JUDGMENT
C.B. Capoor, J.C.
1. This appeal is directed against an order of the learned Senior Sub-Judge Mahasu, whereby a petition filed under Section 25 of the Guardians and Wards Act, was dismissed on the ground that it was not maintainable.
2. The petitioner was married to the respondent. About 13 months prior to the filing of the petition the respondent left the house of the petitioner and subsequently a male child, for securing whose custody, the present petition has been filed, was born at the house of the respondent’s parents. The marriage between the parties has been declared to be null and void) as a result of a petition filed by the respondent. The learned Senior Sub Judge, was of the opinion that as the child for securing whose custody the petition under consideration was filed was not removed from the custody of the petitioner, it was not maintainable.
3. The only question that arises for decision is as to whether the petition was maintainable. Sub-section (1) of Section 25 of the Guardians and Wards Act reads as below:
“(1) 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 ward 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 the guardian.”
4. There is divergence of judicial opinion on Misinterpretation of the words “is removed from the custody of a guardian of his person”. It has been held by the Bombay High Court, in the case of Shivawwa Balappa v. Chenbasappagowda Sangangowda, AIR 1941 Bom 344, that:
“Custody 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.”
5. The same view prevails in the Rangoon High Court vide, Manoo Ali v. Hawabi, AIR 1936 Rang 63. The Punjab, Allahabad and Calcutta High Courts have, however, expressed a different view. It was held in the case of Smt. Sami tran Devi v. Suba Ram, AIR 1961 Punj 161 that the remedy of a guardian who has been denied the custody of his child from its very birth must be found within the four corners of the Guardians and Wards Act. Custody meant both actual and constructive custody and likewise the word
‘removal’ was not limited to physical removal and constructive removal also falls within the ambit of that word and that refusal by the person having the constructive custody of the child to hand over the child to the father would amount to removal from the custody of the father.
6. In the case of Chandrapal v. Smt. Mugia, AIR 1961 All 549, the word ‘custody’ as used in Section 25 was construed to mean not only actual or constructive custody but also legal or formal custody. For the Calcutta view reference may usefully be made to Jwala Prasad Saha v. Bachu Lal, AIR 1942 Cal 215. In the Madras High Court the current of authority has not been uniform. In the case of Venkatarama Ayyangar v. Thulasi Ammal, AIR 1950 Mad 320, the words “removal from custody” as used in Section 25 referred to above were given a wider meaning and were held to cover refusal by person to deliver child to its natural guardian when asked to do so. In the earlier cases vide Fatima Bibi v. Peda Pentu Saheb, AIR 1941 Mad 944, the narrower construction was favoured. The interpretation of the words “removal from custody” as used in Section 25 referred to above came up for consideration before Chowdhury, Judicial Commissioner in the case of Mst.
Rakhi v. Garib Das, AIR 1953 Bilaspur 26, and on a review
of the earlier case law he preferred the view which prevailed in the Calcutta High Court and in some of the cases of the Madras High Court. The Bombay view was not followed by him.
I respectfully agree with the view expressed in the AIR 1953 Bilaspur 25 case. The result of putting a narrower interpretation on the words “removal from custody” as used in Section 25 referred to above would be to render the section nugatory in a case like the present where the child is born at the house of his or her maternal grand parents or at a place other than the house of his or her father such as hospital. In such a case if the mother of the child is not his or her natural guardian she should be held to have custody of the child on behalf of the natural guardian and the natural guardian shculd have a right to secure the custody of the child subject of course to the fulfilment of the other conditions laid down in the relevant sections and the words “removal from custody” should be given a wider interpretation and should be held to include refusal to hand over the child when asked by the natural guardian to do so.
7. I am, therefore, unable to endorse the view of
law expressed by the learned Senior Sub-Judge. The appeal
is accordingly accepted. The order of the learned Senior
Sub-Judge dismissing the petition is set aside and the casa
is remanded to the Court below with the direction that it
should proceed to dispose of the petition under Section 25
of the Guardians and Wards Act in accordance with law,
keeping in view the observations made in this order.
