1. The order passed by the District Judge at Trichur in Guardian and Wards Petition No. 8/1954 on the file of his Court has given rise to these two appeals. The petitioner Sarada Nayar of Anavangode family in Palghat Taluk, was married to Dr. Vasunni Nair of Manakkampat family in the same Taluk. Their marriage took place on ,1-2-1948. A daughter was born to them on 17-4-1940 and this girl is known by the name of Nirmala alias Ammu. The relationship between Sarada Nayar and Dr. Vasunni continued to be happy only for a short period of 2 1/2 years after which misunderstandings arose between them and by about 1954 their continued residence under the same roof became very difficult.
Dr. Vasunni Nayar who was originally in military service, had been discharged from that service in the year 1947 and at the time of his marriage with Sarada Nayar he was employed as an Assistant Surgeon under the Madras Government and was staying at Madras. Because of this strained relationship between himself and his wife, the latter went back to her parents' house in May 1952. But she was not allowed to take with her the child Nirmala. According to the petitioner, she was told by Dr. Vasunni Nayar that if she wanted to have the child with her, she should move for her divorce from him. It appears that she filed O. P. No. 38/1954 in the District Munsiffs Court at Alathur on 1-6-1954 for a dissolution of her marriage with Dr. Vasunni Nayar. Ext. 1 is copy of that petition.
After she had gone away to her parents house, the first counter-petitioner who is a widowed sister of Dr. Vasunni Nayar, used to stay with him at Madras to look after the affairs of himself and his child Nirmala. The 2nd counter-petitioner is another sister of Dr. Vasunni Nayar, and her husband is the third Counter-petitioner who belongs to Kan-nambra House at Trichur. All these three counter-petitioners have their permanent residence at Kan-nambra House. Early in the year 1954 Dr. Vasunni Nayar became ill and had to undergo treatment in the Madras General Hospital.
Counter-petitioners 2 and 3 who had been to Madras to see him, returned to Trichur in May ,1954 and then Nirmala was also sent along with them by Dr. Vasunni Nayar, so that she may stay on at Kannambra House and may have her education at Trichur. Accordingly, the girl was admitted into the Sacred Heart's Convent Girls' High School, Trichur on 11-6-1954. Ext. N is the copy of the application for admitting her to that school. That application was signed and presented by the third counter-petitioner as the local guardian of Nirmala. The evidence in this case is to the effect that the girl attended that' School up to 20-9-1954,
That fact is sworn to by P. W. 2 who is a Sister attached to that Convent. In the first week of September 1954 Dr. Vasunni Nayar came to Trichur in connection with the Sradha of his mother. While staying there the disease from which he was suffering took a dangerous turn and so he went back JoMadras on 26th of that' month and got himself admitted to the General Hospital and there he died on-the next day i.e., on 27-9-1954. Soon after this event, the petitioner wanted to get back the custody of her daughter Nirmala.
But the counter-petitioners were not prepared to give the custody of the child to its mother, the petitioner. The petitioner thereupon filed Guardian and Wards Petition No, 8/1954 in the Trichur District Court on 12-10-1954. The petition was filed under Section 25 of the Guardians and Wards Act and the petitioner's prayer is that the counter-petitioners, who are unlawfully retaining custody of the child, Nirmala, may be ordered to hand over the child to the petitioner who is the natural and legal guardian of the child.
2. The first counter-petitioner remained ex parte, while counter-petitioners 2 and 3 entered appearance and contested the petition. Even though they maintained that Nirmala is not in their custody, but is staying away at Bombay under the protection and' guardianship of the first counter-petitioner who had taken up her residence with her brother Sreekumaran Unni Nair employed as an Income-tax Officer at Bombay, they opposed the petitioner's prayer on all conceivable grounds.
