V. R. NEWASKAR, J.

( 1 ) THIS appeal arises out of husband's application under Section 25 of the guardians and Wards Act for the recovery of the custody of his minor wife from her father, brother and others. The husband had also started proceedings for restitution of conjugal rights alleging marriage. In that proceeding the marriage itself was denied. The Court, on evidence, found that the marriage was proved and a decree for restitution of conjugal rights was passed. The decree was confirmed in appeal. ( 2 ) CONTENTIONS raised on behalf of the girl's father in the present proceedings were (1) that the girl Geeta was in fact not married to the applicant and consequently he had no right to her guardianship, (2) and that she was only 10 or 11 and consequently it was not in the welfare of the girl that she should be taken away from the custody of her parents and be made over to the husband. The Court below held that the girl was married to the applicant, the finding being based on the decision in the suit for restitution of conjugal rights. It was also found that the girl was nearly 17 or 18 and not 10 or 11. On the question of husband's right Io claim guardianship of his minor wife in preference to her parents it relied upon the provisions of Section 6 of the Hindu Minority and Guardianship Act and held that the husband is statutorily the natural guardian of his minor wife and in the absence of any special consideration it was not proper that he should be given the custody of his minor wife. Reliance in this connection was placed upon the decisions reported in Mr. Richard v. Mrs. Richard, (S) AIR 1955 Mad 451; Sarada nayar v. Vayankara Amma, AIR 1957 Kerala 158 and Atchayya v. Kosaraju narhari, AIR 1929 Mad 81. The learned Judge also considered the contention that the girl had expressed her wish against her being kept in the custody of the applicant. It was however held that her wishes as expressed by her in her statement before the Court were not the result of her free and independent judgment hut were the outcome of promptings from her father. Decision reported in Venkatarama Ayyangar v. Thulasi ammal AIR 1950 Mad 320 was relied upon and that in Mt. Sheo Kumari v. Mathura ram AIR 1936 All 657 was not followed. The trial Judge, accordingly passed an order in applicant's favour for the custody of his wife Geeta.

( 3 ) THIS is an appeal both by Geeta and her father Atmaram against that decision.

( 4 ) PRINCIPAL point raised by Mr. Patel is that Geeta had never been in the actual custody of her husband and consequently there could be no leaving or removal of the minor from the guardian's custody. Therefore no petition under Section 25 of the Guardians and Wards Act was tenable. Another point put forward was that the girl had become major by now and consequently the jurisdiction under the guardians and Wards Act ceased.

( 5 ) IT is beyond dispute that with the finding as to the marriage of Geeta with the applicant he becomes the natural guardian of his wife, the present proceeding having started after the Hindu Minority and Guardianship Act, 1956, had come into force. Further question then to be considered is whether Geeta could he said to have been removed or to have left the custody of her husband. It is urged that she had never been in her husband's custody and therefore she could neither have left that custody nor could she have been removed from the same. The question is somewhat controversial. It was held by the Bombay High Court in Shivawwa v. Chenbasappagowda AIR 1941 Bom 344, that the custody contemplated under section 25 is the actual custody and not constructive custody and therefore where there is no leaving or removal of the ward from the actual custody of a guardian of his or her person condition for the exercise of power under Section 25 of the guardians and Wards Act is not satisfied, In an earlier decision of that Court reported in Noshirwan v. Sharoshbanu AIR 1934 Bom 311, a wider import was attached to the term c

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