's expense for a minimum period of one month may be deleted and that condition No. 3 may be modified. There is a reply statement by counsel for the father dated 9th November 1972 to this containing mostly arguments and a rejoinder-affidavit by the mother dated 12th November 1972 dealing with the averments and arguments in the statement of counsel for the father dated 9th November 1972. We think it unnecessary to refer to the averments in detail. The prayers in C. M.P. No. 14305 of 1972 have been sub requently given up by the mother, vide her affidavit dated 14th November, 1972.
7. The admitted and established facts are the following; The infants have been with the mother since January 1968. There is no complaint from any quarter that they have not been well looked after and cared for with the affection and consideration due to children of such tender age. Both the children have been put to school and are now studying. There is no allegation that they are being brought up in any manner inconsistent with their status in society or against moral standards or against the teachings of their religion.
We have seen the children. At the conclusion of the hearing on the 14th we invited counsel for both sides and the mother and children to the Chambers. The children looked quite healthy, happy and smart and appeared devoted and affectionate towards their mother and seemed to be well adjusted and contented.
The father from his conduct does not appear to have been too eager to see the children during the last three and odd years. Though he has now complained about lack of reports, he had not moved his little finger to get the reports envisaged in condition No. 3. He never even intimated this Court about the fact that he had not been receiving reports before the 5th July this year. Though there is a statement in his affidavit dated 4th June 1972 in Paragraph V that 'I have been voluntarily sending for their benefit hundred U. S. Dollars (Rs. 750/-) every month regularly' giving the impression that he had been sending the amounts during the last three and odd years, the fact is that the first remittance was only in February this year. Even though the father's advocate had been intimated by counsel for the mother on the 2nd November 1972 that the children would be arriving here on the 4th November and although it had been categorically stated before us more than once by the father's advocate that within 48 hours after the children's arrival in Cochin, the father would manage to be here, the father has not so far cared to come and see the children. Till now the father has not even sent any affidavit explaining the reason for his alleged inability to come.
Soon after O. P. No. 71 of 1968 was decided, the father got married to W. Rose. The mother calls W. Rose 'her enemy'. The prior history of the case shows that W. Rose had played an active part in clandestinely removing the children from the lawful custody of the mother in gross violation of the order passed by the German Court. Her relationship with the father even then was more than friendly. She followed him to India and has become now his wife. The naturally strained relationship between this lady and the mother has now made it more difficult for the mother to reach some satisfactory arrangement with the father regarding the future of the children.
The father has been travelling from continent to continent, but never visited Germany to see the children. One of the conditions in the judgment enabled him to move this Court for access to the children in Germany; but he never cared to avail himself of this right. He did not also avail himself of the right to have the children in India as envisaged in condition No. 6 after an year. Though he has prayed that the children be entrusted to his custody, he has not furnished any material before this Court about the circumstances in which he is placed, the nature of his employment, the income that he is making, what sort of a house he is having and in what manner he expected to look after his children who are still of tender age. He has not even intimated this Court the reasons, as already stated, why he has not been able to come to India soon after he got information that the children were reaching Cochin on the 4th November 1972.
8. The question is what modification, if any, we should make regarding the custody of the children in all the circumstances and in the light of the materials available before us. The mother has prayed that she may be allowed to have the custody on the same terms and conditions; but the father has prayed that the custody be entrusted to him. The basis of the father's claim is founded mainly, if not exclusively, on his rights as the natural, legal guardian, and on the ground that the mother has violated the conditions in the earlier judgment. His counsel contended that the circumstances found in the judgment in O. P. No. 71 of 1968 have ceased to exist and that in the altered circumstances the rights of the father must be allowed to prevail. So we shall first address ourselves to the question whether the circumstances that we have found in the judgment in O. P. No. 71 of 1968 have altered as contended by counsel for the father.
9. It is said that the children are no more of tender age because the elder has completed 8 years and 4 months and the younger, 6 years and 9 months. We cannot agree. In the decision in Bai Tara v. Mohan-lal reported in AIR 1922 Bom 405 a boy aged 7 years old was said to be of tender age. Shah J., observed thus:
'The boy is of tender age and I think that at present the persona! care of the mother is a paramount consideration.'
Beaumont C. J. approved the principle of this decision and had to say the following in Saraswathibai v. Shripad Vasanji reported in A.I. R. 1941 Bom 103 :--
'I think the law on questions of this sort is the same in this country as in England, though of course social habits may be different The modern view of Judges in England is that it is impossible, in the case of a young child, to find any adequate substitute for the love and care of the natural mother. If the natural mother is a suitable person, the Courts in England will as a general rule hand over the custody of a child of tender years to the mother. The mother's position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband. The view of society in India as to the position of women may not have advanced so far or so fast as in England, but at the same time the right of the mother to the custody of her young children is undoubtedly recognised in this country: see for example 24 Bom LR 779 = (AIR 1922 Bom 405). However the paramount consideration is the interest of the child, rather than the rights of the parents. Human nature is much the same all the world over, and in my opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years.'