The more important of these grounds are that the Trichur District Court has no jurisdiction to entertain the petition, that the petition under Section.25 of the Guardians and Wards Act is not maintainable in the nature and circumstances of this case, that the first counter-petitioner is retaining custody of the child as per the directions given and the wish expressed by the father of the child, that the child is being well looked after by the first counter-petitioner and that it will not be to the welfare of the child to entrust its custody to the petitioner.
After considering the evidence adduced by the contesting parties, the lower Court came to the Conclusion that Nirmala's ordinary place of, residence was Trichur and as such the Court had jurisdiction to entertain the Guardian and Wards Petition, that at the time of filing the petition the child was in the Custody of counter-petitioners 2 and 3 and that they retained such custody even though the child had been subsequently sent along with the first counter-petitioner to Bombay for taking up residence with the first counter-petitioner's brother Sree-kumaran Unni Nair and that it will be to the welfare of the child to direct its custody being given to its mother, the petitioner, who is also the natural and legal guardian of the child. Consistent with these findings, an order was issued against counter-petitioners 2 and 3 on 27-8-1956, directing them to hand over the child Nirmala to the petitioner on or before 15th of September 1956. No specific order was passed against the first counter-petitioner.
3. It is against the order passed against counter-petitioners 2 and 3 that they have filed C. M. A. No. 108/1956 challenging the legality and propriety of that order. Finding that the lower Court had omitted to pass a specific order against the first counter-petitioner who is having the actual custody of the child, the petitioner had filed C, M. A. No. 15/1956 (K) praying that the lower Courts order may be modified by directing the first counter-petitioner also to hand over the child to the petitioner.
In order to secure the presence of the child within the jurisdiction of this Court, the petitioner appellant in C.M.R. No. 15/1956 (K) filed a separate petition, C. M. P. No. 36/1956 (K) under Sections 12(1) and 25 (1) and (2) of the Guardians and Wards Act praying for an order for the productionof the child before Court, arid in case of default, to get the child arrested and brought before Court, so that proper arrangements may be made for its temporary custody pending final orders on the C. M. Appeals. That petition was alloyed and the necessary orders were issued in enforcement of which the child was produced before this Court on 14-12-1956.
After hearing both sides, an order was passed on the same day, entrusting the child to the temporary custody of its mother, the petitioner, on taking bonds from herself and two sureties undertaking that the child will not be removed beyond the territorial limits of this Court and to properly look after the welfare of the child and to produce it before Court whenever ordered to do so. Thus the child is at present in the temporary custody of the mother, the petitioner.
4. When the appeals came on for hearing, a preliminary objection was raised on behalf of the respondent in, C. M. A. 15/1956 (K) that the appeal as against her is incompetent for the reason that the proceedings in the lower Court were conducted without any notice to her and that, therefore, she must be deemed to have been not made a party to such proceedings. It was also urged that after the first notice issued to her had been returned linserved, no further steps as required by law were taken by the petitioner to have fresh notice issued and properly served.
We see from the records in the case that there is no substance in these objections. The first notice to the first counter-petitioner was returned on 22-10-1954 with the endorsement that she was not staying at the place mentioned in the notice. But it was not possible to know that she was having her residence at any other known place and the inquiry in that direction also proved fruitless. Henceon 15-11-1954 the petitioner presented a petition for sanction for substituted service. The petition purported to be one under Order 5, Rule 25 of the Code of Civil Procedure.
The mention of Rule 25 was an obvious mistakebecause Rule 25 could have no application at all to the circumstances mentioned in the petition. It is clear that the petition was one under Order 5, Rule 20. It was stated in the petition that the first counter-petitioner was having her residence mentioned in the notice and that she was keeping in hiding with the object of evading service of notice. On the strength of such averments, it was prayed that substituted service may be allowed. The Court on 16-11-1954 passed an order allowing the petition.
Accordingly, notice to the first counter-petitioner was served by affixture at her permanent place of residence and also at the Court house, and it is also seen that such service was endorsed as proper service. Under these circumstances, it cannot be said that there was no proper service of notice on the first counter-petitioner about the proceedings in the lower Court. In the nature of things, it is also diffi-cult to believe that the first counter-petitioner was not in the know of such proceedings as they were progressing and in which her own sister and her husband were actively contesting.
