Raghava Rao, J.
1. This appeal arises out of a petition by the mother of the minor, aged about 13 her natural guardian, under Section 25 of the Guardians and Wards Act for recovery of her custody from her paternal aunt's husband. The petitioner succeeded in the Court below.
2. It is argued for the appellant that the mother does not satisfy the definition of 'guardian' in Section 4, Sub-section (2), Guardians and Wards Act and that her petition under Section 25 of the Act is not therefore maintainable. The point made is that she is not a person in truth and in fact having the care of the person of the minor because it is the paternal aunt and her husband that are actually having such care. It is also said that she is not a guardian appointed or declared as such. I do not agree. Noshirwan v. Sharoshbanu, : AIR1934Bom311 supports my view. It is there held that the word 'guardian' in the section is used in a wide sense and does not necessarily mean a guardian duly appointed or declared by the Court but includes a natural guardian or even a de facto guardian.
3. It is argued next that a de jure guardian not proved at one time to have had the physical care or custody of the girl, is not entitled to apply under Section 25 of the Act complaining of removal and asking for return of the ward to the applicant's custody. There again the same ruling is in point and adverse to the appellant in as much as it holds that the section is not limited in its operation to the power of the Court to enforce the guardian's right only in extreme cases of an actual leaving or removal of the ward from the guardian. As ruled by a Bench of this Court in Atchayya v. Kosaraju Narahari : AIR1929Mad81 the refusal by a person to deliver the child to its natural guardian when asked to do so by the latter amounts in effect to a removal from his custody and be can therefore apply under Section 25 of the Act.
4. It is lastly argued that although the welfare of the child is the paramount factor for the consideration of the Court as made clear by Section 25 itself, yet, in judging of that, the Court is bound to respect the volition expressed by the ward, which in this case is in favour of the appellant. On this aspect of the matter, the learned District Judge observes in para. 3 of his order as follows :
'The minor protests vehemently against being handed over to her mother and says that she would rather die than go to live with her mother whom she hates and detests. The reasons she gives for this unnatural attitude are sufficient to show that her present surroundings are moat harmful to her welfare. Her aunt and uncle (the respondent and his wife) have told her that her mother poisoned her father and killed him and therefore she apprehends that her mother might poison her also. This only shows how the respondent and his wife have poisoned the mind of the girl against her own mother. The second reason given by the girl is a good reason for removing her forthwith from the respondent's roof. That is that she wants to marry her cousin (the respondent's son) in accordance with the dying wishes -- no doubt conveyed to her by her aunt and uncle of her father. This cousin lives in the same house as the minor girl and about a year or more ago the petitioner had to obtain an order under the Child Marriage Restraint Act to stop the marriage which the respondent was arranging to solemnise between the minor and his son.'
After all, even assuming that a minor has a will of his own which must be respected in such a matter, the preference expressed by a boy or girl of 13 or 14 is not, as pointed but in S. Rama Iyer v. K.V. Nataraja, Iyer : AIR1948Mad294 entitled to much or any weight at all, especially where, as found, here, the minor's attitude is not a natural, bona fide, and intelligent one, but one induced by the unwholesome persuations of her paternal aunt and her husband. I accordingly dismiss this civil miscellaneous appeal with costs.