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Judgment
Shylendra Kumar, J.—This petition for issue of a writ in the nature of habeas corpus is by a mother against the third respondent - father of eight years old daughter, who it is alleged is kept under illegal custody by the third respondent. The Superintendent of Police and the Station House Officer, Madikeri Circle, Siddapur Police Station, Polibetta Out Post, Coorg have been impleaded as the first and second respondents respectively to this petition.
Petition averments interalia contends that the couple who were living at Bangalore a few months after their marriage, had to go to back to the native place of the third respondent in Coorg; that the third respondent was not acting as a responsible parent and it is only the in-laws of the petitioner who have taken care of the family and also in brining up of two children of the couple; that differences cropped up between the couple and it is mentioned that the couple arrived at an understanding that the petitioner will take care of the children by bringing up them at Bangalore and as per this arrangement, the petitioner moved to Bangalore along with her two daughters in the year 2010 and the children were admitted to Bishop Cotton Girls'' School, Bangalore, in the academic year 2010 - 11.
It is also averred that the third respondent who had come to Bangalore in March 2012, had taken the daughter to Coorg for summer vacation as has been the practice ever since the petitioner and the children had moved to Bangalore and further understanding was that the petitioner should have brought back the child from Coorg by the end of May to enable her to continue her education at Bangalore and to live with the petitioner.
It is averred that this arrangement was not kept by the third respondent and petitioner learnt that the third respondent was refusing to send the their daughter back to Bangalore and on the other hand, he had pressurised her to go and stay in Coorg. It is further alleged that unless she agrees for this arrangement, the daughter of the petitioner will not be given access to the petitioner and the girl will be admitted to a school in Coorg.
Efforts on the part of the petitioner to go and meet her daughter in the house at Coorg did not fetch the desired result because the third respondent and other family members prevented the petitioner to meet the child. Later on, the petitioner came to know that the third respondent has illegally and without the transfer certificate from Bangalore school, had got admitted their daughter to Coorg Public School, Gonicoppal. Efforts on the part of the petitioner to get back her daughter having failed, present writ petition on the averment that the daughter is kept in illegal custody against her wishes etc.
Notice had been issued to the respondent, while respondent Nos. 1 and 2 are represented by Sri H.S. Chandramouli, learned State Public Prosecutor and the third respondent has entered appearance through Counsel Sri B. Anand.
As per the directions of this Court, the third respondent appeared before the Court on 25.07.2012 along with the younger daughter Vidhushi. The proceedings on 25.07.2012 are reflected as under:
Third respondent has appeared before the court along with his younger daughter Vidushi.
We have questioned the child in the court hall also and she has given answers very satisfactorily. As of now, she does not appear to be under any pressure or coercion. The child did express that she would like to have her parents come together, live together and take care of her together.
It is for the parents to give a thought to the ardent desire of their daughter and workout an arrangement.
Ms Pramila Nesargi, learned senior counsel appearing for the petitioner submits that the petitioner-mother had made arrangements for the admission of the child at the Bishop Cotton girls school at Bangalore and had paid necessary fee etc. Copies of fee receipts are produced and handed over to Sri B Anand, learned counsel for third respondent.
It is for the father to look into these matters and act in the best interest of the child and also to decide as to whether it will be in the interest of the child to get her admitted to the Bishop Cotton girls school, at Bangalore.
We do not like to pass any orders in this regard, to compel one parent or the other to act in a particular manner while exercising writ jurisdiction, more so for issue of a writ of habeas corpus.
Registry is directed to list this matter for further orders on 14-8-2012.
In this background, the matter is listed for further orders today before the Court, we have heard Smt. Pramila Nesargi, learned senior counsel for the petitioner and Sri B. Anand, learned Counsel appearing for the third respondent. While the petitioner is present before the Court, third respondent is not.
Counter affidavit has also been filed on behalf of the third respondent. It is not necessary to go into further details, which only indicates the differences between the petitioner and third respondent, but suffice to dispose of this petition with the observation that it is open to the petitioner to move the family court if so advised for securing the custody of the child by the third respondent.
We would not like to exercise jurisdiction for such purpose, while examining a writ petition for issue of a writ in the nature of habeas corpus and particularly, as we cannot characterise the custody of the daughter with the father as illegal custody.
However, Smt. Pramila Nesargi, learned Senior Counsel submitted that the daughter, whose custody the petitioner is seeking and as averred in the petition that she is under forceful and illegal custody of the father, she is of tender age and being a girl child requires the company and protection of the mother and therefore, the child should be separated from the mother and it is obvious that the third respondent is pressurizing the child to stay with him against her wishers etc.
As in the best interest of the child, whether she should stay with the mother or she can be taken care by the mother or she can be permitted to stay with the father and the girl can be taken care by the father, it is a matter within the domain of the family court. Therefore, without expressing any opinion on this aspect and without prejudice to the rights and remedies of the petitioner before the appropriate forum, this petition for issue of writ in the nature of habeas corpus is declined. It is open to the family court to look into all the aspects of the matter and the petitioner is at liberty to move the family court.