Some of the documents which had, to be in her possession are also seen to have been produced at the trial by counter-petitioners 2 and 3. That all of them had the identical contentions to be urged against the petitioner, is also clear from the arguments addressed at the time of the hearing of the two appeals.
Thus there can be no doubt that the first counter-petitioner who had succeeded in taking away the child to Bombay soon after the filing of the Guardian and Wards Petition in the Trichur District Court, was purposely keeping out and watching the outcome of that petition with the full knowledge that she was also a party to that petition. Her present objections that she was not properly made a party to that petition, that notice of the petition was not properly served on her and that C. M, A. No. 15/1956 (K) is incompetent and unsustainable for those reasons, have only to be overruled as baseless and untenable.
5. Before proceeding to consider the other points urged on behalf of the appellants in C. M. A. 108/1956 and the respondent in C. M. A. 15/1956 (K), the claim of the petitioner-that she is the natural and the legal guardian of the child Nirmala, may be disposed of. The child's father is no more and the petitioner is its mother. She is, therefore, unquestionably the natural guardian of the child. The mother and the child are governed by the Madras Marumakkathayam Act.
Section 14 of that Act lays down that among the members of the community governed by that Act, the father shall be the guardian of his minor children in respect of their person and property, except in respect of their interest in their tarwad or thavazhi properties. Section 15 of the Act states that the mother shall be guardian of the person and property of her minor children if their father is dead or the marriage of their parents is dissolved. Thus, it is clear that with the death of Dr. Vasunni Nayar, the father of Nirmala, her mother, the petitioner, became her legal guardian. She is therefore entitled, both as the natural and the legal guardian of the minor child, to claim its Custody.
6. The objection that the mother's application under Section 25 of the Guardians and Wards Act could not be entertained in the District Court at Trichur, may now be examined. The section merely states where the conditions postulated therein are satisfied,the Court may grant the relief as provided for in the section. The 'Court having jurisdiction to entertain an application under Section 25, is the Court as defined in Sub-section (5) of Section 4 of the Act. Clause (b) (ii) of Sub-section (5) makes it clear that Court for the purpose of proceedings under the Gvardians and Wards Act in relation to the person of the ward, means the District Court having jurisdiction in the place where the ward for the time being ordinarily resides. This position is further emphasised by Sub-section (1) of Section 9, which states that
'if the application is with respect to the guardian-ship of the person of the minor, it shall be madeto the District Court having jurisdiction in the placewhere the minor ordinarily resides.
The expression 'where the mjnor ordinarily resides appears to have been deliberately used to exclude places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor. The phrase 'ordinarily resides' indicates ordinary residence even at the time of the presentation of the application. The emphasis is undoubtedly on the minor's ordinary place of residence. Such a place has to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to a different place.
Where the application is filed soon after such removal, the place of such removal will be ignored for the purpose of determining the jurisdiction of the Court to entcctain the application and in spite of such removal the minor will be deemed to have its residence at the place where it was ordinarily residing. The new place to which the' minor may have gone or may have been removed, can become the place of ordinary residence of the minor only after the minor has settled down at that place for a reasonably long period, and the residence passed the stage of casual or temporary residence.
The question of determining the Court's jurisdiction on the basis of the place where the minor ordinarily resides, has come up for consideration in a series of cases. In Mt. Nazir Begum v. Ghulam Qadir Khan, AIR 1937 Lah 797 (A), the mother of a minor Mehamedan girl had filed the application for guardianship of the minor in the Court of Multan. The minor was born in the Multan District and was residing there with the father till the letter's death. After that event the minor was sent to Bhawalpur State with the mother's consent, and within a few weeks thereafter the mother's application was filed in the Court at Multan.
