Document Fragment View

Matching Fragments

9. We are in this case not seriously concerned with the validity of the divorce decree that has been passed by the German Court by order dated 16-5-1968, Ext. P-17. The arguments of counsel for the petitioner before us rested on a narrower compass. He relied on Ext. P-14, We shall not, at this stage, call that an order, for, it is urged by the 1st respondent that it is nothing more than an agreement. According to the petitioner, it is an order; an order, no doubt passed on an agreement but nevertheless an order of Court. And this was passed on the 9th of August, 1966, admittedly when the father and mother as well as the children were residing in Germany. They were certainly ordinarily residents in Germany at that time.

There is of course controversy as to whether the husband was permanently residing there at that time. According to him, he had no intention of settling down permanently in Germany at any time. He went there merely to study medicine He had, according to him, always ideas of getting back to his native land. According to the petitioner, at the time of the marriage the husband had promised that he would live with her and with their family for the rest of his life, in Germany. It is most difficult to fathom the mind of man. Hence the judicial assertion "that the Devil himself knoweth not the mind of man." Lord Bowen's dictum "that the state of a man's mind is as much a fact as the state of his digestion." has not simplified the process of ascertaining the mind of man. The state of a man's digestion is as much a mystery to a physician as the state of a man's mind to a Court called upon to ascertain it.

The facts available are that the father completed his medical studies by 1964, Rot employment in Germany in the same year and had married nearly an year before. Two children were born to him out of wedlock and they set up a matrimonial home however unsatisfactory according to the husband the environments were. And he lived in that home, though during the end of the period he stayed away from his wife by occupying the children's room instead of sharing their own with his wife, till 6-8 1965. On these facts, the question may arise whether the husband had acquired a domicile of choice in Germany. This may have to be determined as contended by counsel for the 1st respondent on the principles stated by the Supreme Court in the decision in Kedar Pandey v. Narain Bikram Sah, reported in AIR 1966 SC 160.

These considerations cannot be of much help when we are dealing with a case of this nature. But we have to remember certain aspects. If the children are entrusted to the mother they are being taken to a very civilised and cultured country on very friendly terms with the Indian people and the Indian nation. These are days of comparatively easy travel and even Germany is only a few hours by air from India. And above all, we have to remember that in those days many of our young men and women are seeking higher education and the hospitality of countries like West Germany, the United Kingdom, the United States, Japan etc. This is as It should be. There must be a greater mingling of various cultures and excessive nationality and any particular way of life or culture should not be considered as an impediment to such international friendly relations. Indian culture had been, and we hope still is, famous for its great tolerance and for the unstinted hospitality extended to foreigners who landed up on our shores. This culture and way of life demand that our young men and women when they enjoy hospitality of other countries honour and respect the culture and the way of life of other peoples and what is more respect their institutions, and the competent decrees of these institutions. That is the image that Indian culture should create in other countries.