1. This is a petition by a German mother for the custody of her two children, the daughter Konstanze, aged about 41/2 years, & the son Thomas Markus who is nearing but having not yet attained the age of 3. The petition is under Art.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 a mandatory injunction ordered on C. M. P. 143 of 1968 on 4-1-1968, that the respondents produce the children before this Court at 10-30 A. M. on 8-1-1968. By an order on C. M. P. 257 of 1968 dated 8-1-68 the direction to produce the children on the 8th January, 1968, was altered and the direction issued that the children be produced on the 11th 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 181-1968, 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. Teresa'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. Teresa'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 1958 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 15-7-1964. 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 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 atleast 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 us. 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. P3 petition dated 9-11-1965. There was an agreement arrived at regarding access of the fath