JUDGMENT B.D. Agarwal, J. - The parties are Mohammedans governed by the Hanafi law. They were married in or about the year 1977. A male child was born during the wedlock in April, 1979. The Respondent applied u/s 25 of the Guardians and Wards Act, 1890 on January 30, 1980 for delivery of the child into her custody alleging that she was expelled from the house by the husband in January 1980 and the child removed from her and, further, that the Appellant divorced her on January 12, 1980 in writing in the from of Talak-i-bain. The application was opposed by the husband but allowed by the learned District Judge on 16th March 1982. It was found upon the evidence recorded in the case that the child was not abandoned by the mother as contended by the Appellant but that she was forcibly deprived of the custody and that in the interest of the welfare of the child he should be restored to the mother's custody. Aggrieved, the father preferred this appeal u/s 47(c). 2. When this appeal came up before a learned Single Judge, the Appellant placed strong reliance on a dicision of G.D. Sehgal, J. reported in Hasmat Ali Vs. Smt. Suraya Begum, AIR 1971 All 260 . For the Respondent an unreported decision of D.S. Mathur, J. in F.A.F.O. 166 of 1965 Smt. Razia v. Siraj Ahmad decided on 19-10-1965 was cited. The learned Single Judge found himself in disagreement with the view taken by Seghal, J. in Hasmat Ali's case (supra) and hence referred the case for decision by a larger Bench. As an interim measure, however, he directed on October 18, 1982 that the child be restored to the Respondent's custody by the Appellant. This is how the case is before us for decision. 3. Learned Counsel for the Appellant contended that being the father the Appellant is the natural and legal guardian of the child. In the absence of any lack of fitness on his part, the mother cannot, it is submitted, apply u/s 25 for custody of the child, and that in case she has any right, the remedy may be in a suit for the purpose. 4. The Respondent's learned Counsel on the other hand referred to the definition of the expression 'guardian' in Section 4(2) of the Guardians and Wards Act and urged that this is wide in scope. 4. The Respondent's learned Counsel on the other hand referred to the definition of the expression 'guardian' in Section 4(2) of the Guardians and Wards Act and urged that this is wide in scope. Till the child attains the age of seven years, it is argued, the right of hizanat (custody) is of the mother and this is not in conflict with the father being the natural or the legal guardian. The child could not be snatched from the Respondent and she could not be deprived of the custody except under one of the recognized grounds for the same. 5. The law is settled that the first and primary guardian is the father- Ameer Ali: Mohammedan Law Volume II (3rd edition) p. 587. In Imambandi v. Haji Musaddi AIR 1918 PC 15 it was stated that " the father alone, or, if he be dead, his executor (under the Sunni law) is the legal guardian" and that " the mother is entitled only to the custody of the person of her minor child upto a certain age according to the sex of the child. But she is not the natural guardian". Father does not stand in need to being appointed or declared as guardian by the Court. The court is not authorised to appoint or declare a guardian of the person of the minor whose father is living and is not, in the opinion of the Court, unfit to be the guardian of the person (Section 19(b) of Guardians and Wards Act). 6. The Hanafi law governing the parties recognizes at the same time the right of Hizanat or custody in relation to an infant child, and significantly there is well established co-relationship between guardianship, on the one hand, and hizanat, on the other. In the case of a male child till he attains the age of seven years the custody inheres in the mother in preference to the father. In the case of a male child till he attains the age of seven years the custody inheres in the mother in preference to the father. The 'Hidya' Hamilton (Volume I) page 385 records: If a separation takes place between a husband and wife, who are possessed of an infant child, the right of nursing and keeping it rests with the mother because it is recorded that the women once applied to the prophet, saying " O prophet of God : this is my son, the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own "care" " to which the prophet replied "thou hast a right in the child prior to that of thy husband, so long as thou dost not marry with " a stranger " Moreover, a mother is naturally not only more tender, but also better qualified to cherish a child during infancy, so that committing the care to her is of advantage to the child...". "The mother is of all persons " says the Fatwai Alamgiri, Volume I page 728 best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution. 