The application was opposed on the ground that the said Court had no jurisdiction to entertain the application because the minor was residing in Bhawalpur State. The objection was overruled and it was held that until a few weeks before the filing of the application the minor was living in the Multan District and thus Multan was the place of ordinary residence of the minor and that the Court at Multan had jurisdiction to entertain the application.
In Lalita Twaif v. Paramatma Prasad, AIR 1940 All 329 (B), also it was pointed 'out that the minor's actual place of residence at the time of an application under Section 9(1) of the Act does not necessarily determine the jurisdiction of the Court and that such jurisdiction must be determined on the basis of the place 'of ordinary residence of the minor. The test for determining the place of ordinary residence of the minor was laid down in the following terms in Bhola Nath v. Sharda Devi, AIR 1954 Pat 489 (C) :
'The question as to the ordinary residence ofthe minor must be decided on the facts of eachparticular case and generally, the length of residenceat a particular place determines the question. Theexpression 'the place where the minor ordinarilyresides' means the place where the minor generallyresides and would be expected to reside but forspecial circumstances.'
The significance of the expression 'ordinarily resides' was also considered in Jhala Harpalsinghv. Bai Arunkunvar, AIR 1954 Sau 13 (D), wherethe following comments were made:
'Mere factual residence at a place at the time of the proceeding is not sufficient, to give jurisdiction. The words used in Section 4(5)(b)(ii) are not simply where the minor resides, but where the minor ordinarily resides. The word 'ordinarily' has been intentionally used to bring in considerations other than that of mere factual residence.'
In Chandra Kishore v. Hemlata, AIR 1955 All 611, (E), it was pointed out that the words 'ordinarily resides' obviously mean more than temporary residence, even though such residence is spread over a long period. These principles have to be kept in mind in examining the question as lo which was the place of ordinary residence of the minor Nirmala when her mother filed the present application in the Trichar District Court on 12-10-1954.
7. It is an undisputed fact that Nirmala was staying along with counter-petitioners 1 to 3 in Kannambra House at Trichur from 10-6-1954 on wards until she was taken to Bombay in the second ' week of October, 19.54 by the first counter-petitioner. Prior to June 1954 the child was staying at Dr. Vasuninsni Nayarr's residence at Madras. It has to be remembered that this was only a temporary residence of Dr. Vasunni Nayar himself and such residence could have had its duration only so long as he was in service as a Medical Officer under the Madras Government.
During the early years of Nirmala's childhood, the mother was also staying at Madras' with Dr. Vasunni Nayar and thus during that short period the child was staying with its parents. When the mother went back to her parents' house in May 1952 on account of her strained relationship with Dr. Vasumii; Nayar, she was not permitted to take the child with her and so the child was compelled to remain with the father at Madras. Within' a short time thereafter he began to feel that there was nobody to look after 1m child.
This feeling became aggravated when his health failed and he was alilictcd with a serious illness. All the same he was not prepared to entrust the custody of the child to the mother. There was also the problem of educating the child. From the several letters of Dr, Vasunni Nayar which have been produced in this case, it is seen that he was obsessed with the feeling that himself and the other members of his family were leading an aristocratic way of life and that the habits and manners of his wife were not suited to the members of such an aristocratic circle.
It was also his view that the language spoken by his wife and her people was not chaste and re-fined in spite of the fact that all of them arc highly educated, the petitioner herself being a B. Sc. B. T. His obsessions in these directions arc apparent even from the letter Ext. C dated 4-11-1949 written by him to his wife at a lime when their relationship was cordial and affectionate. In that letter he has severely criticised the behaviour of his wife and her people during the time of their visit to Kannambra ; House. After thus criticising these people, he has '; made the following statements in that letter :
'I am honest and plain in telling you that I do not want my people to inculcate the habits and customs' prevailing in your place. They are the veryantithesis of what I am and I do not want my child to learn them. I am very definite about it.'
