S.S.Dhavan, J. - (1.) This is an appeal against an order passed by the learned District Judge of Bijnor under Section 25 of the Guardians and Wards Act, 1890, directing that the custody of a girl called Bhagwati should be given to her sister Smt. Mungia, who is the respondent in this appeal. The appellant Chandrapal claims to be the husband of the girl. Bhagwati is admittedly an orphan having lost both her parents in her early infancy. She was living with a woman called Ramo when she is alleged to have been married to Chandra Pal. There is a dispute about her age, the appellant Chandrapal alleging that she was born on 10-2-1941 and her sister saying that she was born on 10-3-1943. On 4-4-57 this sister, Smt. Mungia, made an application under Section 7 of the Guardians and Wards Act for being appointed as a guardian of the girl and also asked for custody of her property which was substantial in value. On 24-4-1957 she made another application for an injunction restraining Smt. Ramo and her son Ram Swarup from marrying off the girl during the pendency of her application. The court issued an ex-parte order of injunction. On 6-5-1957 she applied for a direction to Smt. Ramo to produce the girl in court. On 18-5-1957 both Smt. Ramo and her son Ram Swarup, with whom the girl had admittedly been living, made a formal appearance in the proceedings. On 23-5-1957 they made a statement in writing that the girl Bhagwati had been married to a man called Chandrapal (the present appellant) on 25-3-1957 and consequently she was no longer in their custody. On 25-5-1957 the learned Judge allowed Smt. Mungia's application and appointed her as the guardian of the girl. Three days later, on 28-5-1957, the guardian made an application under Section 25 of the Act praying that the girl be caused to be arrested by a warrant and restored to her custody. In this application it was alleged that the girl was in the possession of the appellant Chandrapal. The application was allowed on 29-5-1957 when the learned Judge directed the issue of a warrant under Section 100 Cr. P. C. read with Section 25 of the Guardians and Wards Act for the production of the minor girl before him by the 15th of June, 1957. He held that the return of the. minor to the custody of the guardian was for her welfare. It appears that this warrant could not be executed. On 11-9-1957 the guardian Smt. Mungia filed an application in this Court under Article 226 of the Constitution for a writ of habeas-corpus directing the appellant Chandrapal and the woman Smt. Ramo to produce the girl in Court. On 26-11-1957 this Court dismissed the petition on the ground that the petitioner had made out no case for holding that the respondents were illegally or improperly detaining the girl Bhagwati and that the petition did not mention any fact to prove that the custody of the respondents was illegal. The Court observed that the case of Smt. Mungia was founded on her appointment as a guardian, but before her appointment the girl had been in the custody of the respondents who were not a party to the guardianship proceedings. On 16-12-1957 Smt. Mungia made another application before the learned Judge praying for an order directing the appellant Chandrapal to produce the girl Bhagwati. She alleged that Bhagwati was in his custody. This application was rejected on the ground that Chandrapal had not been a party to the guardianship proceedings, and therefore no order could be issued to him. On 18-1-1958 Smt. Mungia filed an application under Section 25 asking for the arrest of the minor from the house of Chandrapal and for her return to the guardian. On 15-3-1958 the application was allowed by the learned Judge, who directed a warrant to be issued as prayed. On 29-3-1958 the girl Bhagwati was arrested in the village of Chandrapal and produced before the learned Judge at his residence on the same date. The girl Bhagwati made a statement before him that she had never been married to the appellant Chandrapal but had been forcibly given to him. The learned Judge, in that very sitting, passed the order (which is under appeal) directing the girl to be returned to the custody of the respondent Smt. Mungia. He further directed that "the rest of the matter" relating to the alleged marriage of the girl would be taken up in court. He also directed the guardian to produce the girl in court on 31-3-1958. On that date the appellant Chandrapal appeared and made an application giving his version of the controversy. He alleged that he had been lawfully married to the girl. The application was not supported by any affidavit. The girl however made a statement in the presence of Chandrapal that she had never been married to him and did not want to live with him. The learned Judge directed that Chandrapal's application be listed before him for hearing on the 2nd April 1958, and also directed the guardian to produce the girl in court on that date. On 31-3-1958, however, the girl was not produced and the guardian Smt. Mungia made a statement in writing, through her husband, explaining that it was not possible to take the girl to court as there was danger of her being kidnapped by the appellant Chandrapal and his associates. The learned Judge rejected Chandrapal's application for the custody of the girl. Before passing the order of rejection he again called the girl and asked her whether she wanted to go with Chandrapal but the girl refused to do so. Needless to say, the order under Section 25 handing over the girl to the guardian remained intact. Chandrapal has come to this Court in appeal against it.
(2.) Mr. Shanti Bhushan, learned counsel for the appellant, who argued this case with ability, confined himself to one argument. He contended that the impugned order is without jurisdiction. According to him, Section 25 of the Guardians and Wards Act did not apply to the present case, as the minor had never left the custody of the guardian nor was she ever in her constructive custody and therefore there was no question of her being returned to the custody of her guardian, Learned counsel cited a large number of authorities in support of his contention that Section 25 confers jurisdiction on the Court only when the ward leaves or is removed from the custody, actual or constructive, of the guardian and the court is of the opinion that it will be for the ward's welfare to return to that custody. On behalf of the respondent guardian, Mr. R. P. Singh, who also argued this case with ability and commendable brevity, cited a number of authorities in support of his contention that the word 'custody' is not confined to actual or constructive custody but includes legal or formal custody.
