JUDGMENT T.S. Krishnamoorthy Iyer, J. 1. The appeal arises out of a petition filed by the respondent under S.25 of the Guardian and Wards Act for the custody of her minor grandchild by name Nisa from the appellant who is the father of the child. 2. The respondent's daughter Arifa Beevi married the appellant on 12-10-1967 and Nisa is the child born to them on 12-8-1968. 3. Arifa Beevi was taken to the respondent's residence 'Moon Vilas' in Vallakkadavu in Trivandrum for her confinement. Arifa Beevi died on the twelfth day of her confinement. It is common ground that the child was with the respondent for a period of three months after its birth. But the averment of the respondent in the petition is that the child was in her custody till 13-9-1969 and the appellant removed the child without her consent. A registered notice Ex. P 19 j dated 15-9-1969 was sent by the respondent through her counsel to the appellant for the return of the child. Ex. P 20 is the reply given by the appellant. The petition under S.25 of the Guardian and Wards Act was filed by the respondent on 22-9-1969. The learned additional District Judge of Trivandrum allowed the petition and directed the appellant to deliver back the child to the respondent. The appeal is filed against the decision of the lower court. 4. The parties are Muslims following the principles of Mohammedan Law. The minor in question is a female child. The trial court found that the child was in the custody of the respondent till 13-9-1969 when she was removed by the appellant. The learned Judge also found that even though the appellant is the natural guardian of the minor child the respondent is entitled to her custody under Mohammedan Law and allowed the petition. 5. The main contention raised by counsel for the appellant was that a petition under S.25 (1) of the Guardian and Wards Act will not lie for getting custody of a minor child from the natural or legal guardian. Before examining the correctness of this submission it is necessary to state the principles of Mohammedan Law in regard to the custody of minor children. 6. Before examining the correctness of this submission it is necessary to state the principles of Mohammedan Law in regard to the custody of minor children. 6. Under Mohammedan Law even though the father is the guardian of the person and property of the minor the mother is entitled to custody of her male child until he has completed the age of seven and of her female child until she has attained puberty. Failing the mother, the custody of a boy till the age of seven and of a girl who has not attained puberty, belongs to the mother's mother in the order of preference. 7. It is therefore clear that even though the father is the primary and natural guardian of his minor children the right of custody (hizanat) is with the mother and the female relations, but the said custody is only subject to the supervision of the father which he is entitled to exercise by virtue of his guardianship. Even though a mother is entitled to the custody of her children she is not their guardian. It was pointed out in Imambandi v. Mutsaddi (1918 (45) IA 73): "It is perfectly clear that under the Mohammedan Law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Sunni Law) is the legal guardian." 8. A father is under Mohammedan Law entitled to the custody of his son only Her he has completed the age of seven years and of his daughter only after she has attained the age of puberty. It is clear that in the case before us the preferential right to the custody of the child is with the respondent who is the maternal grandmother. Mulla on Mohammedan Law at page 326, Para.354 (sixteenth edition) enunciates the grounds to disqualify a female including the mother to the custody of the minor child. The learned author says: "A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody - (1) if she marries a person not related to the child within the prohibited degree (Ss. The learned author says: "A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody - (1) if she marries a person not related to the child within the prohibited degree (Ss. 260-261) e.g., a stranger, but the right revives on the dissolution of the marriage by death or divorce; or, (2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or, (3) if she is leading an immoral life, as where she is a prostitute; or, (4) if she neglects to take proper care of the child." 9. We shall now consider the question whether there is anything in S.25(1) of the Guardian and wards Act to bar the claim of the respondent. The said provision reads: "25(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 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." Sub-sections (2) and (3) of S.25 are not necessary and therefore they are not extracted. 10. The plea by appellant's counsel was that an application under the above provision can lie only when a ward leaves or is removed from the custody of a guardian of his person and for restoration of the ward to the custody of that guardian. The submission on behalf of the appellant was that the effect of the petition in the case before us is to remove the custody of the ward from the natural guardian-the father and in such circumstance S.25 cannot have any application. The term "guardian" is defined in S.4(2) of the Guardian and Wards Act in the following manner: " 'Guardian' means a person having the care of the person of a minor or of his property, or of both his person and property." A person who is entitled to mere custody of a minor can also come within the definition, in view of the words "a person having the care of the person of a minor" occurring in the Section. In Noshirwan Manckshaw Nanavati v. Sharoshbanu Noshirwan Nanavati (AIR 1934 Bom. 311) it was observed: '' Under the Act the word 'guardian' has been defined as meaning a person having the care of the person of a minor or of his property or both. The word is used in a wide sense. It does not necessarily mean a guardian duly appointed or declared by the Court, but includes a natural guardian, or even a de facto guardian." If S.25 is interpreted in the light of the definition clause, we have only to overrule the plea of the appellant and hold that the petition under S.25. (1) is maintainable. 