Obviously he wanted his child to imbibe the habits and manners of the Kannambra people, about which he was boasting so much. Naturally the idea expressed in the letter Ext. C must have been prominent in his mind when he decided that his child must grow up in the company of his own people at Kannambra House. The letter Ext. VII dated 25-7-1954 written by him to the first counter-petitioner contains the following significant statements:
'But I have anxiety only when I think of my darling daughter. If that child is with me and you, then I can got on with peace and joy. After the dissolution of the marriage, however much they try to obtain my child, I will not give........ .It is myDesire that my child should be brought up in an aristocratic and respectable manner. That is how we have so far been doing.- If my child meets Sarada and lives one day with her, it is impossible to improve the child afterwards. That is certain. Therefore it is your responsibility to bring her up well. There is none but you to look after me as well as my child,'
These ideas of his as to the manner in which the child should be brought up were evidently in his mind when he sent the child to Trichur in the company of counter-petitioners 2 and 3 on 10-6-1954 when they returned from Madras after enquiring about his illness, On the very next day the child was admitted to the Sacred Heart's Convenb Girls' High School at Trichur, the third counter-petitioner figuring as the local guardian of the child. The child's-residence thus commenced at Trichur cannot ho said to be a casual or temporary residence.
On the other hand, it is clear that the counter-petitioners and Dr. Vasunni Nayar clearly intended that Kannambra House should be the ordinary place of residence of this child. As already stated, she had no permanent place of residence at Madras and the father was not prepared to send the child to its mother's residence. The father's temporary residence at Madras came to an end with his death on 27-9-1854. Even at that time Nirmala was at Trichur. Subsequent to 27-9-1954 Nirmala could not have had any kind of residence at Madras.
In fact her only residence thereafter was at Trichur and she was there until she was taken to Bombay in October 1954. As for the exact date she left Trichur, there is dispute between the parties. But it is common ground that railway tickets for the journey from Trichur to Bombay had been purobased on 6th October 1954. It is the counter-petitioner's case that these tickets were intended for the first counter-petitioner, for her brother Sree-kumar, for his wife and for Nirmala. The letter Ext. IX from the Station Master at Trichur also shows that 3 1/2 tickets were purchased and Seats reserved for the journey of these people from Trichur to Bombay on 13-10-1954.
According to the petitioner, these people proceeded to Bombay from Trichur only on 13-10-1954. But there is no direct evidence on this point and the petitioner's case regarding the journey of these people from Trichur rests on the inference drawn from the circumstances already mentioned. On theother hand, the version given by counter-petitioners 2 and 3 who have been examined as C. P. Ws. 1 and, 2 respectively, is that counter-petitioners 1 and 2 along with Nirmala and Sreekumaran Unni Nayar had gone from Trichur to Peroor even 'on 10th October and after performing the ,14th day ceremony in connection with the death of Dr. Vasunni Nayar, the third counter-petitioner alone returned to Trichur from Peroor, while the others went to Coimbatore and stayed at Sreekumaran Unni Nayar's wife's house there.
According to them, Sreekumaran Unni Nayar and family along with the first counter-petitioner and Nirmala, proceeded to Bombay from Coimbatore on the 13th. It is difficult to believe this version, in view of the fact that even on the 12th Certain ceremonies had to be performed all Kannambra House. The evidence is that such ceremonies were duly performed and that there was poor feeding on the 12th. Normally the child Nirmala could have gone from Kannambra House only after the culmination of all these Ceremonies.
Even If the counter-petitioners' version that they had changed their original programme and so did not return to Trichur from Peroor and that the first counter-petitioner and Nirmala proceeded from Coimbatore to Bombay in the company of Sreekumaran Unni Nayar, is accepted as true, that Cannot in any way affect the question of the ordinary residence of the minor at the relevant time. IP a change of programme was made by the counter-petitioners as stated by them, it would only strengthen the petitioner's contention that they must have done so because they had got some information of the1 filing of the present petition to secure custody of the minor child from the counter-petitioners.
