JUDGMENT

Bennet, J. - This is an application which has been made to this Court u/s 491, Criminal P.C., by Mt. Haidari Begum who was married to the opposite party Saiyed Jawad AH Shah known as the Mian Sahab of Gorakhpur. The application is that the minor son aged 4 years of the parties should be brought before this Court and be delivered to the applicant. It is stated that on 29th July 1933, the applicant left Gorakhpur to go to the house of her father in Lucknow and she expected her husband to follow with the child, but her husband did not come or send the child, and on the 2nd August, she received a letter from her husband divorcing her. Her husband has kept the child. She has therefore made this application as under the Mahomedan law the mother is entitled to the guardianship of a child under 7 years of age. Now, the first question which arises is whether this Court should exercise its discretionary power u/s 491 in this matter. The discretionary power is given by the following words : "Any High Court may, wherever it thinks fit, direct." In the present case it appears to me that there is another form of procedure which may be adopted by the applicant under the Guardian and Wards Act, and the question is which of these forms of procedure should be adopted in the present case. I will briefly refer to the sections of the Guardians and Wards Act, 8 of 1890, which apply. u/s 7 the Court may appoint a guardian for a minor. The Court is not tied down to select as guardian the natural guardian under the personal law of the minor; that is, the Court in the present case is not bound down to appoint the mother as guardian. The criterion in Section 7 is:

Where the Court is satisfied that it is for the welfare of a minor that an order should be made.

2. u/s 12(1) the Court may direct that the person having the custody of the minor shall produce him. It is therefore open to the Court of the District Judge of Gorakhpur to entertain an application u/s 12 for the production of this minor. u/s 45(1)(a) if the person having the custody of a minor objects to produce him or cause him to be produced in compliance with a direction u/s 12(1) such person in liable to a fine not exceeding Rs. 100, etc., and to detention in civil jail until he undertakes to produce the minor or cause him to be produced. The District Court therefore can enforce its order for production of the minor by detention in the civil jail. There is no doubt therefore that under the Guardians and Wards Act, the District Court has ample powers to compel the production of a minor from the custody of any person. Now, the following considerations arise in regard to the two methods of procedure which are open to the applicant in this case:

(1) The power u/s 491, Criminal P.C., is a general power of the nature of a Habeas Corpus. The power under the Guardian and Wards Act, is a power under a Special Act, dealing with a special subject, that is, the subject of minors. I consider that where there is a Special Act dealing with a special subject resort should be had to that Act instead of to a general provision. In the present case it is more desirable that the matter should be heard under the Special Act because there are provisions in the Special Act such as Section 7 which indicated to the Court how it should procee, whereas in the general provision in Section 491, Criminal P.C., there are no special provisions to indicate to the Court as to how it should proceed in the case of a minor. No doubt Sub-section (1)(a) states that the person when produced should be dealt with according to law, and therefore the Court may refer to the Guardians and Wards Act, as indicating the law on the subject, but it appears to me that it is more convenient that the case should be considered under the Guardians and Wards Act.

(2) The next point is that under the Guardians and Wards Act, the inquiry could be made at Gorakhpur where the husband and the child are residing, and where the applicant has been residi