1. This first -appeal is against the judgment and order passed by the Assistant Judge, Akola in Misc. Civil Application No. 57 of 1976 declaring and appointing petitioner as the guardian of minors Mohamed Races and Waheeda Begum, and also directing the return of the minors to the guardian declared by his orders.
2. An application for appointment of herself as guardian and for the custody or returning the minors to her custody was filed by Shamin Banoo against her husband Mohomed Shafi under Ss. 7 and 25 of the Guardians and Wards Act. She alleged therein that she was married to Mohomed Shafi and bore three children from respondent Mohomed Shafi, namely, Mohomed Races whose age was given as 4 years, Waheeda Begum, whose age was given as 21/2 years and Farooque who was aged 11/2 years at the time when this application was presented. She then stated that she was given very cruel treatment by the respondent who wanted to marry another woman and drove her out, and at that time snatched Mohomed Raees and Waheeda Begum from her. Farooque was then only a month old and was allowed to be re-rained with her. She, therefore, filed this application for custody or return of the custody of the minors to herself, namely, Mohomed Raees and Waheeda Begum and for appointment of herself as the guardian under Section 7. She also stated in the application that the respondent has married Sajjidabegum after the petitioner was driven away and that the respondent and his newly married wife are living together along with the minors who were, according to her, treated cruelly by the wile, step-mother and the respondent.
3. The respondent filed his written statement to this application arid denied that the petitioner was driven away and was treated cruelly. He claimed that he was the natural father of the minor children whose ages were not disputed and was, therefore, entitled to their custody. He contended that the petitioner was divorced by him on 7th Nov., 1975 and that she was a woman of suspicious character and had connections with others and used to leave the house of the respondent at night in the company of somebody secretly; that she has left him with a view to carry on her affair with her boy friend. In these circumstances and also under the personal law to which the parties belong, namely, Mahomedan Law, he claimed that he was entitled to the custody of the children and was the proper and legal guardian of the minors. It is his claim that the application is motivated by the proceedings which she has commenced under Section 125 of the Code of Criminal Procedure against him. He did not deny that he has married a third time, but denied that either the minors were given cruel treatment by him or his new wife. Lastly, he contended that the minors are being properly looked after and that the petitioner who is staying with her father has no means of income as also her parents which could be sufficient to bring-up these minor children; that they would be practically starving whereas the respondent has sufficient earnings of his own; that there are other members in his family who come to him and look after his children by the petitioner.
4. At the hearing of the application, the parties filed a joint pursis Exhibit-9 stating that evidence in the case may be received by affidavits. Accordingly, on behalf of the petitioner affidavit was filed by the petitioner and of two other persons. On behalf of the respondent, affidavit was filed of himself and also of one Shaikh Kadir. Upon consideration of these affidavits and the arguments which were advanced before the learned Assistant Judge who heard the application, the learnedAssistant Judge came to the conclusion that the application was maintainable and that it was necessary to appoint the petitioner as a guardian of the minors and also to direct the return of the minors to the custody of the guardian. In that view, he appointed the petitioner as the guardian of the minors and also directed their return to the petitioner. Incidentally, it may be stated that though in the written statement filed by the respondent no contention was urged in regard to the maintainability of the application, considerable arguments seem to have been advanced and they seem to have become a most debatable ground before the learned Assistant Judge in the application.
5. It is against this order and judgment of the Assistant Judge that the present first appeal is filed. Mr. Sohoni who appeared for the appellant-respondent raised before me a large number of contentions. The first contention which Mr. Sohoni urged, was that the father being the legal guardian and a person entitled also to the custody of the minors, considering the personal law which is applicable to the parties, the Court was wrong in appointing the petitioner as guardian. In any event, it was Mr. Sohoni's contention that before a person, other than the father, could be appointed as a guardian or a person in law entitled to be appointed as guardian, the Court ought to record a finding that such person was not fit person to be appointed as guardian and unless such a finding is recorded, the Court does not get jurisdiction to appoint any other person as a guardian. The right to be a guardian continues in favour of a person who, in law, is deemed to be a guardian, unless removed by the Court and the Court can remove a person from his legal position as a guardian only where the Court is of the opinion that such a person is not fit to be appointed a guardian.