7. In his treaties at page 288, Ameer Ali observes that the right of the mother to the custody of her child is established even though she be separated from her husband. This right belongs to her qua mother and nothing can take it away from her except her own misconduct. The principle underlying is explained thus by the learned author: The paternal power...is exercised over the person and property of infant children, presumably for their benefit. And when the tenderness of their age, or the weakness of their sex renders a mother's care necessary the Mohammedan law, supports the mother's natural right to the custody of her children and allows it to take precedence of the paternal right for a certain specified time. When the children are no longer dependent on the mother's care, the father has a right to educate and take charge of them, and is entitled to the guardianship of their person in preference to the mother. 8. The Hidaya, Volume I at page 388 refers this too. When the children are no longer dependent on the mother's care, the father has a right to educate and take charge of them, and is entitled to the guardianship of their person in preference to the mother. 8. The Hidaya, Volume I at page 388 refers this too. In Mulla: Mahommedan law (17th Edition) at page 333 the learned author clarifies that " right of custody of the mother is subject to the supervision of the father which he is entitled to exercise by virtue of his guardianship". Tyabiji elucidates this in Muslim Law, 4th Edition (page 216) observing: The father's supervision over the child continues inspite of the child being under the care of the famale relation as the burden of providing maintenance rests exclusively on the father. The mother's right to custody is not lost merely by her being divorced. 9. According to Dr. Tahir Mahmood-The Muslim Law (1980) page 170 a divorced or widowed mother, while she remains unmarried, does not lose her privilege. Mother's right of hizanat, says Dr. Paras Diwan in Muslim Law of India (1982) page 119, is in fact, a right of rearing of the children. The term hazina is applied to the woman to whom belongs the right of rearing a child. 10. Section 4(2) of the Guardians and Wards Act (hreinafter the Act) defines the expression 'guardian' as meaning " a person having the care of the person of a minor or his property, or of both his person and property". This is obviously wide in scope. It does not confine the expression to signify a guardian under the personal law governing the parties. The Act 'consolidates and amends' the law relating to guardians and wards, Section 17 provides that, in appointing or declaring the guardian of a minor, the Court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. 11. In Mt. Ulfat Bibi Vs. The Act 'consolidates and amends' the law relating to guardians and wards, Section 17 provides that, in appointing or declaring the guardian of a minor, the Court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. 11. In Mt. Ulfat Bibi Vs. Bafati, AIR 1927 All 581 while accepting that father is the natural lawful guardian until by some order of a competent court he is deprived of his rights as such, it was held that: Side by side with the right of the father as the lawful guardian exists the recognised right of the mother by Mahommedan law to have the custody of child upto the age of seven (emphasis supplied). 12. In Mt. Siddicunnisa Bibi v. Nizamuddin Khan (supra) it was laid down referring to Section 4(2) that 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. Sen, J. observes in the concerning judgment of the Division Bench that Hizanat is not the same thing as guardianship of the person. The definition of 'guardian' is wide enough to include a Mahommedan father who has 'the right of supervision' over his minor child for the end of her welfare. 13. In Mst. Haidri Begum v. Jawwad Ali Shah AIR 1934 All 722 (DB) the Division Bench held that even though divorced, a Mahommedan wife is entitled to the custody of a child of five years in preference to the husband unless there is special circumstances such as defect in her character or the like. In their Lordship's view this is in accordance with the personal law of the parties and also in conformity with common sense and natural principles. It was further observed that application by the mother would lie against the father for this purpose under the Act. This was followed by another Division Bench in Mt. Sakina Begam Vs. Malka Ara Begum, AIR 1948 All 198 . 