1. Petitioner, a student aged 20, has applied under S. 491, Criminal P. G. to recover the custody of the wife, Padmavathi Animal, aged 17, by the issue of a writ of habeas corpus, alleging that she was illegally and improperly detain-ed by her mother, respondent 1 and her brothers, respondents 2 and 3. I am very doubtful as to the admissibility of this petition which I was inclined to dismiss in limine but for reliance placed on the Bench decision Subbaswami Goundan v. Kamakshiammal, 53 Mad. 72 by Baaaley C. J, and Anantbakrishna Aiyar J. I admitted the pati-tion with notice to the respondents and the peti. tion has been heard by us as a Vacation Bench.
2. Padmavathi Ammalaredily appeared before us accompanied by her mother and she says she left her husband of her own accord owing to ill-treatment by his mother and grandmother, who both live in his house. She fully bears out the affidavit, filed on behalf of the respondents that they have nothing whatsoever to do with her leaving her husband and their not keeping her from him against her will.
3. We have carefully considered whether this is a fit case in which we should exercise the disoretion conferred on in by Section 491, Criminal P. O. and pass an order which we think should more properly be passed by a Guardian and Wards Court under Section 25 of the Guardians and Wards Act where considerations of the welfare of the minor as prescribed by the statute can and should be taken into consideration. Section 25 of the Guardians and Wards Act runs thus :
"It a ward leaves or is removed from the custody of a guardian of his parson, the Court, it it is of opinion that it will be for the welfare of the ward to the custody of his 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 the guardian."
4. We have no hesitation in holding that this minor on the threshold of majority is not in the circumstances improperly detained by her mother. In strict law, her husband is her legal guardian but this by itself would not be sufficient to support a finding, except in a strictly technical sense that solely on this ground, she is being "illegally detain-ed" in her mother's custody. We do not think that Section 491, Criminal P. O., was intended to confer on a husband an absolute right to recover the custody of his minor wife, no matter how he may illtreat her, from the custody of her mother. Section 491, Criminal P. O., is also discretionary and not mandatory. We have carefully consider. ed the decision Subbaswami Goundan v. Sama-kshiammal, 53 Mad. 72, in which the facts were different. There the girl was much younger and the learned Bench found that she bad been specifically tutored by her mother and her family to express determined unwillingness to return to the house of her husband. It is true that objection was taken there that the petitioner had not chosen his correct remedy and that he should have sought relief under the Guardians and Wards Act. The learned Judges negatived that view and held that the remedy under Section 491, Criminal P. 0., was one open to the petitioner. Reliance was placed on Bryant v. Bull, (1878) 10 ch. D. 153 and the dictum of Bacon V. C., that it did not matter how many remedies were open to a person, who was entitled to avail himself of one of them. With great respect, we are in agreement and do not think that in every case a husband, who seeks to recover the custody of his wife should proceed by way of Section 35 of the Guardians and Wards Act and has no remedy under s. 491, Criminal P. O. For instance, if the petitioner had been able to satisfy us that his minor wife was being detained against her wishes by her mother and her family or that she was being used for improper purposes, we should not have had the slightest hesitation in affording the petitioner relief under Section 491, Criminal P. O. The decision in Subbaswami Goundan v. Kamakshiammal, 53 Mad. 72 was followed by Bajamannar J. as he then was, in Venkatarammiah Ghettt v. Papammal, 1947-2 Mad. D. Jour, 153. In that case, the facts were somewhat peculiar. There was an allegation that the mother was contemplating departure for Rangoon with the girl wife who was only 13 years old. Her objection was that the child was not in a fit condition for consummation. There the order of the Court was that the minor girl should be kept in the custody of a public institution for a period of one year at the expense of the husband and on this condition her husband was given custody. We are satisfied that in these two decisions relied on by the petitioner there were special circumstances for an order of custody. In the present case, we are quite satisfied that this young woman, with the threshold of majority, has left her husband, entirely of her own accord dissatisfied with the treatment she was receiving from his mother and grandmother. Though the custody in which she now is may be technically illegal in the sense that her husband as legal guardian is prima facie entitled to custody, we do not consider that the facts of this case would justify our passing any order under Section 491, Criminal P. O. The petitioner is seeking really to exercise his legal right as guardian of bis minor wife. This is eminently a fit case in which we would refer him for his relief to the Guardians and Wards Act, Section 25 of which is specifically intended to give relief in such cases. Though the remedy under Section 491, Criminal P.O., is open to any legal guardian who claims custody of a ward, there must be satisfactory evidence that the ward is in illegal or improper custody of such a kind as to justify an emergent order by a Criminal Court under this section. To take any other view would be to constitute a Criminal Court under Section 491, Criminal P. O, a Guardian and Wards Court acting under Section 25, Guardians and Wards Act, which lays down certain considerations for the guidance of the Court in such matters. We refer petitioner to this remedy and dismiss his petition.