6. Mr. Sohoni also contended that the learned Assistant Judge was in error in receiving the evidence by affidavit which it was necessary to be recorded in the case. He contended, though the parties filed joint pursis saying that the evidence may be received by affidavits, that would not confer jurisdiction upon the Assistant Judge to do so. Besides, according to him, even if the parties consented to an illegality, namely, in this case by permitting evidence by affidavits, the Court could not and ought not to allow this illegality to be perpetrated. Since this is an appealable order by Section 47 of the Guardians and Wards Act, it was Mr. Sohoni's contention that evidence by affidavits could not be received.
7. The third, and more substantial, contention which was urged by Mr. Sohoni was that an application under Section 25 of the Act for return of the minors, particularly by the wife, was not maintainable, where the parties belong to the Muslim faith. He urged firstly that the father was the guardian at all times and that the father was also entitled to the custody of the minors. The custody of a wife during a certain period of years under the Mahomedan Law was not custody as a guardian and the father's custody may be-constructive, though in certain circumstances, may not be actual as for instance, where according to him, the mother has gone away with the permission of the father with the children, the constructive custody will continue. Mr. Sohoni, therefore, contended that mere custody of the minors, may be physical custody and not constructive custody, would not entitle a person to make an application for return of the minors under Section 25.
8. Alternatively, Mr. Sohoni also contended that in this case on the facts established, since the actual custody was never with the petitioner, it could not be said, both in law and on the basis of contentions which he urged in support of his first contention and otherwise, that the minors were removed from the custody of the guardian. It was Mr. Sohoni's contention that the definition of the word 'guardian' in Section 4(2) of the Guardians and Wards Act may apply only to cases where the person making the application was entrusted with both the care of the minors as 'well where actual custody is entrusted. It was, therefore, Mr. Sohoni's serious grievance and contention that the Court was wrong in holding that the application was maintainable.
9. Mr. Sohoni heavily relied upon a decision of the Allahabad High Court to which a reference was made also by the lower Court in Hasmat Ali v. Suraya Begum : AIR1971All260 . He also placed reliance on the rules framed by the Bombay High Court for conduct of enquiries under the Guardians and Wards Act. Further Mr. Sohoni contended that the Court was wrong in relying upon the Kerala High Court decision in preference to that of the Allahabad High Court and further that the decision reported in Noshirwan v. Sharoshbami AIR 1934 Bom 311 upon which the Kerala High Court relied, is in conflict with the later decision of the Bombay High Court reported in Shivawa v. Chenba-sappagowda AIR 1941 Bom 344. It was Mr. Sohoni's submission that the later judgment of the Bombay High Court overrules thisearlier judgment reported in Noshirwan's case AIR 1934 Bom 311.
10. It will be convenient to refer to the provisions of the Guardians and Wards Act before proceeding to deal with the arguments advanced by Mr. Sohoni in support of the appeal. The application of the petitioner is under Sections 7 and 25 of the Act. Section 7 empowers the District Court to appoint a guardian of a minor's person or property, or both, or to declare such a person to be a guardian and also by implication removal of any person as a guardian. Section 25, on the other hand, deals with the custody of the minors and empowers the Court to make a direction for the return to the custody to the guardian of a minor or ward where the Court is of the opinion that 'it will be for the welfare' of the ward to return to such custody and where the ward has been removed from the custody ot the guardian of his person. Section 7, therefore, as I pointed out, empowers the appointment of a guardian of any person who in the opinion of the Court is a fit person to be so appointed, The power which is conferred, however, upon the Court under Section 7 is controlled by the provisions of Section 19. That section lays down:
'Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor. . . .or to appoint or declare a guardian of the person. .. .(b) of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor.'
11. Both Sections 7 and 19 of the Act are in Chap. II. Therefore, the power which is conferred under Section 7 to appoint a guardian is deemed to be controlled by the provisions of Section 19 disentitling a Court to appoint or declare a person a guardian of a minor, unless in the case of a minor whose father is living, the Court conies to the conclusion that such father is unfit to be a guardian of the person of the minor. A reading of the order passed by the learned Judge as also the points raised by him for determination show that the learned Judge has overlooked the provisions of Section 19 and has not considered the question whether the respondent was an unfit person to be appointed as a guardian.
