MARGGARATE MARIA PULPARAMPIL NEE FELDMAN V. DR. CHACKO PULPARAMPIL AIR 1970 KER 1
FACTS
- A German mother, Marggarate Maria Pulparampil nee Feldman, filed a petition for custody of her two children under Article 226 of the Indian Constitution.
- The children, Konstanze (4.5 years old) and Thomas Markus (almost 3 years old), were taken by their father, Dr. Chacko Pulparampil (an Indian national), to India without informing the mother.
- The mother and father, both Christians of Roman Catholic faith, had married in Germany and had lived there.
- The marriage faced difficulties, leading to a divorce petition by the mother in Germany.
- The German courts had ordered the custody of the children to the mother and access to the father.
- The father brought the children to India, violating the custody order.
- The mother arrived in India and sought a Writ of Habeas Corpus for the production and custody of her children.
ISSUES
- Whether the Indian court should recognize and enforce the German court's custody order, and grant the mother custody of her children.
RULE
- Jurisdiction and Competence: A competent court in Germany had jurisdiction to pass orders related to custody based on real and substantial connection with the country, as recognized by Private International Law and English case law (Indyka v. Indyka, 1967).
- Domicile and Residence: The court considered the principles of domicile and ordinary residence in determining jurisdiction for custody matters, emphasizing the test of ordinary residence over domicile.
HELD
- The children and parents were residents in Germany when the custody order was issued.
- The German court had jurisdiction based on the residence and substantial connection of the parents and children with Germany.
- The German court's custody order was deemed valid and binding.
- The father’s act of taking the children to India violated the German court's order.
- The court concluded that the German court's order granting custody to the mother was valid.
- The court ordered that the custody of the children be given to the mother, Marggarate Maria Pulparampil nee Feldman. No direction was made regarding costs.
COMMENTARY
- Similarly, a decree of a foreign court, within whose jurisdiction the husband’s domicile was annulling a Hindu marriage solemnised in India will be recognised by courts in India. It is not as if such a marriage can be dissolved only in conformity with the provisions of the Hindu Marriage Act, 1955, and on grounds provided therein or by courts in India only ( Teja Singh v. Smt. Satya, AIR 1971 Punj 80).
- Courts of one country have no jurisdiction to decide questions of title to immovable property situated in another country nor pass a decree capable of enforcement against the same, but they have jurisdiction over all persons residing within its borders and can pass a decree as regards movables situated outside the state, provided it can effectively be enforced by process against the judgment-debtor within the state.
- Thus, a decree of the Madras High Court directing the defendant residing within the state to transfer shares in a company whose registered office was outside the state was held to be valid (Viswanathan v. Abdul Majid, AIR 1963 SC 1), but a decree creating a charge over immovable properties in a foreign state is without jurisdiction (Sivaramakrishnan v. Mammu, AIR 1957 Mad 214 ). So, a decision of a Kathiawar Court as to a custom governing partition will not be res judicata in a suit for partition between the same parties of lands in British territory. In matters of foreign judgments, the courts here are guided by very much the same principles as those adopted by the courts of England (Nalla v. Mahomed, (1897) ILR 20 Mad 112) As in England, the foreign judgment must be final and conclusive in the court in which it is passed and it may be final although it is subject to appeal to a higher court.