10. A Division Bench of this Court consisting of Koshy C. J. and Varadaraja Iyengar J. observed in Raman Konderan v. Ayyappan Pnnrhali reported in 1959 Ker LT 280 = (AIR 1959 Ker 396):
'But the modern view would appear to indicate that in a contest between the mother and the father regarding the custody of a child of tender years the court in the interests of the child will prefer the mother to the father. The reason is that the rule that a father has got the natural right to the custody of his children is not a rigid and inflexible rule and must give way where the minor's welfare demands otherwise 'the welfare of the child is not to be measured by money only or physical comfort only .....The moral or religious welfare of the child must be considered as well as its well-being. Nor can the ties of affection be discarded'.'
This was said with reference to two minor boys aged 8 and 6 years. It therefore appears 1o us to be a principle well supported by common sense, by natural feelings arising in human minds as well as on decided authority that infants who arc 8 and 6 years old are normally best entrusted to the custody of the mother because that would be the best answer to the paramount consideration of welfare of the infants. We are therefore unable to accept the argument of counsel that one of the reasons that weighed with us. namely, the tender age of the children, in cnming to the conclusion that the custody must be with the mother, has ceased to exist.
11. We shall now deal with the Other contention that the father has a home now for the children which we said then that he did not have. We have no information regarding the nature of the home and who are the inmates thereof. The father, we understand, is employed as a doctor. Naturally he will not be available to look after the children for the most part of the day and perhaps the night. It is stated in the statement filed by counsel on behalf of the father that the present wife will have all the time to look after the children. There is not even an affidavit from the father regarding this. It is also stated that the present wife is a qualified paediatrician. This is denied by the mother in her counter-affidavit. Whether the present wife is employed or v/hether she is likely to get employed, we have no information. Nor can We rule out the possibility of her getting children of her own. Apart from these factors, the present wife of the father, as we indicated earlier, has played a role in removing illegally the children from the lawful custody of the mother and we do not regard her a fit or proper person to whom the actual care of these infants can be safely entrusted.
12. We are not satisfied that the father is now having a home which can receive the children and that the home that he has would be in their best interests and in accordance with their welfare. We also very seriously doubt whether the children will be able to adjust themselves to the change consequent on their being uprooted from Germany and transplanted in a foreign country, the United States of America, in a home the details of which are unknown.
13. Counsel for the father argued that the maternal grandmother with whom the children are now spending most of their time is hostile to the children because they are 'really and merely Indians'. There is no factual foundation for this argument and we dealt the very same contention in our judgment in O. P. No. 71 of 1968. We shall extract the relevant part of the judgment:
'.....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 grand children by a grandmother.'
14. We are unable therefore to accept the argument of counsel that the circumstances that weighed with us when we pronounced the judgment on the previous occasion have changed.
15. We shall now deal with the contention that the mother has violated the conditions of the judgment and therefore she should not be allowed to have the custody of the children. There have not been regular reports from the Parish Priest. In fact, there have been only a few reports at the beginning. The reason for this omission is stated to be that the Parish Priest did not comply with her request without an order of this Court being directly communicated to him through the German authorities. The mother has apologised for this and has assured this Court that she will see that the condition is fulfilled in future. In these circumstances, we do not think that because of this omission on her part to obtain and send the reports from the Parish Priest regularly, the custody of the children should be taken away from her.
16. As regards the contention that there has been a breach of condition No. 6 in paragraph 27 of the judgment, it is no doubt true that the children should have been brought to India in April 1972 itself. The explanation given by the mother for not fulfilling this condition in time is that no useful purpose will be served by tho children being brought to India since the father has left India nearly three years ago. We do not think that in the circumstances of this case this is an unreasonable explanation, though it will not strictly be a valid excuse in view of the mandatory nature of condition No. 6. In incorporating the said condition this Court had proceeded on the assumption that the father would be residing in India itself, since his case then was that he had settled down in this country and Wished to bring up the children in the atmosphere of his Indian home according to the Indian customs and traditions. It is significant that she has stated this in an affidavit sworn to by her on the 29th May, 1972, long before the present application was filed by the father. The other explanations stated, though they are neither sufficient nor can be considered as proper excuses for not complying with the direction to the letter, are not matters of mean value; the risk of her losing her job, the difficulty of getting leave for herself and the children and financial Stringency. When it was made clear by this Court that notwithstanding the father's absence from this country, the mother is bound to comply with condition No. 6 she has obeyed the said direction and brought the infants to India. She has also undertaken again that she will strictly comply with the directions in fulure. So, on this ground also We do not think that we will be justified in taking away the custody of the children from her.
17. No decision has been brought to our notice which has ruled that the welfare of the infants is not the paramount consideration. Nor has any decision gone to the extent of stating that the rights of a natural and legal guardian must override the wel fare and interests of the infants. There have. of course, been cases where the custody has been entrusted to the legal guardian and also cases where the custody has been taken away from the legal guardian. In all these cases, the real basis of the decision was the welfare of the infants.