12. It may also incidentally be pointed out that the petition also does not say why the father of the minors should not be continued in his legal capacity as a guardian. Except for making allegations against the respondent of cruelty or of cruel treatment to the minors, there is no other reason alleged, and it is not suggested or said, as to why therespondent who is the father and in law entitled to remain the guardian should be removed from his capacity as a guardian or is otherwise unfit. Even the allegation in regard to the cruelty has not gone to the extent of saying that on account of the cruelty which the respondent has been practising towards his son and daughter, he has rendered himself unfit to be continued as a guardian. The allegation of cruelty, besides is vague and does not say in what manner the children are cruelly treated. In the circumstances, the order passed by the learned Assistant Judge appointing the petitioner and declaring her to be a guardian of the minors Mahomed Races and Waheeda Begum would not be sustainable and will have to he set aside.
13. The main controversy, however, iu this case obviously related to the custody ot the minors and considerable argument was advanced before me and appears to have been advanced before the learned trial Judge to contend that no relief under Section 25 could be awarded and in the circumstances was called for. Mr. Sohoni reiterated his contention that the evidence in tin's case ought to have been recorded. Mr. Sohoni submits and urges that evidence must be received orally by the Court before it and recorded by it and evidence by affidavits cannot be allowed. According to Mr. Sohoni where it is a case of considering whether a guardian should be removed and whether a person like a father is unfit to be appointed a guardian, or a person who applies for being appointed as a guardian should be appointed as a guardian or otherwise and in cases under Section 25, evidence must be received. He urged that Rule 4 of the Bombay High Court rules framed under the Guardian and Wards Act required that in cases where the application is opposed the applicant must be examined as also the proposed guardian. Mr. Sohoni, therefore, contends that failure to examine the applicant in this case has brought about an infirmity in the entire procedure and illegality which is incurable. According to him, therefore, even if the enquiry is also for the Purposes of Section 25, there ought to be oral examination and the Court could not receive affidavits.
14. Rule 4 undoubtedly says that the Court may in its discretion proceed upon affidavits where the application is not opposed. But in other cases Rule 4 says that 'except for reasons to be recorded examine the applicant and the proposed guardian'. Now no reasons admittedly have been recorded. But if we see Rule 4 and the rules which precedeRule 4, namely, Rules 1 to 3, then it will be seen that the reference to recording of evidence and the-application not being opposed under Rule 4, is to applications under Section 10 for the appointment or declaration of a guardian. In other words, Rule 4, in my opinion, applies to applications under Section 7, therefore, where the question which the Court has to decide is of the competency and fitness of the person praying for being appointed as a guardian and the Court has also to consider whether the guardian who is already, appointed or in law is entitled to be a guardian, is unfit to be continued as guardian and requires to be removed. That will also be clear from the reading of the latter part of Rule 4.
15. Mr. Sohoni contended that affidavits could be received in evidence only where the Civil P. C. applies. It was O. XIX of the Civil P. C. which permits a fact to be proved by affidavits and so also according to him, in cases where a' appeal is provided evidence by affidavit should, as far as possible, not be received. It was fairly conceded that the Guardians and Wards Act does not prescribe Civil P. C. in the matter of enquiries into applications under that Act. As to what an application for the appointment of a guardian under Section 10 must contain is laid down by that section. And though at one time it was tried to be suggested that the Civil P, C. would apply, that argument was given up when it was realised that the reference to Civil P. C. in Section 10 was only for the purposes of signing and verifying the petition.
16. It seems clear that no specific procedure has been prescribed under the Guardians and Wards Act for governing the enquiries under any of the sections of that Act. It is Section 11 which makes a reference to any procedure and says that where the Court is satisfied that there is ground for proceeding on the application, then if shall fix a date for the hearing .thereof. Then Section 13 says that on the date fixed for hearing, the Court shall hear such evidence as may be adduced in support of or in opposition to the application. It was, therefore Mr. Sohoni's contention that the evidence contemplated in Section 13 is evidence received by the Court and not tendered before the Court in the form of affidavits. The only evidence, therefore, according to Mr. Sohoni which could be received and acted upon is the evidence recorded in Court and inasmuch as no such evidence had been recorded by the Court, there was a grave irregularity, in the procedure which was followed, resulting in miscarriage of justice. I do not think that this contention is sound.
