VENKATARAMA AYYANGAR Vs. THULASI AMMAL

JUDGEMENT

(1.) This appeal arises out of a petition by the mother of the minor, aged about 13, her natural guardian, under Section 25 of the Guardians and Wards Act for recovery of her custody from her paternal aunt's husband. The petitioner succeeded in the Court below.

(2.) It is argued for the appellant that the mother does not satisfy the definition of " guardian " in Section 4, Sub-section (2) of the Guardians and Wards Act and that her petition under Section 25 of the Act is not therefore maintainable. The point made is that she is not a person in truth and in fact having the care of the person of the minor because it is the paternal aunt and her husband that are actually having such care. It is also said that she is not a guardian appointed or declared as such. I do not agree. Noshirwan V/s. Sheroshbanu (1933) I.L.R. 58 Bom. 724 supports my view. It is there held that the word " guardian " in the section is used in a wide serise and does not necessarily mean a guardian duly appointed or declared by the Court but includes a natural guardian or even a de facto guardian.

(3.) It is argued next that a de jure guardian, not proved at one time to have had the physical care or custody of the girl, is not entitled to apply under Section 25 of the Act complaining of removal and asking for return of the ward to the applicant's custody. There again the same ruling is in point and adverse to the appellant inasmuch as it holds that the section is not limited in its operation to the power of the Court to enforce the guardian's right only in extreme cases of an actual leaving or removal of the ward from the guardian. As ruled by a Bench of this Court in Atchayya V/s. Kosaraju Narakari , the refusal by a person to deliver the child to its natural guardian when asked to do so by the latter amounts in effect to a removal from his custody and he can therefore apply under Section 25 of the Act.