(3.) There is no doubt that the words of Section 25, if narrowly and literally interpreted, would tend to support the case of the appellant. The relevant parts of this section says, "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 or the guardian." The controversy centres round the meaning and scope of the words 'removal from custody". On this point, there is a conflict of authority. On one side there is a set of decisions holding that the word 'custody' means actual custody or at the most constructive custody that is custody with the permission of the guardian. On the other side, there are decisions holding that the word 'custody' includes legal or formal custody. It is necessary to examine some of these decisions. In Achratlal Jekisendas v. Chiman Lal Parbbu Das, ILR 40 Bom 60: (AIR 1916 Bom 129), it was held that a father who never had the care or custody of his infant child cannot call upon the court by an application under Section 25 of the Guardians and Wards Act for an order upon the person in whose custody the infant is to hand him over. It was further held that Section 25 could not apply to his case for the ward had never left or been removed from the custody of the guardian. The court did not agree with the liberal interpretation by the Allahabad High Court On the word custody in Utma Kuar v. Bhagwanta Kuar, ILR 37 All 515: (AIR 1915 All 199). However this case is not helpful for two reasons. First, the court did not give its own interpretation of the word 'custody'. Secondly, the question of legal custody of a guardian appointed by the Court did not arise, for the father applied for the custody of his child as a natural guardian. In Mst. Siddiqunnisa Bibi v. Nizamuddin Khan, AIR 1932 All 215 a Division Bench of this court held that the word 'custody' in Section 25 need not be the actual physical custody but may be constructive custody. Sulaiman. Actg. C. J. observed, "even if the ward is in the actual custody of another person with the permission of the guardian he or she would be under the guardian's constructive custody." This observation is relied upon by counsel for the appellant. He contends that constructive custody arises only when one person is in actual custody of the ward with the permission of the guardian, but if the custody is hostile to the guardian, no question of constructive custody will arise. It does appear that Sulaiman, Actg. C. J. referred to the permission of the guardian in expounding the notion of constructive custody but he did not say that there can be no other kind of custody. There is nothing in this judgment to support the view that he rejected the principle of legal or formal custody. The case before him was that of a father who had applied under Section 25 for the custody of his infant girl in his capacity as natural guardian. Thus this case too throws no light on the question of legal custody. In Fatima Bibi v. S. P. Pentu Saheb, AIR 1941 Mad 944, it was held that Section 25 cannot apply unless it is shown that the ward has left or been removed from the custody of his or her guardians. This was a case of a grandmother applying for the custody of two infant grand-children who were in the custody of their father. Her application for being appointed legal guardian was rejected on the ground that the father had not been shown to be unfit to be a guardian. It was also held that Section 25 had no application unless it was shown that the ward had left or been removed from the custody of the guardian. This decision is of no help in the present case as the grandmother was not the guardian, natural or legal, and at no stage had she any kind of custody, actual, constructive or legal. The court had no occasion to interpret the meaning and scope of the word 'custody'. In Deputy Commissioner, Gonda v. Mohammed Shikoh, AIR 1934 Oudh 392, the court observed that it seemed very doubtful if Section 25 can have any application to a case in which the ward never came in the custody of the guardian and could not therefore be said to have left it or been removed from it. In this case the Deputy Commissioner of Gonda made an application under Section 491 Cr. P. C. for the issue of an order in the nature of habeas-corpus which was allowed. The party which opposed the application contended that habeas-corpus should not be issued as other remedies were open to the Deputy Commissioner to obtain the custody of the minor. In considering this question of alternative remedy, the Chief Court expressed its doubt whether Section 25 provided any remedy. This passing observation was made without considering the meaning of the word 'custody'. The case is therefore not of much assistance. In Shivawwa Balappa Rampur v. Chenbasappa Gowda Sangangowda, AIR 1941 Bom 344, it was held that the custody in Section 25 means the actual custody and that it cannot be that a minor who has never been in the custody of his guardian has either left or been removed from such custody. This was a case in which the father filed a suit asking for the custody of his child who was in the custody of an aunt (mother's sister). Subsequently the aunt applied under Section 7 of the Guardians and Wards Act to be appointed guardian of the child and to be confirmed in the custody. The father's suit was dismissed on the ground that having regard to the tender age of the child, he was better left with the aunt. In the aunt's application under Section 7 the court directed that she should remain as guardian of the person of the minor till he reached the age of 2 years, and the father was appointed guardian of the property of the minor. After the child reached the age of 2, the Judge made an order that the father should be declared the guardian of the minor and directed the aunt to hand over the minor to him forthwith. It is not clear whether this order was passed in the proceedings initiated by the aunt under Section 7 or on a separate application by the father. It is therefore not clear whether the father was ever put in legal custody of the child. The High Court on appeal held that the order commanding the aunt to hand over the minor to the father was without jurisdiction. The court made an observation about the meaning of the word 'custody' which is relied upon by counsel for the appellant in the present case. Beaumont, C. J. said, "the words are "if a ward leaves or is removed from the custody of a guardian." The custody must there mean actual custody; if it means the constructive custody, and it be said that the ward is always under the constructive custody of the legal guardian, then the answer is that there is no occasion for making an order, because it has not left such constructive custody. In my opinion custody in the Section 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." With respect, the learned Chief Justice did not apply his mind to the question whether the refusal of a person who is in charge of minor to hand it over to the father amounts to "removal" from the constructive custody of the father. His observation that "there is no occasion for making an order, because it (the minor) has not left such constructive custody", ignored the situation where the refusal to restore the minor to the father may amount in law to "removal" from constructive custody. The learned Chief Justice did confess that he would be glad to hold that restitution confers a power on the court to make an order that the guardian should have the custody in all casest but he found himself unable to extract such a meaning from the language of Section 25. But in view of his omission to consider whether the refusal to restore the actual custody to the guardian would amount to removal in law this decision loses much of its weight as an authority on the meaning of the words 'removal from custody.';