At any rate there was a change of residence I of the minor from Trichur to Bombay only after 13th October 1954. Till that date the minor's only place of residence was Kannambra House at Trichur and that was also the place where the minor was ordinarily residing at the time of the filing of the present petition. It follows therefore that the Court having jurisdiction to entertain the petition was the Trichur District Court itself. The lower Court's finding to that effect is accordingly confirmed.
8. The next point urged on behalf of the three counter-petitioners in the main petition is that the petition is not sustainable under Section 25 of the Guardians and Wards Act for the reason that the minor was not in the actual guardianship of the petitioner and cannot be said to have been removed from her custody. Sub-section (1) of Section 25 runs as follows :
'If a ward leaves or is removed from the custody of a guardian of his person, the Court if it is of opinion that it will be for the welfare of the word to return to the custody of the guardian, may make an order for his return, and, for the purpose of enforcing the order, may cause the ward to be arrested and to be delivered into the custody of his guardian.'
The argument addressed before us is that as perthe literal meaning of the phrase 'removed from thecustody of a guardian', it is clear that the guardianmust have had actual custody of the ward and theremust have been a removal of the ward from suchcustody. We do not see any justification for thusgiving a restricted meaning to that phrase parti-cularly when it appears in the section which is apparently worded in general terms to cover all caseswhere the ward happens to be out of the custodyof the guardian. The word 'guardian' is obviouslyused in its general sense as defined in Section 4 of the Act.The word 'ward' also is similarly used in a generalsense. In Section 4 these two words are defined asfollows : ''
' 'Guardian'' means a person having the care of the person of the minor or his property, or of both his person and property''.
'Ward means a minor for whose person or property or both, there is a guardian.'
Even though the other two words 'removal'' and 'custody' are not defined in the Act, these two words have also to be taken to have been used in Section 25 in their widest sense just as the words' 'guardian' and 'ward' have been used in a comprehensive manner. The word 'custody' must, therefore, be taken to mean any form of custody, actual or constructive, or, in other words, physical or legal. The legislature has not chosen to specify the nature of the custody contemplated by Section 25.
To exclude legal or constructive custody from the general meaning of that word and to construe it as referring only to actual physical custody, would be to improve upon the word as used by the legislature and to restrict its meaning and scope. Similarly, the word 'removed' as used in the section, need hot necessarily be limited to physical removal : of the word, from the custody of the guardian. Effectively keeping away the ward from the control or custody of the guardian will also amount to removal of the ward in a general sense.
It has also to be remembered in this connection that Section 25 is the only section in the Act which enables the guardian to seek the aid of the Court to secure possession or custody of the ward from per-sons wrongfully keeping away the ward from the ; reach of the guardian. Section 12 only provides for the interim protection and temporary custody of the ward. It may be said that there is Section 7 which empowers the Court to appoint a guardian for the minor.
But it has to be remembered that it is notnecessary for persons whose authority as legal guardians of their minor children have been statutorilyrecognised as has been done by Section 15 of the MadrasMarumakkathayam Act, to apply under Section 7 of theGuardians and Wards Act to have them appointedas the guardians of their minor children. . A statutory, guardian or a guardian appointed by Court mayentrust the ward for the time being to a third person. If such third person refuses to give custody ,of the minor to the guardian, the only section which will enable the guardian to get at the ward, is Section 25of the Guardians and Wards Act. '
If the words 'removal' and 'custody'' are con-strucd in a restricted sense so as to rule out the applicability of Section 25 to such a case, the guardian may be left without any remedy. As the preamble of the Act states 'This is an Act to consolidate and to amend the law relating to Guardian and Ward'. The Act must therefore be taken to be comprehensive and exhaustive and all matters relating to guardians and wards must be taken to have been provided under the Act which purportsto be a self-contained statute. The result would be that a guardian who cannot invoke the aid of Section 25 of the Act, will not also have the right to institute a regular suit to get possession of the ward wrongfully withheld from him.