18. The trend now seems to be to give greater weight to the paramount consideration or the welfare of the infants. In (1969) 2 W.L.R. 540 the House of Lords went to the extent of refusing the joint request by the father and mother for the custody of their son which was with foster parents on the ground that the uprooting of the infant from the custody of the foster parents will not be in the best interests of the infant.
19. There is an aspect which we think is very pertinent in considering the welfare and interests of the infants and that relates to the emotional upheavals that can be caused by the environmental changes resulting from the children being uprooted from Germany. That such emotional upsets must be avoided to the extent possible is now well established. The English Courts have even gone to the extent of taking the view that the unhappiness caused to the mother may result in emotional upsets in children which can vitally affect their fulure. We may refer to a passage from (1970) 3 All ER 659:
'I am very firmly of opinion that the child's happiness is directly dependent not only on the health and happiness of the mother but on her freedom from the very likely repercussions, of an adverse character, which would result affecting her relations with the stepfather and her ability to look after her family peacefully and in a psychological frame of ease, from the refusal of the permission to take the child to New Zealand which I think quite clearly his welfare dictates'.
20. In (1969) 2 W.L.R. 540 Lord MacDermott made the following observation:
'A growing experience has shown that it is not always so and that serious harm even to young children may, on occasion, be caused by a change. I do not suggest that the difficulties of this subject can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child's future happiness and sense of security are always import ant factors and the effects of a change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.'
21. We have no doubt that the uprooting of the children from Germany resulting in the severance of connection between them and their mother with whom alone they have been having constant company for most of their lives and the consequent change of being planted in a strange country will cause seri ous emotional upsets to the infants and that they would find it extremely difficult, if not impossible, to adjust themselves to the new environment. This can very materially and drastically affect their future.
22. In all the circumstances and the facts proved and admitted in this case wo feel no doubt that the welfare and interests of the infants would be best served by their being permitted to remain with the mother.
23. Counsel on behalf of the mother of the infants submitted that in view of the fact that the father of the children is not here in India and since there is no assertion that he will be able to reach India within a few days and then spend some time with the children and in view of the other facts, namely, that the children have to be back in school next week and that it is difficult for the mother to obtain an extension of her leave, the mother may be allowed to take back the children without their having to be here in India for a period of one month after their arrival here. We consider that this request, in the circumstances has to be granted, particularly in the light of the modifications that we will presently be making in regard to condition No. 7 in paragraph 27 of the judgment. We accordingly permit the mother to take back the children forthwith. The registrar will, as soon as this judgment is finalised and signed, inform the Mother Superior of the St. Teresa's Convent that the children may be permitted to be taken by the mother to Germany.
24. Counsel for the father submitted that in case this Court came to the conclusion that the custody of the children must continue with the mother for another period of three years, some alterations should be made in condition No. 7 in paragraph 27 of the judgment which provides for access fur the father to the children in case he visited Germany. In our judgment in O. P. No. 71 of 1968 we said that the father must move this Court and will be entitled to visit the children in Germany on such terms and conditions fixed by this Court on the motion of the father. Counsel submitted that the condition that he should move this Court and that this Court should then give permission and impose terms and conditions may be omitted from the judgment. We are happy to note that on behalf of the mother, counsel agreed that such alterations may be made. We also consider that the request of counsel for the father is reasonable. We therefore alter condition No. 7 and provide that it will be open to the father to visit his children in Germany whenever he finds it convenient to do so. The only condition that we impose is that he must intimate the mother a week in advance of his arrival in Germany so that arrangements may be made for the father's meeting the children and spending time with them. The father will therefore intimate the date of his proposed visit to Germany a week before his arrival there. While in Germany, he will be entitled to visit the children during day time in the house in which they are staying. The mother will make the necessary arrangements for the father to have access to the children each day for a period of two hours to be mutually agreed upon. We make it clear that the father is not permitted to take the children out of the said house, but will have their society and company only in the house.
25. We therefore dismiss both C. M. P. Nos. 10913 and 14305 of 1972. We direct the parties to bear their respective costs.
26. The children will continue to be under the custody of the mother subject to the conditions mentioned in paragraph 27 of the judgment of this Court in O. P. No. 71 of 1968 excepting that condition No. 7 therein would be as stated in paragraph 24 above. The infants will be next brought to India during the first half of December 1975 at the expense of the mother. The father will take note of this and make the necessary arrangements to be in India at that time. The bond executed by the mother as well as the undertaking given by the German Consulate by their terms will continue to be in operation. We also direct that they will continue to be in operation.
27. Before we close, we would like to observe that the father and mother must realise the realities of the situation: a broken home as far as the father and mother of these infants are concerned; the fact that they have to be in different continents;; that rapprochement between them has now become impossible hi the light of a divorce and the remarriage of the father. They should not, however, forget that they will have to make sacrifices in the interests of the infants and must approach the problem, for the sake of the future of the children, with a spirit of give and take. We are happy to note that there is some thinking on these lines. And in this we see a ray of hope.