Mack, J.-Petitioner, a student aged 20, has applied under section 491, Criminal Procedure Code, to recover the custody of his wife, Padmavathi Ammal, aged 17, by the issue of a writ of Habeas Corpus, alleging that she was illegally and improperly detained by her mother, the first respondent and her brothers, respondents 2 and 3. I am very doubtful as to the admissibility of this petition which I was inclined to dismiss in limine but for reliance placed on the Bench decision Subbuswami Goundou v. Kamakshi Ammal1 by Beasley, C.J. and Ananthakrishna Aiyar, J. I admitted the petition with notice to the respondents and the petition has been heard by us as a Vacation Bench.

Padmavathi Ammal readily appeared before us accompanied by her mother and she says she left her husband of her own accord owing to ill-treatment by his mother and grandmother, who both live in his house. She fully bears out the affidavit filed on behalf of the respondents that they have nothing whatsoever to do with her leaving her husband their not keeping her from him against her will.

We have carefully considered whether this is a fit case in which we should exercise the discretion conferred on us by section 491, Criminal Procedure Code and pass an order which we think should more properly be passed by a Guardian and Wards Court under section 25 of the Guardians and Wards Act where considerations of the welfare of the minor as prescribed by the Statute can and should be taken into consideration. Section 25 of the Guardians and Wards Act runs thus:

“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 be delivered into the custody of the guardian.”

We have no hesitation in holding that this minor on the threshold of majority is not in the circumstances improperly detained by her mother. In strict law, her husband is her legal guardian but this by itself would not be sufficient to support a finding except in a strictly technical sense that solely on this ground, she is being “illegally detained” in her mother’s custody. We do not think that section 491, Criminal Procedure Code, was intended to confer on a husband an absolute right to recover the custody of his minor wife, no matter how he may ill-treat her, from the custody of her mother. Section 491, Criminal Procedure Code, is also discretionary and not mandatory. We have carefully considered the decision Subbuswami Goundan v. Kamakshi Ammal1 in which the facts were different. There the girl was much younger and the learned Bench found that she had been specifically tutored by her mother and her family to express determined unwillingness to return to the house of her husband. It is true that objection was taken there that the petitioner had not chosen his correct remedy and that he should have sought relief under the Guardians and Wards Act. The learned Judges negatived that view and held that the remedy under section 491, Criminal Procedure Code, was one open to the petitioner. Reliance was placed on Byrant v. Bull2, and the dictum of Bacon, V.C., that it did not matter how many remedies were open to a person, who was entitled to avail himself of one of them. With great respect, we are in agreement and do not think that in every case a husband, who seeks to recover the custody of his wife, should proceed by way of section 25 of the Guardians and Wards Act and has no remedy under section 491, Criminal Procedure Code. For instance if the petitioner had been able to satisfy us that his minor wife was being detained against her wishes by her mother and her family or that she was being-used for improper purposes, we should not have had the slightest hesitation in affording the petitioner relief under section 491, Criminal Procedure Code. The decision in Subbuswami

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