5. Krishnaswami Nayudu J,-This petition raises an important question as to what is the proper remedy in a case where a legal guardian of a minor seeks to recover the custody of the minor from a person who is not the guardian, and whether in such cases, an application under Section 491 (1) (b). Criminal P. C., is preferable to an application under s. 95, Guardians and Wards Act. Such applications, by persons, who are by virtue of their being guardians in law entitled to the custody of the minor, have till now been made under Section 491(1)(b) and relief has been given by way of directing the minors to be restored to the custody of the applicants, the applicant being either a father of a minor child or the husband of his minor wife or of the legal guardian. That such an application is maintainable there is no doubt and the decisions of this Court in Reade v. Krishnat 9 Mad. 391, Subbaswami Goundan v. Kamakshiamal, 53 Mad. 72, Venkatarammiah v. Papammal, 1947-2 Mad. L. Jour. 153: 1947 Mad. W. n. 527 and Rama Iyer v. Nataraja Iyer, A.i.r. (35) 1948 Mad. 294 make it clear that it is open to a guardian, who is entitled to the custody of his ward, to sustain an application under 8. 491 (1) (a), Criminal P. C.
6. Section 491 empowers the High Court, whenever it thinks fit, to direct among others that a person illegally or improperly detained in public or private custody within the limits of its appellate criminal jurisdiction to be set at liberty. This is the common law writ of Habeas Corpus, which the High Court has power to issue, and this common law writ is substituted by the said statutory provision in the Criminal Procedure Oode. This writ of Habeas Corpus is a prerogative writ for securing the liberty of the subject in all oases of wrongful deprivation of liberty of the subject, or unlawful detention of the subject against his will, and recourse is had by the aggrieved party for issue of a writ and the High Court is entitled, on such application, to direct the production of the subject and inquire into the cause of his detention, and if it is satisfied that such a detention is illegal or improper, it can direct the person to be set at liberty. In cases similar to the present one, where the subject is a minor, the question naturally arises whether the minor has got a will of his own, and whether it could be stated there is a detention against his consent and therefore the detention is illegal and improper. But it has been uniformly held that where a minor is kept out from the custody of hia legal or natural guardian against the wishes of the natural guardian, such detention is considered to be illegal, the illegality arising from the circumstance that the detention is without the consent of the person, who is legally entitled to the custody of the minor. It is beyond controversy that in this case, the husband who is the guardian in law of his minor wife, is entitled to have an order that the minor shall be set at liberty so that the applicant may take her into his custody, if 'illegal detention' means that the detention against the wishes of the natural or legal guardian. But there is always the discretion vested in the High Court to pass an order, only if the High Court should think it fit to make such an order, and in the exercise of that discretion, the Court ought to take certain factors into consideration and such factors are those that are generally considered in an application taken out for the appointment or removal of a guardian, or for the custody of the ward by the natural guardian under the provisions of the Guardians and Warda Act, such faotora, being among others, the welfare of the minor and the wishes of the minor, it the minor is able to give an intelligent preference. The result is an application under S. 491 (1) (b) is virtually converted into one under the Guardians and Wards Act. It is well known that this prerogative writ of Habeas Corpus is an extraordinary remedy and generally sought for upon sufficient cause shown only in cases where the ordinary remedy provided by law is Dot available or is inadequate or ineffective in the circumstances of a particular case. It is therefore always open to the High Court to refuse that remedy when there is an effective and specially provided for remedy, which should be the ordinary remedy which an aggrieved person, as in this case who asks for the custody of the minor, should seek.
7. In the cases cited above, the objection that an application under Section 491 was not maintainable was considered and has been uniformly negatived. But though there were applications purported to be under 491 Criminal P C. they were dealt with by the Courts as being practically applications under the Guardians and Wards Act. In Reade v Krishna, 9 Mad. 891 and Abraham v. Mahtabo, 16 Cal. 487 the minors were alleged to have been detained by Christian missionaries and the natural guardians had to prefer apolications for the issue of a writ under Section 491. In Subba-swami Goundan v. Kamakshi Ammal, 53 Mad. 72 the husband sought to recover the custody of his minor wife and the learned Judges, after examining the girl, wife, who was about 13 years of age and who refused to join the husband, held that she was tutored to say so by her mother, and her wishes therefore were not given any weight. In that case an order directing the restoration of the minor wife to the husband was passed which the learned Judges considered to be for the welfare of the minor wife With reference to the argument addressed in that case that proceedings under Section 491 were not the appropriate ones, it was observed as follows :
"We are very .far from saying that in a case such as this the remedy of the husband could be under the provisions of the Guardians and Wards Act, hut it is not necessary for us to expreses an opinion beyond spying that we think it is very doubtful. Even assumes that that remedy was open to the petitioner, it is clear that the remedy under Section 491. Criminal P. C. is one which is open to the petitioner and the respondents cannot be heard to say that when there is a remedy provided by law, that remedy should not be resorted to, because there is another remedy less expensive and less threatening."
