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1987 DIGILAW 324 (KER)

PAILY JOSEPH v. UNION OF INDIA

1987-07-20

G.VISWANATHA.IYER

body1987
Judgment :- 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-in-law 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. 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. 4. The Government of India also appears to have taken some steps in relation to this matter. After some further correspondence there is a letter from Dr. J. Messeiller, namely, Ext. P8 dated 20-5-1987, in which he writes to the petitioner stating that there should be no mis-understanding on the part of the petitioner that there was any mistrust towards the petitioner or his family. Dr. J. Messeiller also assured the petitioner that Noby Paul had inherited all the properties of his parents and that he gets all the sums paid by way of insurance. The petitioner also received a letter Ext.P9 from the Embassy of India at Berne in Switzerland informing that the Government of India had advised the Embassy that steps need be taken "to ask the Swiss authorities" to send the child back to India only on the petitioner furnishing "a decree" from an Indian Court about the guardianship of the child. The petitioner was, therefore, requested to send a decree of the Court in India in the prescribed form through the Ministry of External Affairs to enable further action to be taken in the matter. 5. Notice of the original petition was issued to the respondent, Union of India, Shri. P. V. Madhavan Nambiar, Senior Standing Counsel for the Central Government appeared and was heard. 6. The law relating to guardianship among Christians of the erstwhile Travancore area (including Noby Paul) is the Travancore Christian Guardianship Act (Act XI of 1116 M.E.). S.3 thereof specifies the persons who are to be the legal guardians of a minor in respect of his person and property. Such legal guardians are the father, mother, paternal grandfather, and the others mentioned in that order. In the absence of the father and the mother, the paternal grandfather is the legal guardian of the minor. S.3 thereof specifies the persons who are to be the legal guardians of a minor in respect of his person and property. Such legal guardians are the father, mother, paternal grandfather, and the others mentioned in that order. In the absence of the father and the mother, the paternal grandfather is the legal guardian of the minor. Therefore, and since the parents of Noby Paul are both dead, the petitioner, who is the paternal grandfather of the child is the legal guardian of Noby Paul, both in respect of his person and in respect of his property. The fact that the petitioner is the paternal grandfather of Noby Paul, is, apart from its being not disputed, also borne out by the documents produced Ext.P10 is a certificate from the Tahsildar, Muvattupuzha testifying to the fact that the petitioner is the father of Paul Punchakkunnel, the deceased father of Noby Paul. Ext. P11 is a certificate issued from the St. Mary's Church, Kavakkadu testifying to the same fact. There can, therefore, be no 'doubt that the petitioner is the paternal grandfather of the child Noby Paul and, therefore, he is the legal guardian of the child Noby Paul as per S.3 of the Travancore Christian Guardianship Act, 1116. When the petitioner is thus declared by the statute governing the matter to be the legal guardian, a decree declaring his guardianship, or a fresh decree appointing him as the legal guardian of the minor child is not required. The statute governing the child has already declared him to be the guardian. 7. The letter Ext. P9 from the Embassy of India at Berne sent on the advise of the Government of India that a decree of the Court is required regarding the guardianship of the child is therefore erroneous in law. There is a clear error apparent on the face of the record. As stated earlier, there is no question of the petitioner being appointed or recognised as legal guardian. Nothing further is required to make the petitioner as the legal guardian of his minor grandson. The insistence in Ext. P9 on furnishing a decree from an Indian Court is, therefore, illegal. Apparently, what the respondent requires is only to be assured, and be informed, of the true position in law, that the petitioner is the legal guardian of Noby Paul. The insistence in Ext. P9 on furnishing a decree from an Indian Court is, therefore, illegal. Apparently, what the respondent requires is only to be assured, and be informed, of the true position in law, that the petitioner is the legal guardian of Noby Paul. For that purpose, however, they need not have insisted on production of a decree from court. 8. As the legal guardian of the minor child Noby Paul, the petitioner is entitled to have the custody of the person and the property of the said minor child, Noby Paul, without anything, more. The Government of India acting through its Embassy at Berne is bound to help the petitioner to get the custody of the minor child Noby Paul and also his property which has devolved on him consequent on the death of his parents. This is a duty which is cast on the Government of India to safeguard the interests of all its citizens wherever they are. It is evident from the correspondence produced in this case that the child' Noby Paul is a citizen of India and therefore, steps should be taken to see that the child is brought back to India as desired by his legal guardian. That is the prayer, the petitioner has made in this original petition. 9. From Ext. P1, it is clear that Dr. J. Messeiller was only insisting on a formal request from the Embassy of India, and so far as the latter was concerned, they felt that a decree of Indian court was required. Now that it is declared what the position in law is there is no reason why steps should not be taken to restore the child to his legal guardian. 10. I, therefore, declare that the petitioner is the legal guardian of Noby Paul, the minor child of Paul Punchakkunnel and his wife who both died on 5-7-1986. The respondent is directed to take such steps as are necessary to enable the petitioner to get custody of the person and property of the minor Noby Paul. It is at the same time necessary to safeguard the interest of the minor child and to see that the child is brought up properly. The respondent is directed to take such steps as are necessary to enable the petitioner to get custody of the person and property of the minor Noby Paul. It is at the same time necessary to safeguard the interest of the minor child and to see that the child is brought up properly. The petitioner shall therefore execute a bond to the satisfaction of the Passport Officer, Cochin, undertaking to look after, maintain and educate the child properly and also to utilise the property of the minor child only for his benefit and for his welfare. Petitioner will take expeditious steps to have the bond executed. The respondent shall thereupon take speedy measures through the Embassy at Berne to enable the minor and his properties to be brought to the custody of the petitioner. The Original Petition is disposed as above. Allowed.