17. The procedure which is required to be followed, as I pointed out, is not specified in the Act and Section 11 merely says that where the Court deckles to proceed with the application, i.e., whether the application is not on the lace of it barred or cannot be considered and has to be proceeded with, it shall fix a date for hearing and then give notices to certain persons and to the State Government as mentioned in the following Sub-clauses of Section 11, Sub-section (1). Here again the reference is that the notice of such hearing of the application has to be served iu the manner prescribed in the Civil P. C. If the Civil P. C. was intended to be made applicable for all enquiries or proceedings under the guardians and Wards Act, either by the rules or by the Act itself, then it seems to me that the Legislature could have provided as also the High Court that the provisions of the Civil P. C. would apply as far as is possible to enquiries and proceedings under this Act. That has not been done. The argument, therefore, based upon failure to follow the procedure of the Civil P. C. need not be considered. It seems to me that Section 11 permitted the Court to prescribe and follow its own procedure. While doing so it may adopt the Civil P. C. for the purposes of convenience and facility. But it does not mean that any other procedure which would be equally conducive to meet the ends of justice cannot be followed.
18. As contemplated by Section 13, evidence has to be led in support of the application; in other words, in order to establish the facts alleged in the application. As to in what manner the fact can be established is properly laid down by the Evidence Act. But the Evidence Act, by itself, is not applicable to affidavits. The rules of evidence deal with the admissibility of certain type of evidence and the manner and mode of proving certain things and facts, it docs not say that evidence is that recorded before a Court. In this particular case the parties agreed to prove facts and adduce evidence by way of affidavits. If the Court acted upon the pursis and thought that such evidence was adequate and good in the circumstances, it seems to me that no exception could be taken to that procedure except perhaps in the case of an enquiry under Section 7 for the purposes of holding whether the person is or is not a proper or fit person to be appointed as a guardian. It does not lie in the mouth, in my opinion, of the appellant in the present case having allowed the Court to think, and the other side, that the evidence by affidavits would be sufficient and would be adequate, now to com'plain that the evidence in this manner should not have been received. Having allowed the evidence by way of affidavits to be led, it would not now be permissible for the appellant to urge that evidence ought not to have been received by affidavits. Besides, I am of the view that an enquiry under Section 25, which for all material purposes of this appeal now can be deemed to be only alive, is in the nature of a summary enquiry. I shall presently come to Section 25 and point out the questions which are germane to an application under Section 25 and which circumstances have to be proved by the applicant essentially arise, are limited and few. They are not far-reaching and the overriding consideration of the Court has to be one of welfare of the minor. If if is in the interest of the minor and if it was for the welfare of the minor then the Court is entitled to make an order for the custody of the minor as is permitted under Section 25. Such custody cannot be said to be at all times to come and the orders passed therein are by their very nature interlocutory and for the lime being. As circumstances changed, these orders would always be revisable. In the case of an application for appointment of a guardian, different considerations would arise. An order passed appointing a guardian and declaring a person to be a guardian and removing the person by implication from guardianship are by their very nature orders of longer duration. They would remain good as long as the minor docs not attain majority. Therefore, a distinction has to be made, in my opinion, in matters of enquiries for the appointment of a guardian and matters for handing over of the custody of the minors. In such enquiries evidence by affidavits may be permitted. Where the parties agree that such evidence should be led by affidavits, then it seems to me that it would be impermissible at a later stage for the same party to urge that that evidence should not have been received by affidavits and is not legally permissible to be received in that manner. That disposes of most of the technical contentions which were raised on behalf of the appellant by Mr. Sohoni.
19. Turning to the provisions of Section 25 and Section 4 it would be seen that Section 25 permits a guardian to make an application to the Court where the minor is removed from the custody of such guardian, and order the return of the minor provided it is, in the opinion of the Court, in the interest and welfare of the minor to do so. Four things, therefore, clearly are necessary before an application under Section 25 can be entertained. Firstly,the application must be by a guardian of the person of the minor. Secondly, the guardian must have had the custody of the minor. Thirdly, the minor must have been removed from such custody of the guardian and lastly, it must, in the opinion of the Court, be for the welfare of the minor to return the custody to the guardian.
