J.B.MEHTA, S.H.SHETH - (1.)The appellant-plaintiff father of the minor children who had filed the application under sec. 25 of the Guardian and Wards Act) 1890 hereinafter referred to as the Act has filed this appeal as the learned Single Judge had set aside the trial Courts order on the ground that it had no jurisdiction and he had further held that the provisions of sec. 21 of the Code could not be invoked in such cases. The appellant respondent No. I were married on February 18 1961 and were residing at Palanpur. There were three children of this marriage. The first son was born on July 22 1963 the daughter was born on February 28 1966 and the second son was born on May 15 1968 It is the case of the appellant that respondent No. 1 wife ran away from the family house at Palanpur on October 31 1967 to her fathers house in village Vaghel in the jurisdiction of the Mehsana District Court. The appellant therefore applied for restoration of custody of these three minors who were removed by respondent No. 1 wife to village Vaghel against the will of the appellant. This application was filed on January 6 1970 before the District Court at Palanpur and in the same application the appellants father-in law and mother-in-law were joined as respondents Nos. 2 and 3 on the ground that they were instigating and not allowing the appellant to see these children. The trial Court by the order dated September 3 1971 held that it had jurisdiction as the minor children must be taken to be residing with the father who had the legal custody. He therefore ordered that the eldest son Ashok should be delivered to the custody of the father while the other two children were allowed to be retained by the mother on the ground that consideration of welfare of the minors required that course to be adopted. The appeal of the wife against that order having been allowed on the point of jurisdiction as aforesaid the appellant-applicant has filed this Letters Patent Appeal.
(2.)The relevant sec. 25(1) provides as under :
"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 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 b: delivered into the custody of the guardian."

Sec. 25(3) then provides that the residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship. The scheme of these provisions has been interpreted by their Lordships in Rozy v. Jacob A.I.R. 1313 S. C. 2090. At page 2092 their Lordships pointed out that sec. 25 contemplates not only actual physical custody but also constructive custody of the guardian which term includes all categories of guardians. Sec. 25 is attracted only if a ward leaves or is removed from the custody of a guardian of his person and the Court is empowered to make an order for the return of the ward to his guardian if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian. The Court is entrusted with a judicial discretion to order return of the ward to the custody of his guardian if it forms an opinion that such return is for the wards welfare. Their Lordships pointed out that the use of words ward and guardian leaves little doubt that it is the guardian who having the care of the person of his ward that can seek the assistance of the Court for the return of his ward to his custody. The object and purpose of the provision being ex-facie to ensure the welfare of the minor ward which necessarily involves due protection of the right of his guardian to properly look after the wards health maintenance and education this section demands reasonably liberal interpretation so as to effectuate that object. Hyper-technicalities should not be allowed to deprive the guardian of the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter's welfare. Their Lordship further pointed out that sec. 19(b) provided that a guardian is not to be appointed by the Court when the minors father is living and is not in the opinion of the Court unfit to be the guardian of the person of the minor. Therefore the only provision to which the father can have resort for his children's custody is sec. 25. Therefore the fathers application under sec. 25 for the custody of his children was held to be competent and their Lordships observed that the Court would have to consider all the questions on facts and law properly raised before it relating to the children in question. Even under sec. 25 the controlling consideration governing the custody of the children was primarily the welfare of the minors concerned. The discretion vested in the Court was as was the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases could hardly serve as binding precedents the facts of two cases in that respect being seldom-if ever-identical. Their Lordships further pointed out that there was no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The fathers fitness has to be considered determined and weighed predominantly in terms of the welfare of his minor children in the context of the relevant circumstances If the custody of the father cannot promote their welfare equally or better than the custody of the mother then he cannot claim indefeasible right to their custody under sec. 25 merely because there was no defect in his personal character and he has attachment for his children-which every normal parent has. Therefore their Lordships held that the fathers fitness could not override considerations of the welfare of the minor children. No doubt the father has been presumed by the statute generally to be better fitted to look after the children-being normally the earning member and member and head of the family but the Court had in each case to see primarily to the welfare of the children in determining the question of their custody in the background of all the relevant facts having a bearing on their health maintenance and education. This view was taken by their Lordships of the right of the father to be appointed or declared as guardian and to be granted custody of the minor children under sec. 25 read with sec. 19 by in terms laying down that to the extent 2he decisions were against this view as to the true interpretation of sec. 25 of the Acts they must be held to be wrongly decided. Mr. Oza therefore argued that if the father was the person entitled to make this application under sec. 25 and it was his only remedy when the ward was removed against his will the Court which must give assistance must in that context be the Court where the father was residing and from whose custody the minor was removed.

(3.)Sec. 25(1) however has categorically used the expression the Court which has been statutorily defined in sec. 4(5)(a) to mean the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Under sec. 9(1) if the application is with respect to the guardianship of the person of the minor it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Therefore the legislature has statutorily defined the court for the purposes of sec. 25(1) as the District Court having jurisdiction in the place where the minor ordinarily resides. Therefore the legislative test of the Court which has jurisdiction in this matter is the Court where the minor ordinarily resides and not the Court where the father resides and with whom the minor must be deemed to have been in constructive custody. If the application is made immediately after the removal from the fathers custody the place where the father resides would be the place where the minor ordinarily resides and there would be no difficulty. Similarly if there are two places where it could be held that the minor was ordinarily residing the question would be one of convenience because the legislative test would be fulfilled. The question however cannot be decided on presumptive legal or constructive custody but by an application of the statutory test of the ordinary residence of the minor This would surely be a question of facts to be resolved in each case by taking into consideration all the relevant circumstances.
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