1. Mathura Ram respondent is the husband of Mt. Sheo Kumari appellant. It appears that he instituted a suit against his wife for restoration of conjugal rights and the suit was decreed. Mt. Sheo Kumari appealed, but her appeal was dismissed by the Subordinate Judge of Ghazipur and a second appeal met the same fate in the High Court. On the day succeeding the date on which his suit was decreed by the Munsif, Mathura Ram applied under Section 25, Guardians and Wards Act, that Mt. Sheo Kumari be restored to his custody. She was living with her parents and according to his allegations she was a minor of 16 years of age. Mt. Sheo Kumari objected through her mother on the ground (1) that she had attained majority and therefore no order could be passed in respect of her under the Guardians and Wards Act (2), that Section 25 was inapplicable in view of the fact that Mathura Ram had not been appointed her guardian by the Court and (3) that her father and mother were under no obligation to hand her over to Mathura Ram. The District Judge allowed the application and directed that Mt. Sheo Kumari be handed over to the custody of her husband Mathura Ram. It is against that order that the present appeal has been filed.
2. Three points have been taken before me in this appeal. In the first place, it is contended that a husband who has obtained a decree for restitution of conjugal rights is not entitled to have recourse to the provisions of the Guardians and Wards Act: his only remedy is to execute his decree against his wife. In support of this proposition, I am referred to the case of Asi Bai v. Girdhari Ram 1921 Lah 68 in which a learned single Judge expressed the opinion that the provisions of the Guardians and Wards Act should be put in force in order to enable a husband to get possession of the person of his wife; but the reasons upon which that opinion is based are not disclosed in the judgment. It is not suggested before me that Mt. Sheo Kumari has any property and therefore it is obvious that if Mathura Ram executes his decree under Order 21, Rule 32, Civil P.C., it will be infructuous. It seems to me that Mathura Ram has two capacities in which he can act. In his capacity as decree-holder he is at liberty to take out execution of his decree for whatever it may be worth and in his capacity as natural guardian of his minor wife he has a right to apply for her custody under Section 25, Guardians and Wards Act. I can see no reason why the fact of his having a decree for restitution of conjugal rights against his wife which cannot be effectively executed should preclude him from seeking a remedy which is otherwise open to him at law under Section 25, Guardians land Wards Act.
3. The second point which is argued before me is that the lower Court's finding, that Mt. Sheo Kumari was still a minor, is not correct. It appears however from the judgment of the Court below that the plea to the effect that Mt. Sheo Kumari had attained majority was only taken half heatedly in that Court, and the reason for this is obvious. The judgment shows that no such plea was taken by her or her parents in their objection to the application of Mathura Ram; on the contrary Mt. Sheo Kumari was actually described therein as a minor. She was also described as a minor girl of 14 years of age in the memorandum of appeal which was filed against the decree of the Munsif in the suit for restitution of conjugal rights. Learned Counsel for the appellants has not been able to show me that there is any evidence on the record to show that Mt. Sheo Kumari had attained majority on the date on which the application was presented; and the admissions above referred to clearly indicate the contrary, The last plea taken is that Section 25 of the Act does not apply inasmuch as it is admitted that Mt. Sheo Kumari did not leave and was not removed from the custody of her husband. This point has given me some difficulty, but I think that it is concluded by authority. In Ulfat Bibi v. Bafati 1927 25 ALJ 585, a Mohamedan father applied for the restoration of his minor child who was in the actual custody of the mother. When the child had reached the age of seven, the father was entitled at law to his custody, but the mother refused to-hand him over and a Bench of this Court held that the father who constructively had the custody of his child was entitled to have the child restored to him under Section 25. In Mt. Siddiqunnissa Bibi v. Nizamuddin Khan 1932 All 215 a more or less-similar view was expressed by a Bench of this Court. In that case the mother of the child died a few days after her confinement and there after the father took the girl and put her into the custody of her maternal grandmother. When the father applied for the custody of the child, it was held by the Court that he was entitled to put an end to the maternal grand-mother's custody of the girl and to claim restoration of the girl as legal guardian under the Mahomedan law; and Sulaiman, Ag. C.J., observed:
The refusal of the grandmother to hand over the child amounted to a removal from the constructive custody of the father. In these circumstances Section 25 applies....
4. The same view has been taken by the Madras High Court in various cases. In Mohideen Ibrahim Nachi v. Mohomed Ibrahim Sahib 1917 39 Mad 608 it was held that a father can apply under Section 25, Guardians and Wards Act, for the custody of his minor son though the minor had all along been in the custody of his grandmother, but never in the custody of his father. At p. 616 Napier, J., observed as follows:.And I cannot read Section 25...as limiting, his powers of enforcing his right to the extreme-cases of leaving or removal. In my mind those words must be read to include cases where the custody at law is in a certain person but the minor refuses to go or is detained. The cases where the Court has strained the language of a section to give effect to other provisions and the policy of the Act will be found in Maxwell on Interpretation of Statutes and Halsbury's Laws of England, In my opinion this a is case where It may properly be done.
5. In Raghavaiya v. M. Lakshmiah 1925 Mad 398 a similar view was taken and the case of Mohideen Ibrahim Nachi v. Mohomed Ibrahim Sahib 1917 89 Mad 608 was approved. Jackson, J., observed that,
A ward who was never in the actual custody or charge of his father may be deemed to be removed from his custody when the person in actual possession repudiates to the father's knowledge the right of the father to the actual custody of the minor.
6. Similarly in Tatamma v. M. Veeraju 1930 Mad 19 it was held that even where the minor had never been in the custody of the guardian, in order to make the Act workable, a fiction must be imported into Section 25 whereby it is deemed that the child has been constructively in the guardian's custody and has left it. There can be no doubt that if Section 25 is to be literally interpreted, there will be some difficulty in a case like the one before me; but from the authorities which I have cited above, it is clear that this Court and the Madras High Court have expressed the opinion that in order to render the provisions of this section workable and in order to prevent it being ineffectual in cases where reason demands that it should operate, the words of the section must be given a more liberal interpretation than they are literally entitled to. I have not been referred to any authority of any other High Court. The position therefore is this: that when a person who has the actual custody of a minor refuses to hand over the said minor to the person who has the constructive custody and the lawful right to actual custody then there has been a 'removal' within the meaning of Section 25 of the Act. For the reasons given above, this appeal fails and it is dismissed with costs. The stay order is discharged.