20. The word 'guardian' is defined in Section 4(2) of the Guardians and Wards Act, and defines 'guardian' as a person 'having the care of the person of a minor' so far as we are concerned in the present case. In other-words, for the purposes of attraction of Section 25 of the Act, the guardian is a person who has the care of the person of the minor. In the Mahomedan Law, the father is always the guardian of the minor. The definition of 'guardian' in Section 4(2), however, does not incorporate and say that by word 'guardian' what is meant is a legal guardian, either under the personal law applicable to the parties, or the guardian appointed by a Court. If that was the intention, of the Legislature, then we would have found the definition of the word 'guardian' in Section 4(2) to be reading something like this; 'Guardian' means a person, who, in law, is entitled to be a guardian of the person of the minor. Now such a person need not be and may not always have the care of a person of the minor. If that be so, applications as contemplated under Sections 7 and 17, could never have been made. A person, therefore, having the care of the person of the minor embraces a category of persons much larger than the legal guardians or certificated guardians. The definition, therefore, of the word ''guardian' as employed in Sub-section (2) of Section 4 is wider than a legal guardian according to the personal law applicable to the parties.
21. Mr. Sohoni wanted to urge that the words 'having the care of the person' must mean both 'having the custody of the minor' and 'having the care of the person of the minor'. He fairly conceded that unless that person had the care of the minor, mere custody would not be able to bring him within the definition of the word 'guardian' as employed in Section 4. It is commonplace that mere physical and actual custody of a minor would not confer, and is not contemplated or intended by the Act, to clothe such a person with the necessary requisite desire and intention to make an application under Section 25, unless he had also the interest of the minor or the ward to his heart. The words 'the person having the care of the minor*', therefore, in my opinion, indicate a qualitative aspect inrelation to the minor than a mere physical aspect. What Mr. Sohoni however contended was that both the physical as well as the qualitative attitude in regard to the minor's welfare, must co-exist and unless that was so, it would not be possible for a person to make an application under Section 25.
22. In this connection, Mr. Sohoni firstly referred me to the allegations in the application and the affidavit. He urged that the petitioner in this case never had the actual physical custody of the minor and it cannot further, according to him, therefore be said that the minors were removed from her custody to entitle her to make an application under Section 25. He referred me to para. 3 of the petition which says that the respondent drove out the petitioner and snatched from her the minor son and daughter, namely, Mohomed Races and Waheeda Begum. Mr. Sohoni, therefore, urged that at the time when the petitioner and the respondent were staying together, the custody of the minors, both physical as well as constructive, could not he said to be that of the petitioner. That at the very time when the petitioner left or was driven out of the house of the respondent, the petitioner lost the physical custody of the minors. Since, therefore, she could not be said to be while she was under the roof of the respondent either in physical custody or having the care of the minors as long as the respondent was available, it could not be said according to him. that the petitioner either had the physical custody or the care oi the minors at any time when the petition was presented. These circumstances, only according to Mr. Sohoni confer jurisdiction upon the Court, and are jurisdictional facts, to order return of the minor under Section 25. Since they do not exist, it was his case, that there was no jurisdiction to make the order which was passed.
23. The right of a Mohamedan female in regard to guardianship of the minors and their custody is to be found dealt with in para. 352 of Mulla's Mahomedan Law. Eighteenth Edition page 367. As regards the guardianship, the father under that law is the only person entitled to be the guardian and the mother is not mentioned as one of the persons entitled to be a guardian of minor's person or property. The question of custody, however, is another matter and the law lays down that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberry. The right continues though she is divorcedby the father of the child unless she marries a second husband when the right to custody goes to the putative father. In this case it is not disputed that the petitioner has not married a second time. It is also the case of the respondent that he has divorced the petitioner. I have already given the ages of the minors Waheeda Begum and Mahomed Races. It cannot, therefore, be disputed that according to the personal law applicable to the parties, the petitioner was entitled to the custody of both the minors.
24. Now this custody to which a Maslim mother is entitled is even during the coverture and not only subsequently until she marries a second time. It the mother is not available or she cannot have the custody then as laid down in para 353, the custody goes to other female heirs, but does not go to the father and that right of custody of a female mother is defeated, only as laid down under para 354. The father's right to the custody arises only after the mother and the female relations laid down in paragraph 353 are unavailable.
