“Whether Baby Tanishka is under illegal detention of respondents 1 and 2 warranting issue of Habeas Corpus against them ?” is the question involved in this case.

2. Petitioner is the mother of Baby Tanishka aged 7 years. Respondent No.2 is the younger sister of petitioner. Respondent No.1 is the husband of respondent No.2. Respondent Nos.1 and 2 are issueless. Though the petitioner is Indian born, she has acquired the Canadian Citizenship. Baby Tanishka is born on 04.06.2010 in Oakville in Halton region of Province of Ontario, Canada out of the wedlock of the petitioner and Sri Kamalkumar Venugopal Chenguttai. Baby Tanishka has the Canadian Citizenship and is the Overseas Citizen of India.

3. Matrimonial discord arose between the petitioner and her husband Kamalkumar Venugopal Chenguttai which led to the legal proceedings for dissolution of marriage. Ultimately the Hamilton Court of Justice, by its Order dated 18.01.2012 dissolved the marriage of petitioner and Kamalkumar Venugopal Chenguttai with effect from 21.02.2012. In those proceedings vide Order Annexure-F, the Hamilton Court has granted the sole custody of Baby Tanishka to the petitioner.

4. Baby Tanishka was diagnosed with feeding aversion since her infancy and therefore by surgical procedure G-tube was inserted and she was being fed through the same. Since the petitioner had to struggle the matrimonial litigations and take care of the child single handedly, in the year 2011 she along with baby Tanishka flew down to India so that her mother can take care of the child.

5. On 15.07.2011, petitioner executed Annexure- G the deed of authorization, in favour of her mother Latha Seshachalam to hold custody of baby Tanishka until her return from abroad. On 30.01.2012 she has executed Annexure-H the power of attorney in favour of her mother Latha Seshachalam to act as the legal guardian of her daughter baby Tanishka to look-after her welfare.

6. The above facts are undisputed one. The contentious case of the petitioner is as follows: Respondents 1 and 2 requested her mother Latha Seshachalam to go and stay with them and therefore she along with detenue Tanishka shifted to the house of respondent Nos.1 and 2. Since respondent Nos.1 and 2 are issueless, they enjoyed the company of baby Tanishka. In July 2012 when the petitioner came down to pickup her child, respondent Nos.1 and 2 declined to part with the child. They requested that they be given some time as they are attached to the child. Respondent No.2 even threatened to commit suicide. Having regard to the said facts and the relationship between the parties she returned to Canada, but continued her requests to respondent Nos.1 and 2 to return the child. During her visit to Bengaluru in March 2015 and December 2015, respondent Nos.1 and 2 declined the petitioner, the opportunity to speak to the child. In March 2016 they even threw away Smt.Latha Seshachalam the legal guardian of the child out of their house detaining the child Tanishka with themselves. Thereafter the petitioner moved pillar to post visiting respondent Nos.3 to 6 for recovery of the child but in vain. Respondents 1 and 2 have illegally detained the child and welfare of the child suffers in their custody and thus she seeks writ of habeas corpus against the respondents.

7. Respondent Nos.1 and 2 in their statement of objections contest the claim of the petitioner on the following grounds:

(i) Having regard to the turmoil in her matrimonial life and the child’s health condition, the petitioner was not able to look after the child. Therefore she herself left the child under the care and custody of respondent Nos.1 and 2. Having regard to such consensual act, the petitioner cannot contend that they have detained the child much less illegally.

(ii) The petitioner has given the child in adoption to them and thereby they have become the adoptive parents. On that count also their custody is lawful.

(iii) The petitioner instead of maintaining a petition under the Hindu