14. The question raised in Mt. Ghuran v. Sayed Raiz Ahmad AIR 1935 Oudh 492 (Full Bench) was whether the father couldlapply u/s 25 of the Act as against the maternal grand-mother of the child (The mother was dead). This was followed by another Division Bench in Mt. Sakina Begam Vs. Malka Ara Begum, AIR 1948 All 198 . 14. The question raised in Mt. Ghuran v. Sayed Raiz Ahmad AIR 1935 Oudh 492 (Full Bench) was whether the father couldlapply u/s 25 of the Act as against the maternal grand-mother of the child (The mother was dead). It was held that father would be the guardian despite the custody of the child being with the female relative consequent upon the mother's death. Srivastava, J. observed: In my opinion Hizanat is only custody for the rearing up of the child. Although the maternal grand mother has the right of Hizanat under the Mahommedan law yet the father is responsible for providing funds for the maintenance of the minor and is her natural guardian.... Upon considering the authoritative texts and the case law on the subject the position emerging in substance is- (1) the father is the natural and legal guardian of the infant child but the right to the custody of the child is of the mother till he attains the age of seven years. (2) being entitled to custody of the child the Respondent is guardian within the meaning of Section 25 as defined in Section 4(2) of the Act and entitled as such to apply for the prupose, 'custody' over the child, in our opinion, necessarily imports the element of 'care' referred to in Section 4(2). The custody entrusted to the mother is with the object namely that the child be reared properly by the person to whom he would naturally be most attached in the early years of his life. (3) there is no conflict between guardianship of the father and the Hizanat of the mother. The two can co-exist side by side under the law. The mother exercises her right to rear up the child under the supervision and guidance of the father. (4) the hizanat of the mother is not lost by the mere fact that she has been divorced by the husband. The Hidaya and the Fatwa Alamgiri are recognised as standard authorities in this country on the Hanafi branch of the Sunni law (Imambandi v. Haji Mutsaddi AIR 1918 PC 8 ). (4) the hizanat of the mother is not lost by the mere fact that she has been divorced by the husband. The Hidaya and the Fatwa Alamgiri are recognised as standard authorities in this country on the Hanafi branch of the Sunni law (Imambandi v. Haji Mutsaddi AIR 1918 PC 8 ). Ameer Ali points also that- The mother can on no account give up her right of hizanat; for even if she were to obtain a khula in lieu of her abandoning her right to her child's custody, the khula will be valid, and she will retain the right of hizanat (Vol. II page 304). The Appellant in this case does not plead any of the recognised grounds for the loss of the mother's custody. (5) the right of hizanat is a personal right which the party entitled can enforce by a judicial proceeding under the Act (Ameer Ali, Volume II page 303). In Mrs. Annie Besanfs case AIR 1914 PC 41 (supra) further a suit inter partes is not the form of procedure prescribed by the Act for proceedings in a District court touching the guardianship of infants. 15. The case reported in Zonab Bi alias Bibijan v. Mohd. Ghouse Mohideen AIR 1952 Mad 284 arose from an application u/s 25 of the Act for custody of infant children as in the instant case. The question for consideration was whether, even though the mother is not the legal guardian under the Mahommedan law, she is, for purposes of the Act, a guardian who is entitled to the custody of her minor children in view of the definition of Guardian u/s 4(2). This was answered in the affirmative holding- In my opinion, it is not necessary for a person, as in this case of a Muslim mother, to show that she is legal or natural guardian in order to entitle herself to the relief given u/s 25. It is sufficient if she is a person having the care of the person of the minors. It is, therefore, for consideration whether a Mahommedan 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. It is, therefore, for consideration whether a Mahommedan 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 Mahommedan law, is entitled to the care of the person of her minor daughter until she attains puberty and of her minor son until he attains the age of seven years. In this view, a Mahommedan mother comes within the definition of a guardian under the Guardians and Wards Act. If she comes within the scope of the defintion of guardian under the Guardians and Wards Act, the petition u/s 25 of the Act is maintainable. 