( 1. ) THIS is an appeal under section 47 of the Guardian and Wards Act (hereinafter referred to as the Act ).

( 2. ) THE parties are Mahomedans and areas such governed by Mahomedan law. The appellant Kalimunnisa, aged about 22 years was married to the respondent Shah Salim Khan aged about 30 years. On 10-10-1964 a son named Shahjahan was born to them. Some time in the year 1969 or so the appellant was divorced by her husband. Since then Shahjahan has been living with his mother. It appears that the appellant had instituted proceedings against the respondent for maintenance of the minor Shahjahan and a sum of Rs. 10 per month was fixed by the Court for the maintenance of the minor. After shahjahan completed the age of 7 years, the respondent filed an application under section 10 of the Act praying that he be appointed as guardian of the minor and the minor be placed in his custody. This application was, opposed by the appellant. The application was, however, allowed by the trial Court and the appellant was directed to transfer the custody of the minor to the respondent within a period of 15 days. Being aggrieved by the said order the appellant has preferred this appeal.

( 3. ) SHRI K. . VI. Agrawal, learned counsel for the appellant raised a preliminary objection that since the respondent being the father of the minor is his natural guardian under the personal law, it was not necessary for him to file an application under section 7 for appointing and declaring him as his guardian and, therefore, the entire proceedings are misconceived. There is no doubt some force in this contention. It was not necessary for the respondent to file an application for declaring or appointing him as guardian. The proper course for him was to file an application under section 25 of the Act for obtaining custody of the minor. From the language of this section it no doubt appears that it is attracted only where a ward leaves or is removed from the custody of a guardian but the repudiation by a person in charge of a minor of the right of the guardian to resume the custody of the minor amounts to removal within the meaning of this section. In Brijendra Narayan Ganguly v. Chinta Haran sarker, 1961 MPLJ 208. it was held that the act of the non-applicants in repudiating the right of the applicants to resume custody of the child amounted to removal within the meaning of section 25 of the Act. Thus, the application filed by the respondent in the lower Court may be treated as an application under section 25 of the Act and dealt with accordingly.

( 4. ) UNDER the Mahomedan Law father is the primary and natural guardian of his children. The mother is entitled to the custody of her male child until he has completed the age of 7 years and of her female child until she has attained puberty; but even this right of custody of the mother is subject to the supervision of the father which he is entitled to exercise by virtue of his being the guardian of the minor under the law. In fact under section 19 of the Act, the court has no jurisdiction to appoint or declare a guardian of the person of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor. It has not been expressly pleaded by the appellant that the respondent is unfit to be the guardian of the minor. No evidence on the point can, therefore, be looked into and in fact the learned counsel for the appellant did not urge before me that the respondent is unfit to be the guardian of the minor. The application filed by the respondent must, therefore, be considered treating him as the lawful guardian of the minor.

( 5. ) UNDER section 25 of the Act the Court is competent to make an order for the return of the ward to the custody of his guardian only if it is of the opinion that it will be for the welfare of the ward to do so. Thus, the welfare of the ward is the deminent consideration in such matters.

( 6. ) ORDINARILY the guardian has the right to