This petition is filed under Article 226 and 227 of the

Constitution of India praying for issuance of habeas corpus

directing the second and third respondents to secure the

presence of Kumari Vachana Kale, daughter of the

petitioner before this Court.

2.

Heard Smt. Sunita P. Kalasoor, learned counsel

for petitioner, Sri Arun L. Neelopant, learned counsel for

respondent No.1 and Smt. Vidyavathi M.K., learned

Additional

Advocate

General

along

with

Sri

V.S.

Kalasurmath, learned H.C.G.P for respondent Nos.2 and 3.

- 3 -

3.

Learned counsel Smt. Sunita P. Kalasur for

petitioner would submit that Kumari Vachana Kale is the

daughter of petitioner and late Sri Ravikumar Kale. Late

Ravikumar Kale is the son of first respondent. Kumari

Vachana Kale is aged about 11 and ½ years and studying

in 7^th standard in Classic International Public School at

Dharwad. She would further submit that Sri Ravikumar

Kale, husband of the petitioner and father of Kumari

Vachana Kale died on 11.12.2022. It is submitted that

Kumari Vachana Kale was with respondent No.1 from the

age of 4 and she was schooling at Dharwad with the care

of first respondent grandmother. It is alleged that Kumari

Vachana

Kale

is

in

illegal

custody

of

first

respondent/grandmother

and

the

first

respondent/grandmother is not allowing the petitioner to

even see her daughter and to talk to her. Hence, the

learned counsel prays for direction to the respondent No.1

to hand over the custody of Kumari Vachana Kale to the

petitioner.

- 4 -

4.

On the other hand, learned counsel Sri Arun L.

Neelopant for respondent No.1 submits that Kumari

Vachana Kale is with the first respondent since her birth

and the first respondent being the grandmother of Kumari

Vachana Kale is looking after her and taking care of her

including her schooling.

5.

On issuance of notice, today, Kumari Vachana

Kale is produced before this Court by the Sub Inspector,

Sub-Urban Police Station, Dharwad.

6.

We interacted with the child Kumari Vachana

Kale, aged 11 and ½ years, petitioner/mother and the

first respondent/grandmother. When we had interaction

with the child independently, the child expressed her

desire to go with the mother and to reside with the mother

at

Bengaluru.

The

child

stated

that

the

first

respondent/grandmother took care of her very well and

she also expressed that she wants both mother and

grandmother to reside together.

- 5 -

7.

The

petitioner/mother

of

the

child

is

a

Government Teacher in Education Department, working at

Bangalore. We also had interaction independently with the

petitioner/mother of the child and first respondent/

grandmother of the child. Petitioner/mother stated that

she is capable of providing good education to her daughter

and she would take care of her daughter, and the

respondent/mother-in-law is not allowing her to meet her

daughter.

8.

During the interaction with the first respondent/

grandmother, it is noticed that she is reluctant and refused

to part with the child. She stated that she has taken care

of the child since from her birth and at this stage, it would

be difficult to part with the child, as they have developed

bondage more so after she loosing her son recently.

9.

Keeping the aforesaid facts in mind, we would

examine the legal position. It will be useful to refer the

decision of the Hon'ble Supreme Court in the case of

Tejaswini Gaud and others Vs. Shekhar Jagadishprasad

- 6 -

Tiwari and others, reported in (2019) 7 SCC 42. Para

No.14, 19 and 20 of the said Judgment reads as under:

14. Writ of habeas corpus is a prerogative process

for securing the liberty of the subject by

affording an effective means of immediate

release from an illegal or improper detention.

The writ also extends its influence to restore the

custody of a minor to his guardian when

wrongfully deprived of it. The detention of a

minor by a person who is not entitled to his legal

custody is treated as equivalent to illegal

detention for the purpose of granting writ,

directing