V.R. Newaskar, J.
1. This appeal arises out of husband's application under Section 25 of the Guardians and Wards Act for the recovery of the custody of his minor wife from her father, brother and others. The husband had also started proceedings for restitution of conjugal rights alleging marriage. In that proceeding the marriage itself was denied. The Court, on evidence, found that the marriage was proved and a decree for restitution of conjugal rights was passed. The decree was confirmed in appeal.
2. Contentions raised on behalf of the girl's father in the present proceedings were (1) that the girl Geeta was in fact not married to the applicant and consequently he had no right to her guardianship, (2) and that she was only 10 or 11 and consequently it was not in the welfare of the girl that she should be taken away from the custody of her parents and be made over to the husband. The Court below held that the girl was married to the applicant, the finding being based on the decision in the suit for restitution of conjugal rights. It was also found that the girl was nearly 17 or 18 and not 10 or 11. On the question of husband's right Io claim guardianship of his minor wife in preference to her parents it relied upon the provisions of Section 6 of the Hindu Minority and Guardianship Act and held that the husband is statutorily the natural guardian of his minor wife and in the absence of any special consideration it was not proper that he should be given the custody of his minor wife. Reliance in this connection was placed upon the decisions reported in Mr. Richard v. Mrs. Richard, (S) AIR 1955 Mad 451; Sarada Nayar v. Vayankara Amma, AIR 1957 Kerala 158 and Atchayya v. Kosaraju Narhari, AIR 1929 Mad 81.
The learned Judge also considered the contention that the girl had expressed her wish against her being kept in the custody of the applicant. It was however held that her wishes as expressed by her in her statement before the Court were not the result of her free and independent judgment hut were the outcome of promptings from her father. Decision reported in Venkatarama Ayyangar v. Thulasi Ammal AIR 1950 Mad 320 was relied upon and that in Mt. Sheo Kumari v. Mathura Ram AIR 1936 All 657 was not followed. The trial Judge, accordingly passed an order in applicant's favour for the custody of his wife Geeta.
3. This is an appeal both by Geeta and her father Atmaram against that decision.
4. Principal point raised by Mr. Patel is that Geeta had never been in the actual custody of her husband and consequently there could be no leaving or removal of the minor from the guardian's custody. Therefore no petition under Section 25 of the Guardians and Wards Act was tenable. Another point put forward was that the girl had become major by now and consequently the jurisdiction under the Guardians and Wards Act ceased.
5. It is beyond dispute that with the finding as to the marriage of Geeta with the applicant he becomes the natural guardian of his wife, the present proceeding having started after the Hindu Minority and Guardianship Act, 1956, had come into force. Further question then to be considered is whether Geeta could he said to have been removed or to have left the custody of her husband. It is urged that she had never been in her husband's custody and therefore she could neither have left that custody nor could she have been removed from the same. The question is somewhat controversial. It was held by the Bombay High Court in Shivawwa v. Chenbasappagowda AIR 1941 Bom 344, that the custody contemplated under Section 25 is the actual custody and not constructive custody and therefore where there is no leaving or removal of the ward from the actual custody of a guardian of his or her person condition for the exercise of power under Section 25 of the Guardians and Wards Act is not satisfied, In an earlier decision of that Court reported in Noshirwan v. Sharoshbanu AIR 1934 Bom 311, a wider import was attached to the term custody meaning actual or constructive, Rangoon High Court in Manoo Ali v. Hawabi AIR 1936 Rang 63, has taken the view similar to that in AIR 1941 Bom 344.
6. On the other hand in Jwala Prosad v. Bachulal AIR 1942 Cal 215 Mukherjea and Biswas JJ., relying upon Utma Kuar v. Bhagwant Kuar, ILR 37 All 515: (AIR 1915 All 199) and Mohideen Ibrahim v. L. Mahd. Ibrahim, ILR 39 Mad 608: (AIR 1917 Mad 612 (2) ) held that the word 'custody' as used in Section 25 of the Guardians and Wards Act refers not only to the actual but also to constructive or legal custody. Their Lordships reasoned thus:
' When the father of a child is alive and has not abandoned his right, the maternal grand-father or for the matter of that any other relation who has the actual custody of the boy must be deemed to have that custody with the knowledge and consent of the father. Legally, it is the father who has the custody of the child in such circumstances, and the child can be deemed, within the meaning of the section to be removed from such legal custody, when the person in whose actual possession he is, repudiates Io the guardian's knowledge the right of the latter to the actual or legal custody of the minor ...... To hold otherwise, would be to admit that there is no provision in the Guardians and Wards Act under which a guardian, even if he is appointed by a Court, can apply for having the custody of the minor who had never been in his custody before. '
7. In AIR 1950 Mad 320, Raghava Rao J., followed the view taken in the earlier Bombay decision reported in AIR 1934 Bom 311, as also that in AIR 1929 Mad 81, and held that Section 25 is not limited to cases where there is actual leaving or removal of a ward from the guardian and that even refusal by a person to deliver a minor to his or her lawful guardian when asked to do so amounts in effect to a removal from custody.
8. In Dhan Kumari v. Mahendra Singh, AIR 1023 Nag 199, Batten J. C. and Hallifax, A. J. C., followed the decision in Achratlal Jekisandas v. Chimanlal Parbhudas, ILR 40 Bom 600 : (AIR 1916 Bom 129), that the father who had never the custody of his child cannot apply under Section 25 of the Guardians and Wards Act.
9. On a consideration of these authorities I am of the view that the reasoning of the Calcutta High Court in AIR 1942 Calcutta 215 as quoted above is preferable. Although Section 25 speaks of custody and leaving or removal from it, having regard to the object behind the provision and possible amplitude of these words 'custody' and 'removed' used in the section as also somewhat startling results contrary to the real object of the provision which may follow by accepting narrower meaning I am inclined to hold that custody in Section 25 includes not only actual but also juridical or legal custody and that removal is, not confined to physical taking away but includes refusal by an unauthorised person to deliver back the minor when asked to do so by the natural guardian or one appointed by the Court.
10. This takes us to the second point raised by Mr. Patel as to the girl's age and her inclination. As regards her age the position taken here is totally different than what had been done at the trial. There it was contended that the girl was too tender of age (10 or 11) and consequently was not lit to be made over to the applicant having regard to her welfare. The position now taken is that her inclination should be the deciding factor as she is sufficiently grown up. She is said to have become major. As the materials on record stand it could not be said that she has completed, the age of 18 years. As regards her inclination that was present to the mind of the learned Judge of the Court below. It has to be said that her preference cannot be said to be either bona fide or intelligent but is apparently prompted when she goes to the extent of denying marriage.
11. On the whole I am of the view that the decision of the Court below is not improper or illegal and no interference in this appeal is therefore called for.
12. The appeal is consequently dismissed with costs.