JACQUELINE KAPOOR Vs. SURINDER PAL KAPOOR

JUDGEMENT

(1.) Mrs. Jacqueline Kapoor, a German National, living Dusseldorf in the Federal Republic of Germany since her birth and mother of female minor, Navdeep Kapoor, seeks custody of the child from respondent-Surinder Pal Kapoor, her divorced husband and father of Navdeep Kapoor, obviously an off-spring of the parties to the litigation, who was born during the currency of their marriage, through present petition filed by her under Arts. 21 and 226 of the Constitution of India with the aid of Ss. 12 and 25 of the Guardians and Wards Act, 1890 and Ss. 13 and 14 of the Code of Civil Procedure. The question that requires adjudication is, thus, as to whether Navdeep Kapoor (hereinafter to be referred to as minor child) should remain under the care and custody of her mother or that the father, who is also natural guardian of the minor, should continue to bring her up, who is so doing for the last about eight months. As a necessary corollary to the question aforesaid, determination of paramount interest of the child to remain with the mother or father, is necessarily tagged up. Under the facts to be narrated in the preceding paragraphs, it shall also have to be determined as to whether the judgment given by the Foreign Court is binding in the Courts in India.

(2.) Mrs. Jacqueline Kapoor (hereinafter to be referred to as petitioner) is admittedly a German national citizen living in Dusseldorf in the Federal Republic of Germany since her birth and is the mother of female minor child who is less than nine years old. Surlnder Pal Kapoor (hereinafter to be referred to as respondent) is an Indian national and father of minor child. The parties herein married at Sirsa in the State of Haryana in India on 4/01/1984 -tinder Hindu rites. Thereafter, both of them left for Federal Republic of Germany and were domiciled as residents of Dusseldorf Germany where they made their matrimonial home. From this marriage, minor child Navdeep Kapoor was born on 28/08/1985 in Dusseldorf, Germany. She was ever since living and brought up there. It is the case of petitioner that minor child only speaks, writes and understands German Language. She has been studying in Stadtische Gemein Schaftsgrud Shute, Am Rather Kreuz weg, Dusseldorf, Germany. To the misforture of this minor child, the relations between the parties became strained constraining the petitioner to file a petition for divorce at Dusseldorf, Germany, on 4/12/1989. Obviousl , ever since they are living separately. However, minor child is stated to be always in care and custody of petitioner. The marriage between the parties was dissolved by order dated 5/03/1993 by the Family Court at Dusseldorf, Germany. The order dealing with the child clearly recites that she was to be given to mother whereas respondent-father would have right of personal contact with her. He was allowed to meet the minor child every second week end and on other holidays. A copy of the orders, referred to above, duly authenticated by the Indian Embassy in Bonn, Germany, along with its English translation certified by the Embassy of the Federal Republic of Germany, New Delhi, India, has been placed on records of this case. Being aggrieved, respondent preferred an appeal against the orders, referred to above, and the matter then came to be decided by the Higher Regional Court at Dusseidorff, Germany, in case Ref. No. 2UF 67 / 93. Finding no merit in the appeal of the respondent, the same was dismissed by Hon'ble Judges Mr. Ewers, Mr. Paop and Mr. Funke. This order was passed on 30/06/1993 upholding the grant of custody of the minor child to petitioner giving reasons therein. A copy of this order as well certified by the Indian Embassy in Bonn, Germany, along with its true English translation certified by the Embassy of the Federal Republic of Germany, New Delhi, India, has been placed on records of this case. It is clear from the reading of the judgment that besides other things, an Expert opinion of Psychologist was also taken into consideration. According to the report of the Psychologist, it was found to be most important that the minor child should live with her mother. It was observed that according to the report it was most important for Navdeep Kapoor that her living conditions, which since the time of first expert report a year ago have stabilised themselves more and more, leading to her regaining more balance, continue to remain constant and without change.. That being so, it was further observed that sole guideline for the decision being the child's welfare, there was no occasion or necessity for any such change and there were no clues that the education and caring for the child through the petitioner would be of lesser quality than in the past. It was also observed that the Expert had stated that he found no signs of disturbances in the petitioner's personality which would question her capability to educate. While dealing with the partner of petiboner, it was observed that there were no signs that he would in any way harm the child's well being. As per the statement of her partner after an initial reservedness on both sides, a constantly improving and open relationship had developed between him and Navdeep and that they had nowadays happy and good understanding. Navdeep had not ever complained about his smoking and drinking. The operative part of the order reads thus :-

(3.) It is apparent from the narration of the admitted facts that respondent did not take the orders of the Family Court at Dusseldorf, Germany as also the Higher Regional Court at Dusseldorf, Germany, sportingly and even though the said orders had attained finality, in defiance thereof when he visited the minor child on 1/08/1993 as permitted by the Family Court, he requested for handing over the passport of minor to him with a view to take the child for a holiday to U.K. for three weeks, with an obvious intention not to return the child. When the child did not return after three weeks, for which respondent had taken permission, petitioner became very frantic and panicked resulting into reporting against respondent to the Police for his having abducted the minor child. This report was lodged on 22/08/1993 with the Polizeiprasidum Am Jurgensplatz, Dusseldorf. Petitioner thereafter made frantic efforts to locate the minor child through her friends and relatives at various places. She also sent information to the German Embassy in New Delhi in India for them to try and locate the whereabouts of respondent as also the minor child. Her such efforts brought tangible results when she was informed by the German Embassy that the respondent and minor child were living in Ambala City, Haryana, in India. Petitioner without loss of any further time filed the present petition in this Court for the relief indicated in the earlier part of this judgment on 12/01/1994.