25. It will thus be seen that even during the marriage the custody of the minor children in case of a boy until he attains the age of 7 years, and in the case of a female until she attains puberty is with the wife. The intention in conferring this custody upon the mother is obviously that she could (take) better care for the children than the father. It is significant that failing the mother also the father is-not the next preferential custodian, but other female relations. It seems to me, therefore, quite clear that so far as the personal law of Muslims is concerned, the right of the father to the custody of the child is deferred, and the primary right is in the mother and in the absence of the mother in other female heirs. This can be explained only on the basis that it is in the interest of the minor and, that it is these female relations or the mother who are capable of looking after the minor properly. In other words, therefore, as long as the right to custody is with the mother, the mother is deemed to be also having the custody and care of the minor. If that is so it seems to me that the mother during the period laid down by the Mahomedan Law has both the custody and the care of the minor as long as she is not disqualified from retaining the custody of the minor. If that is so, then at the time when the petitioner left the respondent's house either because she was driven away, as she says, or as the respondent says, she went of her own, she was deprived of the custody of her minor children Mahomed Races andWaheeda Begum. Mr. Sohoni, therefore, is not right in contending that the petitioner neither had the custody nor as he contends, was a guardian entitled to make an application.
26. Mr. Sohoni relied principally upon the judgment of the Allahabad High Court reported in Hasmat Ali v. Suraya Begum : AIR1971All260 . That is also a case under Section 25 for return of the custody of the minor who was four years old. The question which his Lordship Sahgal raised for determination was whither 'the right of hizanat amounts to the taking away of the right of the father i. e. whether the father ceases to lie the guardian of his minor children among the Mabomeda is so long as the male child docs not attain the age of 7 years and the female the age of puberty.' He also held that that docs not so happen, relying upon the earlier Allahabad decision, an Oudh decision, holding that 'Hizanat is a mere custody for the rearing up of the child, the guardianship remaining in the natural guardian who happens to be the father'. He distinguished two other Allahabad decisions in Mt. Sakina Begam v. Malka Ara Begam : AIR1948All198 and Haidri Begam v Jawed Ali Shah : AIR1934All722 as being decisions for appointment of a guardian under Section 7.
27. The principal ground on which the decision is based seems to be, to extract the words of his Lordship, as follows :--
'Section 4(2) uses the word 'care' and not ''custody' and 'care' is different from 'custody' though the two words may be used synonymously also as they seem to have been used by Sulaiman Acting C. J., in his judgment. . . .'Care' is a wider term than 'custody', Custody is only the physical keeping while care amounts to looking after. The mother may have been in the custody of her minor son at one time which custody has been taken away by the father and she may under the law of hizanat be entitled to the custody of the minor so long as he does not attain the age of seven years but she is not the guardian and under Section 25 of the Guardians and Wards Act she is not entitled to the custody being restored to her.'
28. It will thus be seen that according to his Lordship, the custody which is granted to the mother under law does not carry with it the obligation apparently of care and though the mother may be having the custody of the minor, it seems to be felt that she does not at the same time have the care of the minors. If that were not to be so, it is difficult to follow the reasoning that the motherif she has both custody and the care of the minor, as his Lordship says 'is not the guardian and under Section 25 of the Guardians and Wards Act, she is not entitled to the custody.'
29. I have already referred to the definition of the word 'guardian' appearing in Section 4(2) of the Act. That section, as I pointed out, does not refer to legal guardians, but to certain facts which confer the status of a guardian upon such a person. As is defined in Sub-section (2) of Section 4 of the Act, 'guardian' is a person who has the care of a minor. This will necessarily pre-suppose, and may be irrespective of the question whether that person is or is not a legal guardian. It may be that he would be a legal guardian also in which ease the two concepts may coincide and bestow a higher preferential right. But for purposes of the Guardians and Wards Act and for purposes of Section 25, the Guardians and Wards Act does not seem to insist or require, that it would not be enough for the person to have the care of the minor but also that be must be a legal guardian. It seems to me with respect that his Lordship read more into Section 4(2) and the requirements of Section 25. I am unable to follow this line of reasoning, particularly since it seems to me that if the Legislature wanted to exclude all persons who were not legal guardians from making an application under Section 25, it was very easy to do so by either incorporating such limiting words in Section 25 or Section 4(2) of the Guardians and Wards Act itself. It seems to me that the Legislature has advisedly not done so and has used a wider expression as a person having the care of the minor.