11. We shall now examine the decision in Mt. Siddiquinnisa v. Nizamuddin (AIR 1932 All. 215) on which considerable reliance was placed by counsel for the appellant. There the father of a girl of about seven years filed a petition for custody of the minor from the maternal grandmother of the child. The mother of the child died at Sasaram where her husband was residing a few days after child birth. The maternal grandmother of the child was then residing at Zamania in another district. The grandmother was permitted by the father to take the child from Sasaram to Zamania and the child was in her custody for some years. Then she filed an application for being appointed as the guardian of the person of the minor child. The father apart from objecting to the appointment of the maternal grandmother as guardian of the minor also filed an application under S.25 of the Act for the return of the. minor to him. The District Judge refused the prayer of the grandmother and allowed the application of the father by directing the return of the child to him. The appeal before the Allahabad High Court was filed by the maternal grandmother against the order directing the return of the child to the father. In the course of his judgment Sulaiman, Ag. C. J., observed: "It is urged before us that the husband and the father are the natural guardians of the minor child and are always entitled to apply under S.25 as against (he mother or other relations. In the course of his judgment Sulaiman, Ag. C. J., observed: "It is urged before us that the husband and the father are the natural guardians of the minor child and are always entitled to apply under S.25 as against (he mother or other relations. S.25 provides that 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 before the welfare of the ward to return to the custody of his guardian, may make an order for his return. The necessary condition for the exercise of the discretion given by S.25 is that the ward should have left or have been removed from the custody of the guardian of his person. If the ward has not left or has not been removed from such 1 custody, it is difficult to sec how the section would apply. At the same time it must be conceded that the custody need not be the actual physical custody of the minor and may even be a constructive custody of the guardian. This view was expressed by Lindsay, J., in the case of Mushaf Husain v Mohammad Jawad, (1918) 21 O.C. 194 - 48 I.C. 60. and has been followed by the other Courts also, except perhaps in Bombay. There is no reason to restrict the meaning of the word 'custody' to the physical or actual custody of the minor. Even if the ward is in the actual custody of another person with the permission of the guardian, he or she would be under the guardian's constructive custody. S.25(3) indicates that the residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardian ship. Accordingly the constructive guardianship will continue. At the same time I would not be prepared to hold that if under the personal law governing the minor she is for the time being in the custody of the de jure guardian, the Court has full power to remove the child from that custody and place it in the custody of another person who may also come within the definition of the expression 'guardian of the person' though not duly appointed or declared by the Court . In my opinion in such a case the ward cannot be said to have left or have been removed from the custody of a guardian." 12. Counsel for the appellant leaned heavily on the above observations to contest the sustainability of the application under S.25(1) of the Guardian and Wards Act. If the definition of "guardian" under the Guardian and Wards Act can include persons who are entitled to legal custody of a minor child the fact that the child is taken away by the natural or legal guardian of the person of the minor duly declared or appointed by court cannot leave the 'guardian' entitled only to legal custody of the minor without the remedy under S.25(1) of the Guardian and Wards Act. The observations of Sulaiman, Ag. C.J., are merely obiter and are not necessary for the decision of the case. The learned Judge also agreed that the expression "guardian" defined in the Guardian and Wards Act is used in a very wide sense and will even include persons who are entitled to mere custody of the child. The learned Judge observed: "Under the Guardian and Wards Act however the word 'guardian' has been defined as meaning a person having the care of the person of a minor or of his properly. Thus the word 'guardian' is used in a very wide sense and does not necessarily mean a guardian duly appointed or declared by the Court. Any person who has the care of the person of the minor is a guardian of the person, and any person who has the care of the property of the minor is a guardian of the property within the meaning of this Act." This view is only in accord with the principles of Mohammedan Law. In Tayyabji on Muslim Law, 1968 edition, page 214, Para.233, it is observed: "Guardianship of the person is referred to in Muslim texts as hizanat also hadanat or custody." 