JUDGMENT :- This appeal is directed against an order of the learned Senior Sub-Judge Mahasu, whereby a petition filed under Sec. 25 of the Guardians and Wards Act, was dismissed on the ground that it was not maintainable.

2. The petitioner was married to the respondent. About 13 months prior to the filing of the petition the respondent left the house of the petitioner and subsequently a male child, for securing whose custody, the present petition has been filed, was born at the house of the respondents parents. The marriage between the parties has been declared to be null and void as a result of a petition filed by the respondent. The learned Senior Sub Judge was of the opinion that as the child for securing whose custody the petition under consideration was filed was not removed from the custody of the petitioner, it was not maintainable.

3. The only question that arises for decision is as to whether the petition was maintainable. Sub-Sec. (1) of Sec. 25 of the Guardians and Wards Act reads as below :

"(1). 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 of the guardian."

4. There is divergence of Judicial opinion on the interpretation of the words "is removed from the custody of a guardian of his person". It has been held by the Bombay High Court, in the case of Shivawwa Balappa v. Chenbasappagowda Sangangowda, AIR 1941 Bom 344, that :

"Custody in Sec. 25 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."

5. The same view prevails in the Rangoon High Court vide, Manoo Ali v. Hawabi, AIR 1936 Rang 63. The Punjab, Allahabad and Calcutta High Courts have, however, expressed a different view. It was held in the case of Smt. Samitran Devi v. Suba Ram, AIR 1961 Punj 151 that the remedy of a guardian who has been denied the custody of his child from its very birth must be found within the four corners of the Guardians and Wards Act. Custody meant both actual and constructive custody and likewise the word removal was not limited to physical removal and constructive removal also falls within the ambit of that word and that refusal by the person having the constructive custody of the child to hand over the child to the father would amount to removal from the custody of the father.

6. In the case of Chandrapal v. Smt. Mugia, AIR 1951 All 549, the word custody as used in Section 25 was construed to mean not only actual or constructive custody but also legal or formal custody. For the Calcutta view reference may usefully be made to Jwala Prasad Saha v. Bachu Lal, AIR 1942 Cal 215. In the Madras High Court the current of authority has not been uniform. In the case of Venkatarama Ayyangar v. Thulasi Ammal, AIR 1950 Mad 320, the words "removal from custody" as used in Section 25 referred to above were given a wider meaning and were held to cover refusal by person to deliver child to its natural guardian when asked to do so. In the earlier cases vide Fatima Bibi v. Peda Pentu Saheb, AIR 1941 Mad 944, the narrower construction was favoured. The interpretation of the words "rentoval from custody" as used in Section 25 referred to above came up for consideration before Chowdhury, Judicial Commissioner in the case of Mst. Rakhi v. Garib Das, AIR 1953 Bilaspur 26, and on a review of the earlier case law he preferred the view which prevailed in the Calcutta High Court and in some of the cases of the Madras High Court. The Bombay view was not followed by him.

I respectfully agree with the view expressed in the AIR 1953 Bilaspur 26 case. The result of putting a narrower interpretation on the words "removal from custody" as used in Section 25 referred to above wou

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