16. In Hasmat Ali Vs. Smt. Suraya Begum, AIR 1971 All 260 which is the sheet anchor of the Appellant before us the proceeding commenced on an application u/s 25 by the divorced wife against the husband for return of the custody of her male child aged about four years. The learned Single Judge accepted the proposition that the mother was entitled to the Hizanat or the custody of the child. Hizanat, it was then pointed. Is not the same thing as guardianship. Inspite of the right of Hizanat of a female relation, the guardianship of the father continues. On this basis the learned Judge concludes that the mother is not a guardian within the meaning of Section 4(2) and hence application does not lie u/s 25. It was also observed that if the mother had applied u/s 7/10 " she would have been entitled to preference but, in the absence thereof, she could exercise the right to obtain back the custody of the minor child by filing a suit and not by proceeding u/s 25. With respect, we are unable to agree. 17. In our view, there is no dichotomy between the expression care used in Section 4(2) and custody. With respect, we are unable to agree. 17. In our view, there is no dichotomy between the expression care used in Section 4(2) and custody. It is difficult to subscribe to the reasoning of the learned Single Judge that " custody is only the physical keeping while care amounts to looking after." The basic postulate underlying the theory of the mother's custody or hizanat cannot be overlooked. As we stated above, the custody recognized under the law is with a defined object. The object in nut shell is to rear the child for which the mother is best suited and is preferred in comparison to the father. Therefore, it is impracticable to exercise the 'custody' without being required at the same time that the child be taken care of, care is to our mind, implicit in the concept of 'custody. " Chief Justice Sulaiman used these expression synonymously in his opinion recorded in Mt. Siddiqunnisa Bibi Vs. Nizamuddin Khan and Others, AIR 1932 All 215 . Section 4(2) as we pointed out, does not refer to legal guardians, but to certain facts which confer the status of guardian upon such person. For purposes of this Act including Section 25 a 'guardian' is a person who has the care of a minor. This presupposes and is irrespective of the question whether that person is or is not a legal guardian. It may be that he would be a legal guardian also in which case the two concepts may conincide. But Section 25 may not be said to require that the applicant must be the legal guardian also or that it is not enough that she can have the care of the minor. The relief sought being return of the child's custody, the Respondent had to proceed, as she did, u/s 25, and not u/s 7/10 of the Act. The view taken by the learned Single Judge in Hasmat Alps case has been dissented by the Bombay High Court in Mohammad Shafi Vs. Shamin Banoo, AIR 1979 Bom 156 . 18. In Smt. Razia v. Siraj Ahmad, First Appeal From Order 166 of 1965 decided by D.S. Mathur, J. on 19-10-1965 cited for the Respondent the competency of an application at the instance of mother u/s 25 of the Act does not appear to have been directly raised in issue. Shamin Banoo, AIR 1979 Bom 156 . 18. In Smt. Razia v. Siraj Ahmad, First Appeal From Order 166 of 1965 decided by D.S. Mathur, J. on 19-10-1965 cited for the Respondent the competency of an application at the instance of mother u/s 25 of the Act does not appear to have been directly raised in issue. The decision therein turned chiefly on the point whether the wife could file the application despite her divorce in khula form and this was answered in the affirmative. This consequently may not be regarded as of much assistance to the Respondent. 19. The dominant consideration in these matters is the welfare of the child. In this case the child is of the age of nearly four years. The Respondent has not remarried. Since the divorce took place she lives with her parents and is supported by them. The Appellant's learned Counsel has not contended before us that the custody of the mother would in any manner, be detrimental to the child's welfare. 20. In view of the discussion made above, we are of the opinion that the application filed by the mother u/s 25 of the Guardians and Wards Act was rightly allowed. The decision in Hasmat Ali v. Smt. Suraya Begum AIR 1971 Allahabad 260 relied for the Appellant does not lay down good law. 21. The appeal fails and is dismissed. Costs on parties.