13. A person entitled to legal custody of a minor in Muslim Law is the guardian of the person of the child under the said law. In Tayyabji on Muslim Law, 1968 edition, page 214, Para.233, it is observed: "Guardianship of the person is referred to in Muslim texts as hizanat also hadanat or custody." 13. A person entitled to legal custody of a minor in Muslim Law is the guardian of the person of the child under the said law. When once it is found that a person having legal custody of a minor or is entitled to such custody is guardian within the meaning of the Guardian and Wards Act, it is not possible to hold that S.25 of the Guardian and Wards Act has no application, on the ground that the relief sought for is against the natural guardian or against the person declared to be the guardian. To sustain the applicability of S.25(1) it is enough if a ward leaves or is removed from the custody of a guardian of his person. The Allahabad High Court disallowed the prayer of the maternal grandmother because of the finding that she was disqualified to have the custody of the child and the hizanat accordingly terminated and the paternal grandmother who is also one of the petitioners with the father was found entitled to the custody of the child. The decision of the case therefore ultimately turned on these findings. 14. The decision in Mt. Siddiquinnisa v Nizamuddin (AIR 1932 All. 215) will lead to the result that when a Muslim father who is the natural guardian of his ward removes a minor girl or minor boy from a person entitled to the lawful custody of the minor such person cannot have any remedy at all. Counsel for the appellant submitted that the remedy of the respondent is otherwise than a petition under S.25 of the Guardian and Wards Act. The maintainability of a suit for the purpose is open to serious doubt. 15. On the other hand, counsel for the respondent relied on the observations of Krishnaswamy Nayudu, J., in Zayanab Bi v. Md. Ghouse Mohideen ( AIR 1952 Mad. 284 ) to the following effect: "In my opinion, it is not necessary for a person, as in this case of a Muslim mother, to I show that she is legal or natural guardian in order to entitle herself to the relief given under S.25. It is sufficient if she is a person having the care of the person of the minors. It is sufficient if she is a person having the care of the person of the minors. It is therefore for consideration whether a Mahomedan mother, under her personal law is entitled to the care of the person of the minors - in this case, the minors are a girl of five years old and a boy of the age of two years. Parties being Hanafees, the mother is entitled to hizanat or custody of the male child until he has completed the age of seven years, of the female child until she has attained puberty. Obviously therefore the mother, under Mohammedan law, is entitled to the care of the person of her minor daughter until she attained puberty and of her minor son until he attains the age of seven years. In this view, a Mahomedan mother comes within the definition of a guardian under the Guardians and Wards Act. If she comes within the scope of the definition of 'guardian' under the Guardians and Wards Act, the petition under S.25 of the Act is maintainable." We follow the above observations in preference to Mt. Siddiquinnisa v. Nizamuddin (AIR 1932 All. 215). 16. It may be that the right to custody of a child given to a female relation under Mohammedan Law will not enable her to get herself declared as the legal guardian F of the person of the minor. It is true that during that custody the right of supervision and control of the minor is with the natural guardian of the person of the minor. But that will not deprive the mother or the female relation to the custody of the children up to the particular age. The wording of S.25 also shows that an application of the type before us is maintainable. The necessary ingredient to an application under S.25 is the leaving of the ward or the removal of the ward from the custody of a guardian of his person. The wording of S.25 also shows that an application of the type before us is maintainable. The necessary ingredient to an application under S.25 is the leaving of the ward or the removal of the ward from the custody of a guardian of his person. The fact that the person to whose custody of the ward goes or who removes the ward from a person legally entitled to custody happens to be the natural guardian is immaterial for considering the maintainability of an application under S.25 of the Guardian and Wards Act So long as the respondent has not become disqualified from exercising the right of hizanat the said right can be enforced even against the father under S.25 of the Guardian and Wards Act. The fact that there is a competition between the maternal grandmother and the father of the child cannot leave the maternal grandmother without any remedy to get the custody of the child from the father. The fact that there is a competition between the maternal grandmother and the father of the child cannot leave the maternal grandmother without any remedy to get the custody of the child from the father. In Hamilton's Musalman Laws (second edition), at page 139 dealing with hizanat it is observed: "The right of Hizanat, with respect to a male child, appertains to the mother, grandmother or so forth, until he becomes independant of it himself, that is to say, become capable of shifting eating, drinking, and performing the other natural functions without assistance; after which the charge devolves upon the father, or next paternal relation entitled to the