30. In this connection, a reference may be made to the judgment of Chief Justice Sulaiman to which a reference was also made in the judgment of Mr. Justice Sahgal in the case referred to above. Siddiqunnisa v. Nizamuddin : AIR1932All215 was a case under Section 10 read with Section 17 and Section 25 of the Guardians and Wards Act. The child in that case was all along with the grand-mother (mother's mother) from the time of its birth. She filed an application for her being appointed as a guardian. In view of the provisions of Section 19 it was held that the father not being unfit, the grand-mother could not be appointed as a guardian by virtue of Section 19. The father simultaneously made an application for the return of the minor which application was granted by the Court below. It was against that order that an appeal was filed. Dealing with Section 25, his Lordship observed:
'The personal law has been abrogated to the extent laid down in the Act, where however the personal law is not in conflict with any provision of the Act, it cannot be deemed to have been superseded.'
These observations clearly go to indicate that it' there is any conflict or inconsistency between Section 4 of the Guardians and Wards Act and the provisions of the Mahomedan Law applicable to the parties, then it is the; provisions of the Guardians and Wards Act which will prevail over the personal law. Construing the definition of the word 'guardian' in the said Act, his Lordship further pointed out :
'Thus the word ''guardian' is used in a very wide sense and does not necessarily mean a guardian duly appointed or declared by the Court. Any person who has the care of the person of the minor is a guardian of the person and any person who has the care of the property of the minor is a guardian of the property.'
Then his Lordship observed alter dealing with the case in Imambandi v. Mutasadi AIR 1918 PC 11 and considering the arguments in regard to the right to custody of the mother. Though therefore the father is the natural guardian and is also a legal guardian, the word 'guardian' as defined under the Guardians and Wards Act, employs a wider definition and wider expression to include any other persons who are legal and natural guardians, and also at the same time, the person, having the care of the minor. He observed :
''Any person who has the care of the person of the minor is a guardian of the person, and any person who has the care of the property of the minor is a guardian of the properly within the meaning of this Act.'
31. The learned trial Court relied upon a decision of the Kerala High Court reported in M. A. Azees v. M. Mymoomunma 1971 Ker LJ 361. This judgment would go to show that the decision which was arrived al is based upon a decision of the Bombay High Court reported in Noshirwan v. Sharoslibann AIR 1931 Bom 311 and not following the decision in Siddiqunnisa v. Nizamuddin : AIR1932All215 . Besides Mr. Sohoni contended that this view in Noshirwan v. Shir roshbitnu (supra) has been either modified or impliedly overruled by subsequent decisions of our High Court in Shivawa v. Chen-dasappagowda AIR 1941 Bom 344. Mr. Justice T.S. Krishnamoorthy Iyer extracted ft portion from the judgment of Chief Justice Sulaimau dealing with Section 25 and observed.
'If the definition of 'guardian' under the Guardians and Wards Act can include persons who are entitled to legal custody of a minor child the fact that the child is taken away by the natural or legal guardian of the person of the minor duly declared or appointed by the court cannot leave the 'guardian' entitled only to legal custody of minor without any remedy under Section 25(1).'
He felt that these observations of Sulaiman C. J. are merely obiter. The observations of Chief Justice Sulaiman to which a reference is made, to my mind, deal with the significant requirement of Section 25, namely, the removal from the custody, of a guardian arid though I would not be prepared to say, as observed by Krishnamoorthy J. that these observations are obiter. I would only say that these observations relate to an aspect of, the matter which does not arise in the present case. It may incidentally be said that Sulaiman C. J. in his judgment had referred to the circumstance of the Bombay High Court taking a different view in regard to these provisions in Noshirwan v. Sharoshbanu (supra).
