MARGGARATE MARIA PULPARAMPIL NEE FELDMAN Vs. CHACKO PULPARAMPIL

JUDGEMENT

(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 157-1964. 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 1966 Before the County Court Judge Pieper and the employee Stute as Protocol officer employee Stute as Protocol Officer In the matter of the law-suit between the medical assistant officer Dr. med. Chacko Pulparampil of dortmund-Lutgendortmund, Protes tant Hospital, Westricher Stra 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.