JUDGMENT: This appeal arises out of the proceedings started by the present appellant under the Guardians and Wards Act (VIII of 1890) for being appointed as the guardian of her minor daughter Benibai, and for getting custody of the child. The appellant and the respondent were married before 1952 and the minor Benibai was born to them on 26th September 1952. It seems that disagreement arose between the married couple and it would appear that a criminal case was filed against the husband. Ultimately there was a compromise and on 27th April 1955 there was an agreement between the parties granting divorce to the wife according to caste custom and a term of that compromise appears to be that the appellant was to hand over the custody of her daughter to the respondent Dhanush, her husband and accordingly the respondent got the custody of the child. Soon after this divorce, it appears that the respondent married again and on 27th June 1955, the present application was filed by the appellant for appointment of herself as the guardian of the minor daughter and for getting custody of the child. The principal ground on which the application was made was that the child was of a very tender age and wanted the mothers affection and rearing, and since the respondent had married again, there was every likelihood of the child being ill-treated by the husband and the step-mother. The application was resisted by the husband who set out in the written statement the circumstances under which the divorce came to be effected, and it is admitted that he was not pre pared to give the wife divorce unless his daughter was given to him. He denied that the minor was being ill-treated or was likely to be ill-treated and he stated that she was being brought up with the greatest care, love and affection and he affirmed that the general state of the minor had improved. He stated that the apprehensions of the applicant that the minor was likely to be neglected were imaginary and baseless. He also stated that the applicant was dependent on her father and was likely to marry again in the near future, and there fore, it was desirable that the minor should re main with the non-applicant, he being her natural guardian. He denied that there was any pressure on the applicant when she handed over the custody of the child to him. He, therefore, prayed that the application should be dismissed with costs. The trial Court came to the conclusion that it was not in the interests of the minor to appoint the applicant as guardian of the person of the minor, be cause it held that the husband was not unfit to act as the guardian of the minor. The trial Court came to the conclusion that the non-applicant had married another wife, but that was no ground that Benibai would be neglected. The trial Court also relied, upon the fact that the husband demanded back the minor when giving divorce which, according to it, showed his love for the child. On these grounds, the application of the appellant was dismissed.

(2) Now, in this appeal Mr. C. S. Dhanmdhikari, the learned counsel appearing on behalf of the appellant has taken me through the relevant record of the case, since unfortunately the respondent is not represented by any counsel. Mr. Dharmadhikari contends that the learned Judge has taken a very narrow view of the evidence and has refused to accede to the request of the appellant for being given the custody of her child on he ground that the natural guardian, the father, was not an unfit person to act as the guardian, and Mr. Dharmadhikari naturally contends that this is not the proper test in considering applications the Guardians and Wards Act. Under Hindu Law, the father would be the natural guardian: but in considering the question as to whether the father should have the custody of the child or the mother when the two are separated, the Court has to consider primarily the interests of the minor and in arriving at a decision the Court has to take into consideration all the ci

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