office of guardian, because, when thus far advanced, it then becomes necessary to attend to his education in all branches of useful and ornamental science, and to initiate him into a knowledge of men and manners, to effect which the father or paternal relations are best qualified - (Kasaf says that the Hizanit, with respect to a boy, ceases at the end of seven years, as in general a child at that age is capable of performing all the necessary offices for himself, without assistance.) - But the right of Hizanit with respect to a girl appertains to the mother, grandmother, and until the first appearance of the menstrual discharge (that is to say, until she attains the age puberty), because a girl has occasion to learn such manners and accomplishment as are proper to women, to the teaching of which the female relations are most competent; but after that period the charge of her property belongs to the father, because a girl, after maturity requires some person to superintend her conduct, and to this the father is most completely qualified." 17. There is no circumstance pointed out or proved to disqualify the respondent for the custody of the girl until the age of puberty. 18. There was a fervant plea by counsel for the appellant that the courts have a duty to take into account only the welfare of the minor and that it shall be the paramount consideration in deciding the right to custody of the child whatever may be the personal law of the parties. S.17 of the Guardian and Wards Act was relied on in this connection. S.17 of the Guardian and Wards Act was relied on in this connection. In view of S.17 it is necessary to examine whether the court should allow the welfare of the minor to override the personal law of the parties. The court should always presume that the personal law relating to a minor is for it welfare. In cases where it is possible for the court to ascertain the volition of the minor it may be taken into account to mould the decision of the court. If the minor is too young to exercise any intelligible choice the court will have to look to the legal principles to see who is entitled to the custody of the minor and the court should always assume that the law providing for legal custody is always for the welfare of the minor. But the court is not always bound to give the child to the custody of the person legally entitled if it is not conducive to the welfare of the minor. It may be that the appellant and his parents will be affectionate towards the child and they will also zealously look after her interest. But that is not a circumstance sufficient to deny the respondent the legal right which is given to her by the Muslim Law. Counsel for the appellant contended that this principle of Mohammedan Law is archaic which is quite unsuited to modern times. We are not prepared to agree with such a sweeping submission. In so far as legislature has not interfered to alter the personal law of the Muslims the courts are bound to give effect to the same. The child in the case before us was on the date of the petition only a little over one year and at present the child is about 2 1/4 years. At this tender age there is absolutely no reason why we should prefer the father to the maternal grandmother. Counsel for the appellant was at pains to prove that the evidence for the forcible removal of the child by the appellant on 13-9-1969 is absolutely meagre and not worthy of credit. In our view, it is not necessary 10 enter a finding as to whether the forcible removal of the child on 13-9-1969 has been proved. It is clear that the respondent did not voluntarily surrender the child to the appellant. In our view, it is not necessary 10 enter a finding as to whether the forcible removal of the child on 13-9-1969 has been proved. It is clear that the respondent did not voluntarily surrender the child to the appellant. That is clear from the registered notice issued by her Ex. P. 19. We are also unable to appreciate the plea of the appellant's counsel that the desire on the part of the respondent for the custody of the child is to enjoy her properties and ornaments left behind the mother of the child. It may be necessary to admit the child to school after she completes 51/2 years in age in which case the custody of the father may be more advantageous to the interest of the minor. But that is not an aspect on which we should express any opinion at this stage. Taking into consideration the present age of the child we do not think it is necessary for us to interfere with the discretion exercised by the learned District Judge in giving the custody of the child to the mother. 19. It was argued on behalf of the appellant that if the child is allowed to remain in the custody of the respondent the appellant will lose interest in the child and at the time when it becomes necessary for him to have the child in his custody he will be indifferent to her. This argument if accepted will only thwart the right inherent in the female relations for custody of minor children. We, therefore, do not find any reason to interfere with the order of the court below. We dismiss the appeal. But we make no order as to costs. 20. We reserve the right of the appellant to renew the application for custody when the child completes the age of 6 or when the respondent becomes disqualified to have the custody of the child. 21. Before parting with this appeal we record the assurance given to us by respondent's counsel that in the matter of bringing up the child the respondent will always abide by the directions of the appellant and will give all facilities to the appellant and his parents to visit the child whenever he or they like.