In Mrs. Annie Besant v. Narayaniah, ILR 38 Mad 807: (AIR 1914 PC 41) (F), it was ruled by the Privy Council that such a regular suit by the guardian is incompetent and he should invoke the jurisdiction of the Court under the provisions of the Guardians and Wards Act. To the same effect is the Full Bench decision in Sathi v. Ramandi Panda-ram, ILK 42 Mad 647; (AIR 1920 Mad 937) (G). These decisions go to strengthen the conclusion that the scope of Section 25 of the Guardians and Wards Act is wide enough to sustain an application by a guardian in respect of the ward which is out of his control or custody.
9. As to the scope of Section 25 of the Guardiansand Wards Act, judicial opinion has been sharply divided, The Madras High Court has been consistently taking the view that the word 'custody' used in Section 25 of the Guardians and Wards Act includes both actual and constructive custody of the ward by its guardian. This position was fully explained in Mohideen Ibrahim Nachi v. Md. Ibrahim Sahib, ILR 39 Mad 608: (AIR 1917 Mad 612 (2)) (H), where it was ruled that a father can apply under Section 25 of the Guardians and Wards Act for the custody of his minor son though the minor had all along been in the custody of his grand mother and never in the actual custody of the father. -
The same view was taken in Tatamina v. Veer-raju, AIR 1930 Mad 19 (1). In Venkatarama Ayyan-gar v. Thulasi Animal, AIR 1950 Mad 320 (J), also it was pointed out that Section 25 is not limited to cases where there is actual leaving or removal of the ward from the guardian. It was further explained that refusal by a person to deliver the minor to its natural guardian when asked to do so, amounts in effect to a removal from custody.
Regarding the scope of Section 25, the view taken by the High Courts of Calcutta, Allahabad and Lahore is also in agreement with the view taken by the Madras High Court. Vide Jwala Prasad v. Bachu Lal, AIR 1942 Cal 215 (K); Mt. Ulfat Bibi v. Bafati, ILR 49 All 773: (AIR 1927 All 581) (L); Siddiq-Un-Nissa Bibi v. Nizam-Uddin Khan, ILR 54 All 128; (AIR 1932 All 215) (M) and Mt. Basant Kaur v. Gian Singh, AIR 1939 Lah 359 (N) The following observations from AIR 1942 Cal 21.5 (K), are of special significance :
'When the father of a child is alive and has notabandoned his right, the maternal grand-father orfor the matter of that, any ether relation who hasthe actual custody of the boy must be deemed tohave that custody with the knowledge and consentof the father. Legally it is the father who has thecustody of the child in such circumstances, and thechild can be deemed, within the meaning of thesection, to be removed from such legal custody,when the person in whose actual possession he is,repudiates to the guardian's knowledge the rightof the latter to the actual or legal custody of theminor.'
The High Courts of Bombay, Nagpur and Rangoon have taken a contrary view. Vide Achrat-lal Jekisan Das v. Chimanlal Parbhudas, ILR 40 Bom600: (AIR 1916 Bom 129) (O); Shivamma v. Chen-basappagowda, AIR 1941 Bom 344 (P); Dhan Kumari Devi v. Mahend a Singh, AIR 1923 Nag 199 (Q) and in Manoo Ali v. Hawabi, AIR 1936 Rang 63 (R). The view taken by these Courts is that the word 'custody' as used in Section 25 means actual custody and it cannot be said that a minor who has never been in the' custody of his guardian, has either left or been removed from such custody and that a guardian, who had no actual custody of the ward cannot sustain an application under Section 25 of the Act. For the reasons which we have already explained, we have respectfully to dissent from this view, The preponderance of judicial precedents is in support of the view that Section 25 is not confined to case's of separation or removal of the ward from the actual custody of the guardian, but is equally available to guardians who had only legal or constructive custody of the ward. We are in complete agreement with this view. Such a view has been taken by the Bombay High Court also in Noshirwan v. Sharoshbanu, AIR 1934 Bom 311 (S).
