N.N.Mithal, J. - (1.) IN this First Appeal From Order, the mother of a minor Girl has assailed the Order of the District Judge whereby she has been directed to give the custody of the minor girl to her divorced husband. The main plank on which the order of the Court below is assailed is two fold. Firstly that Section 25 of the Guardian and Wards Act (for the sake of brevity expression, hereafter called 'G and W Act') was not applicable in the present case as the Wards had neither been removed nor had left the custody of the lawful guardian and secondly that the proceedings under Section 25 of the G and W Act must be treated to be barred in view of the new provisions which have been brought in by Section 26 of the Hindu Marriage Act, hereafter called 'H and M Act', read with Section 4 sub -clause (b) thereof. Arguments have also been addressed on merits and also on the ground that wishes of the minor had not been ascertained before the impugned order was passed.
(2.) ON the first question, it appears to me that the learned counsel is not on firm ground. It is not disputed that the girl in question is a minor as she has not completed the age of 18 years. The respondent is undisputedly the natural guardian of the girl and the mother was entitled to her custody only upto the age of five years in normal circumstances. The other undisputed facts are that the marriage of the parents had taken place on 9th October, 1979 and the girl in question was born of the wedlock on 14th August, 1971. Subsequently there was estrangement between the two which resulted in a decree for divorce on 8th September, 1977 on the basis of a compromise. It is also not disputed that in 1978 the husband has remarried while the mother remains unmarried so far. The father is a teacher. However, the mother also claims to be a teacher, the fact which is disputed by the father on the ground that she is under suspension at the moment. Admittedly, the girl in question is nearing her 14th birthday. Section 25 of the Act provides that where a ward leaves or is removed from the custody of his guardian, the Court may make an order for his return if it was satisfied that doing so would be for the welfare of the ward. Sri Vishnu Sahai has tried to emphasise that in this case the girl has been all through in the custody of the mother and thus there was no question of her either leaving the custody of the father or being removed from his custody. The argument, however, stands rejected by a long series of decisions of this Court as well as of various other High Courts of the country. In such matters, the judicial interpretation has always taken a merciful view of the matter so as to prevent the Court from being rendered powerless. The Courts have always treated the custody mentioned in Section 25 as constructive custody. According to law, the father being the natural guardian, if the ward is not in his custody that is enough to hold that he has been removed or has left the lawful guardianship and in such cases the lawful guardian has always been held to be entitled to the restoration of the custody. It is true that Section 25 of the G and W Act speaks of custody and leaving or removal, but having regard to the object underlining the provision, it must be construed to mean that custody in this section imputed not only actual but also judicial or legal custody and the removal is not merely confined to the physical taking away but must necessarily include refusal by person not authorised to get custody to deliver back the minor when asked to do so by the natural guardian. To hold otherwise must necessarily lead to disastrous results frustrating the true purpose and object of the provision, such a meaning, the Courts also have provided. In Mst. Ulfat Bibi v. Bafati : A.I.R. 1927 All. 581 the same view was expressed by a Division Bench of this Court. The submission in this respect, therefore, appears to be devoid of substance and must be rejected.
(3.) THE second leg of the argument of the appellant was that whatever may be the position prior to the passing of the Hindu Marriage Act, the position has basically changed thereafter in view of Section 26 of the H and M Act which has a parallel provision and has over -riding effect on all existing laws. According to the counsel, Section 25 of the Hindu Marriage Act provides for proceedings being taken either during the pendency of a proceeding under the G and W Act or at the time of passing the decree in such proceedings or even subsequent thereto in the matter regarding custody of minor children. For the sake of convenience, Section 26 may be extracted here as under: - - In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.;