After the enactment of the Hindu Minority and Guardianship Act, a person cannot claim to be the legal guardian of a Hindu minor unless they satisfy the definition in the Act.

1. This petition is to revise the finding of maintainability of an application, for the custody of a minor Hindu girl aged 7 years, moved by the mother against the father.

2. The facts are thus: The parents with their children were living together in Palghat till March 21, 1960, when the mother left the father taking with her the girl who is their last child. In April 1960, the father shifted his residence to Madras taking with him the other children. The mother returned to Palghat thereafter, and the girl resumed school-going. On September 14, 1960, the father came down to Palghat and took the girl from the school to Madras. On September 22,1960 the mother moved the instant application, under S.25 of the Guardian and Wards Act, 1890, praying,

"The Honourable court be pleased

(a) to direct the respondent to produce the minor girl before this court and to order that the girl be restored to the custody of the petitioner;

(b) to order the respondent to pay the petitioner her costs in this proceedings; and

(c) to grant all other just and incidental reliefs as the court deems fit and proper."

An objection as to the maintainability of the application having been raised by the father, the District judge decided it as a preliminary issue in the case and found for the applicant. He held the mother 'a guardian" of the child and therefore entitled to move the application; and his reasoning ran thus:

"Guardian' is defined in the Guardian and Wards Act as follows:

'Guardian' means a person having the care of the person of a minor or of his property, or of both his person and property.'

From the allegations in the petition it is clear that the petitioner will be a guardian as defined in S.4 (2) of the Guardian and Wards Act. In the Hindu Minority and Guardianship Act, 1956,'guardian'is defined as follows:

"Guardian' means a person having the care of the person of a minor or of his property or of both his person and property, and includes (1) a natural guardian, (ii) a guardian appointed by the will of the minor's father or mother, (iii) a guardian appointed or declared by a court and (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards."

Natural guardian is defined in S.6 and it reads at follows:

The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) are

(a) in the case of a boy or an unmarried girl the father, and after him, the mother: Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father;

(c) in the case of a married girl the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi ).

Thus it will be seen that even under the Hindu Minority and Guardianship Act, a person having the care of the minor is also a guardian. In order to file a petition under S.25 the person who applies under the Act should be a guardian and that any person who can be considered to be a guardian as defined in S.4 (2) Guardian and Wards Act can file a petition. (Mt. Parem Kaur Banarsi Das AIR. 1934 Lah.1003; Venkatarama Ayyangar v. Thulasi Ammal AIR. 1950 Mad. 320 and Jiban Krishna v. Sailendra Nath AIR. 1946 Cal. 272 were cited, and then he continued) Thus it will be seen that the petitioner is a'guardian' of the ward as defined in the Guardian and Wards Act and the Hindu Minority and Guardianship Act."

3. The learned Advocate General appearing for the revision-petitioner contended that an application for custody of a seven year old Hindu child cannot be maintained by the mother against the fath