10. So far as the present case is concerned, the petitioner mother had joint custody of the minor child Nirmala while the petitioner was slaying with her husband Dr. Vasunni Nayar at Madras till May 1932. Subsequently, the father alone had the custody of the child as its legal guardian. With his death on 27-9-1954, the petitioner as the mother of the child, became its legal guardian. From that date onwards she had the legal custody of the child. The petitioner and her lather have given evklence as P. W. 1 and P. W. 4 respectively, and both of them have stated that soon after the death of Dr. Vasunni Nayar a demand was made by P. W. 4 on behalf of the petitioner that .Nirmala should be handed over to the petitioner.
Ext. P has been produced and marked as the draft of the letter which P. W. 4 had sent to two of the brothers of the first counter-petitioner eying such a request. P, W. 1 ami P. W. 4 have stated that it was because the letter was not responded to that the petitioner was forced to file the present petition under Section 25 of the Guardians and Wards Act. From the attitude of the counter-petitioners as disclosed by the enquiry that followed, it has become abundantly clear that they were not prepaid to send the child to its mother and were trying their best to keep the child away from the reach of the mother.
Thus there was an effective removal of the child from the legal and constructive custody of the petitioner who is both the natural and the legal guardian of the child. We are, therefore, in perfect agreement with the view taken by the learned District Judge that the petitioner is entitled to seek the aid of the Court for securing the possession of her minor' child Nirmala from the' counter-petitioners who were wrongfully withholding the child from her and that the petition under Section 25 is maintainable.
11. The only other ground on which the counter-petitioners resisted the petition is that it will not be to the welfare of the child to order the return of its custody to the petitioner mother. On this contention also, the lower Court's finding is definitely against the counter-petitioners and in favour of the petitioner. We think that no other conclusion is possible in the light of the facts and circum-stances disclosed by the present inquiry. (Their Lordships considered the facts and circumstances of the case and continued as follows :)
On a consideration of all the aspects of the matter, we are clearly and definitely of the view that it will be decidedly to the welfare of the minor to make over its custody to the petitioner who is the natural and the legal guardian of the child. It follows therefore that her petition under Section 25 of the Guardians and Wards Act has to be allowed.
12. Since the child is now in the temporary custody of the petitioner, all that remains to be done-is to terminate such temporary custody and to declare that the petitioner is entitled to have the custody of the child in her own right as the natural and legal guardian of the child. In such a situation, it is not necessary to maintain the lower Court's order directing the counter-petitioners' 2 and 3 to hand over the child Nirmala to the petitioner. For that reason alone C. M. A, 108/1956 has to be allowed. At the same time we are not prepared to hold that the lower Court erred in its view that Nirmal was in the custody of counter-petitioners 2 and 3 and it was with their knowledge and consent that she was taken to Bombay by the first counter-petitioner. Consistent with such a view taken by the lower Court, the order against counter-petitioners 2 and 3 was justified. But an order should have been passed against the first counter-petitioner also directing her to hand over the child to the petitioner.
13. In the result, C. M. A. No. 15/1956 (K) isallowed and the custody of the minor child Nirmalais given over to the petitioner-appellant who isallowed to retain cm toady of the child in her ownright as its natural and legal guardian. The orderby which temporary custody of the child was givento the petitioner is therefore terminated because ofthe' full right of custody found in favour of the petitioner. The bonds executed by the petitioner andher sureties in connection with the temporary custody of the child, are also cancelled. In view ofthe effective order passed in this appeal, the otherappeal C, M. A. No. 108/1956 preferred by counter-petitioners 2 and 3 is allowed and the lower Court'sorder as against them is set aside. In view of thecircumstances already stated, the parties to thatappeal are directed to bear their respective coststhroughout. The petitioner, who is the appellantin C. M, A. No. 15/1956 (K), will get her coststhroughout from the respondent in that appeal.