' This judgment will dispose of F.A.O. 84 of 1978 and F.A.O. 50 of 1979. F.A.O. 84 is by Mst. Salima Eibi who was respondent before the Guardian Judge in an application filed by Sharif Hussain respondent under section 25 of the Guardians and Wards Act for custody of her minor daughter Mst. Shamim Akhtar who was born in the year 1965. F.A.O. 50 has been filed by the maternal grandmother of the minor Mst. Shamim Akhtar who was not impleaded as a party in the said petition although she was a necessary party.
2. The facts are that Mst. Salima Bibi and Sharif Hussain lived together for a very short time after the marriage. Thereafter Mst. Salima Bibi alleged that she had been divorced but the divorce was really effected through the Court in the year 1976. After the alleged divorce Mst. Salima Bibi appellant contracted a second marriage with Allah Rakha and she has as many as five children from that marriage. The respondent filed the application under section 25 for the custody of the minor daughter on the ground of disqualification of the appellant since she had remarried. This application was contested but it was allowed by the learned Guardian Judge on the 4th March, 1978, on the ground that welfare and the interest of the minor would be served by her custody being given to the father respondent. It was alleged before the learned Guardian Judge that the minor was living with her maternal grandfather who was also ,a necessary party. This gave rise to issue No, 2 which is as follows :- "2. Whether the minor is in joint custody of respondent and her maternal grandfather and as such the maternal grandfather is necessary party to this case ?"
This issue was decided against Mst. Salima Bibi appellant on the ground that since she and her father were living jointly in the same house the custody should be deemed to be with the mother and not with the maternal grandfather. Consequently he was not a necessary party to the case.
3. Now according to law (vide para 353 of Principles of Mahomedan Law by D. F. Mulla Sixteenth Edition) the custody of a minor girl who has not attained puberty, belongs in default of the mother to inter alia mother's mother, how high sever.
4. The learned Guardian Judge did not consider this right of the maternal grandmother Mst. Shani appellant in F. A. O. 50/79. The appeal of Mst. Salima Bibi is liable to be dismissed since I am convinced that a person who had remarried another man during the life time of her husband and without seeking legal divorce is not a fit person to hold the custody of the minor. But in the present case Mst. Shani's right should also have been considered. Once it was brought to the notice of the learned Guardian Judge that the minor was living in the house of her maternal grandfather the learned Judge should have made a probes whether the maternal grandmother was alive or not and should have directed her to be impleaded as a respondent. Since her right has not been considered, it is a fit case for remand. I, therefore, dismiss the appeal of Mst. Salima Bibi to the extent of her right to hold the custody of the minor, allow the appeal of Mst. Shani (F. A. O. 50/79), set aside thel order of the learned Guardian Judge and direct him to decide the case afresh after impleading Mst. Shani as a respondent and after considering her right. The parties shall bear their own costs.
5. The respondent shall be allowed to file an amended petition to challenge the right of Mst. Shani and to allege whether she is disqualified. The learned trial Court shall decide this case preferably in the year 1979.