PAILY JOSEPH Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is the paternal grand father of a child now aged six years by name Noby Paul. This child is the elder aged son of Paul Punchakkunnel, one of the sons of the petitioner. The said Paul, and his wife, and one of their two sons died in a car accident in Munich in West Germany on July 5, 1986. Paul was employed at Basel in Switzerland After the death of the parents, and their other son, the only surviving member of the family was Noby Paul, then aged 5 years. The Canton of Basel appointed one of their officials Dr. J. Messeiller as official legal guardian of minor Noby Paul. It is stated that the said Doctor is in search of suitable foster-parents for the child. The petitioner avers that his son, daughter inlaw and their children continued to be Indian Citizens, a fact which is not denied.

(2.) After the death of his son, the petitioner had been making attempts to bring back the child Noby Paul to India. On coming to know that Dr. J. Messeiller had been appointed as guardian of Noby Paul, the petitioner sent letter to the said Doctor requesting him to send Noby Paul to India together with the assets which belonged to Paul Punchakkunnel. Correspondence has also ensued between the petitioner, the Embassy of India in Berne and the Government of India in relation to this matter, which it is not necessary to advert to at length in these proceedings. To the petitioner's request, Dr. J. Messeiller sent reply Ext. P1 stating that since the child was living in Switzerland, the Swiss law had to be applied and that they will not accept the guardianship decreed by an Indian Court. He also stated that since Noby Paul had no dual nationality, the authorities represented by the Embassy of India in Switzerland should take the complete responsibility for the transfer of the child to, and his accommodation in India. It was also stated that since the boy had lived in Switzerland all along, it may disturb him very much and cause him harm, if uprooted, and therefore they will keep him in Switzerland unless they received a formal request from the Indian Embassy in Switzerland to send him to India.

(3.) It may be noted from the above that Dr. Messeiller wanted the Embassy of India in Switzerland to take the responsibility and to make the request to send the child back to India. The petitioner thereupon approached the Embassy of India in Berne, Switzerland in relation to this matter. There was a reply Ext. P2 dated 22nd January, 1987 in which the Embassy noted the petitioner's desire to have Noby Paul sent back to India but said, they were awaiting advice from the Government of India in the matter.