J. B. MEHTA, S. H. SHETH, J.

( 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 fro

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