32. I will now turn to the two decisionsreported in Noshirwan v. Sharoshbanu AIR1934 Bom 311 and Shivawa v. Chenbasap-pagowda AIR 1941 Bom 344. In Noshir-wan's case, it was clearly held that the word'guardian' in Section 4 is used in a wide senseand does not necessarily mean a guardianduly appointed or declared by the Court, butincludes a natural guardian or even a de factoguardian. That decision also further held thatthe 'custody' contemplated in Section 25 includesboth constructive custody as well as actualcustody. As I pointed out, this latter aspectof the question does not arise in our case. Itis only this .latter aspect of the question' whichwould be attracted and in regard to whichmay be, it was contended, that the observations in Shivawa v. ChenbasappagowdaAIR 1941 Bom 344 run counter. Those observations are as follows :
'The words are 'If a ward leaves or is removed from the custody of a guardian'. Custody must there mean actual custody; if it means constructive custody, and it be said that the ward is always in the constructive custody of the legal guardian, then the answer is that there is no occasion for making an order, because it has not left such constructive custody.'
This was related to observations in Achratlal v. Chiamanla] : AIR1916Bom107 which was also the basis of the decision in Noshirwan's case (supra). What Mr. Sohoni, therefore, contended was thatthe ratio laid down in Achratlal's case has been differently construed by the two Courts and since what is stated in Shivawa's case -being an observation of the Division Bench, must impliedly be held to overrule the earlier judgment of the Single Judge in Noshirwan's case. I do not think it necessary to deal with this question for two reasons. The case decided in Noshirwan's case (supra) was not cited before the Court. Besides, in that case it was not necessary to consider and the question did not arise whether Achratlal's case : AIR1916Bom107 was correctly decided. All that the Court in that case was concerned with and was dealing with was the requirements of Section 25 and disposing of an argument which could be' raised on the basis of the legal guardian resisting an application for custody under Section 25 by contending that since constructive custody is also contemplated, he must be deemed to be in custody of the minor and, therefore, there is no removal to entitle an order under Section 25. I do not think that there is any such conflict in the two decisions which would mean that the custody must be actual physical custody and not constructive custody. Besides, as I pointed ouS earlier in this particular case actual custody was with the petitioner and it is not necessary to go into the questions whether this could be deemed to be constructive custody of the father and, therefore, there is no such removal from his custody as to entitle him to an order under Section 25.
33. In my opinion, as pointed out, the provisions of the personal law applicable to the parties stand superseded to the extent to which a provision is made and which is inconsistent or contrary to that personal law in the Guardians and Wards Act. If the definition in Section 4(2) is capable of including the person who is not a natural or legal guardian at the moment, but has the care of the minor, then it seems to me that he can maintain an application under Section 25 of the Act. If such an application can be maintained and if the minor was in the custody of such person, as in the present case, a legal guardian cannot say if it is in the interest of the minor and for the welfare of the minor that the custody should be handed over to such guardian as contemplated under Section 4 of the Guardians and Wards Act, that such custody should not be granted. It seems to me, therefore, that it it was in the interest of the minor and for its welfare to award the custody to such guardian as defined under Section 4(2) to him, its custody should be given. It seems to me that even the personal law applicable to the parties in this case recognises the right to thecustody of the mother in spite of the father being a legal and natural guardian during certain period. As I pointed out that could not be upon any other consideration except that the mother is the best person suited to take care of the minor. If that is so, I am inclined to think that she comes within the definition of 'guardian' as contemplated under Section 4. In that view I do not think particularly in the present circumstances any other conclusion can be reached as regards what is in the interest and welfare of the minors.
34. The result, therefore, is that the appeal has to be partly allowed. The order passed by the learned Assistant Judge with regard to the appointment of the petitioner as guardian under Section 7 read with Section 10 of the Guardians and Wards Act is set aside and the matter is remanded to him for retrial in the light of the judgment above and disposal in accordance with law in regard to the claim of the petitioner, to be appointed a guardian in preference to the father. The order passed in regard to the return of the custody of the minor Mahomed Raees and Waheeda Begam is maintained. There will be no order as to costs of this appeal. On receipt of the proceedings the learned Assistant Judge will forthwith call upon the respondent to deliver the minors in the petitioner, failing which he will take such steps as are permitted underlaw. Record be sent immediately.
35. Appeal partly allowed.