The learned Judges finally held that the petitioner was entitled to come by way of an application tinder s. 491, Criminal Procedure Code. This decision was followed in Venkataramiah v. Papammal, 1917 M.W.N. 537: 1947-8 Mad. L. Jour. 153 which was also a case of a husband seeking to recover the custody of his wife. In Rama lyer v. Nataraja Iyer A. I. R. 1948 Mad. 384, where a father applied under Section 491 for the custody of his minor son against the maternal grandfather with whom the minor was staying and bbe learned Judges adopted the same view as in Subbaswami Goundan V. Kamaksthaammal, 63 Mad. 72 as to the maintainability of the application.
8. As already observed, it cannot be said that an application by a guardian for recovery of the custody of the minor from a person, who is not his legal or natural guardian, is not maintainable under Section
491. But the point for determination is whether that is a proper remedy and whether an application under Section 25 of the Guardians and Wards Act would not be the better course to be taken. Section 25, Guardians and Wards Act, in any view so. is the appropriate provision of law under which applications of this nature ought to be taken for the relief which is sought. The Court is empowered under that section, to direct the restoration of the ward to the guardian of the person of the ward if the ward is removed from the custody of such guardian. The terms of the section are so wide that such applications need not necessarily be by a person who is declared or appointed by Court as the guardian. The natural guardian according to the personal law of the minor can apply and a person who though not the guardian is entitled to the custody of the minor, as in the case of a Muslim mother, who is entitled to hizanat in preference to the father, the natural guardian, can also make such an application. If the Court considers that it is for the welfare of the ward to return to the custody of the guardian, the Court can make such an order, and for the purpose of enforcing the order the Court can order the arrest of the ward and exercise the power conferred on a Magistrate of the first class by Section 100, Criminal Procedure Code is view of Section 25, Guardians and Warda Act. I am unable to agree with the observations with respect to the learned Judges in Subbaswami Goundan v. Kamikshiammal, 58 Mad. 72 that in a case such as this the remedy of the husband could not properly be under the provisions of the Guardians and Wards Act, though the learned Judges do not consider it necessary to express an opinion beyond Baying that it is very doubtful. There can however be no doubt that there is an adequate remedy under the Guardians and Wards Act under 8. 26.
9. It may be there may be cases where an order for the production of the minor may have to be obtained urgently and with expedition and in such cases it may be argued that an application for issue of a writ of habeas corpus would be mere effective and speedy remedy, ae for instance, where a minor girl is taken away from the custody of the father by a relation tot the purpose of marrying her to a person quite against the wishes of the natural guardian, or where a minor girt is taken away from the custody of the natural guardian for immoral purposes or with ulterior motives, or whore a minor is Bought to be removed from the jurisdiction of the Court against the wishes of the natural guardian, or where it is appreaended that a minor who is nob in the custody of the natural guardian, is subject to illtreatment and there is tome danger to his health and safety. Such cases can be contemplated, when the minor may be directed to be brought into Court before any harm is done to the minor or a writ may issue from the High Court for the production of such minor before final orders can be passed. In that way it may be argued that the remedy provided under Section 491, may be availed of. But, even in such oases, I do not consider that an effective speedy and adequate remedy could be obtained only by means of an application under Section 491, The Guardians and Wards Act gives sufficient powers to deal with cases of this nature aa well. It is always open to the Court in an application under Section 26, Guardians and Wards Act to issue interim orders for the custody of the minor and to direct the Arrest of the ward. The Court has also got power under Section 12(1) to direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced and may also make orders for temporary custody and protec-tion of the minor as it thinks proper. When the Act provides complete and adequate remedy to a person, who is deprived of the custody of his ward, the proper course for such an aggrieved person a to proceed by way of an application under the provisions of the Guardians and and Wards Act and not seek the general and extraordinary remedy of applying for a writ of habeas corpus. An application under Section 491 being in the nature of a summary proceeding, it will not be possible for instance to go it to the question of the right of guardianship of the applicant in cases where it may be disputed. Questions such as whether it would be for the welfare of the minor to restore the custody of the minor to the guardian and the taking into uoeount the minor's wishes if she is of sufficient age and it able to give an intelligent preference are matters which should legitimately be considered in proceedings under the Guardians and Wards Act and they could not be gone into thoroughly in a summary proceeding. Courts should be reluctant to pass orders in applications under Section 491, when such applications are taken by persons, who claim to be the natural guardians and require their wards to be restored to their custody. Unless there is an imminent danger to the health or safety of the minor or to his morals, when an interim order of production would be-come necessary, parties should be directed to proceed be way of application under the provisions of the Guardians land Wards Act. The more appropriate, effective and legitimate course to be adopted by an aggrieved person who seeks to get the custody of his ward, is under the Guardians and Wards Aut. I agree with my learned brother that it is not necessary to pass an order in favour of the petitioner, and the petitioner is referred to seek his remedy under the Guardians and Wards Act.