1. This appeal arises out of an application under section 17 of the Guardians and Wards Act.
2. Ramela Khatun, the respondent No, 1, the mother of minor Kasem Ali, filed the application in the Court of the District Judge, for her appointment as the guardian of his person and properties. It was alleged that Rahela Khatun, paternal aunt (fufu) and Amjad Ali Mondal, a distant paternal uncle of the minor, were in possession of the properties left behind by deceased Ator Ali, father of the minor.
3. Rahela and Amjad were enjoying the usufructs of the properties of the minor and were trying to grab the same.
4. The application was opposed by Rahela Khatun, the appellant before me, as well as Amjad Ali, on the ground inter alia that the applicant, mother Ramela, had since married one Fakir Mohammad Biswa s who was not within the prohibited degrees of the minor, and consequently she could not be appointed the guardian of the minor. The learned District Judge observed that there are conflicting decisions on the point. The learned District Judge, however, allowed the application and appointed the mother as the guardian of the person and properties of minor Kasem Ali. Hence this appeal by Rahela.
5. Before me two grounds have been canvassed in support of the appeal which are grounds Nos, 5 and 7 in the Memorandum of Appeal. The grounds read as under : "5. For that the trial Court acted contrary to the principles of Muslim Law in appointing the nikah married mother as the guardian of the minor.
7. For that the trial Court failed to appreciate the evidence adduced by O. P. witness and wrongly appointed the nika married mother as the guardian."
6. It has been argued before me on behalf of the appellant that once the mother is re-married to a person, not within the prohibited degrees of the minor, the mother becomes disqualified to be appointed the guardian. The question is whether the Muslim Law forbids, under all circumstances, the appointment of the mother or any female as the guardian of a minor, if she marries a person not related to the minor within the prohibited degrees.
7. Now the mother under the Muslim Law is, of all persons, the best entitled to the custody of the minor child. She is entitled to the custody of her male child until he completes the age of seven years and of her female child until she attains puberty. Failing the mother, the custody of the child belongs to the female relatives in the following order :- (1)mother's mother, how high soever (2)father's mother, how high soever ; (3)full sister ; (4)uterine sister ; (5)consanguine sister ; (6)full sister's daughter ; (7)uterine sister's daughter ; (8)consanguine sister's daughter ; (9)maternal aunt, in like order as sisters and
(10) paternal aunt, also in like order as sisters.
8. A female including the mother loses the right of custody-- (1)if she marries a person not related to the child within the prohibited degrees ; (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. In default of the mother and other female relations the custody belongs to the following male relatives in the order shown below :
(1) the father ; (2)nearest paternal grand father ; (3)full brother ; (4)consanguine brother ; (5)full brother's son ; (6)consanguine brother's son ; (7)full brother of the father ; (8)consanguine brother of the father; (9)son of father's full brother ;
(10) son of father's consanguine brother ; In default of the mother and other female relations and failing also the male relations, it becomes the concern of the Court to appoint a guardian of the person of a minor.
10. The right of any person, whether a female including the mother or a male, to the custody of a minor is a preferential right. The Muslim Personal Law does not seem to indicate that a female by losing the aforesaid preferential right due to marriage with a stranger becomes absolutely disqualified to be appointed the guardian of a minor. The alteration that is brought about in the situation by the marriage of a female, entitled to the custody of the minor, with a stranger is that the right of the female below takes precedence over that of the former and failing the one below and all others following her, the custody appertains to the male relations shown hereinbefore. If none of the male relations is available or not found fit for the custody, the texts of the Muslim Personal Law does not seem to warrant, according to my reading, any conclusion that the particular female whose preferential right has been lost because of her marriage with a stranger, cannot be appointed the guardian if she yet be the most suitable of all persons for appointment, the dominant consideration always being the welfare of the minor.
11. The identical question whether the Muslim Law has absolutely prohibited the mother to be appointed the guardian of a minor who has married a person not related to the minor within the prohibited degrees, fell for decision in Omar Elahee v. Mst. Rashid Akhtar , Akhlaque Hossain, J., in that case after having referred several authorities on the point, observed that it was true that in some reported cases such a view that is to say a view in the affirmative, had been taken. But the learned Judge clearly expressed himself "that there is no warrant for it in the original texts of Muslim Law. He placed reliance on the interpretation of Muslim Law on the point by Malik, J. of the High Court of Allahabad in the case of Mst. Samiunnessa v. Mst. Sayeeda Khatun . In the case decided by Akhlaque Hossain, J. the mother was re-married to a stranger after separation from the father of the minor. The father wanted the guardianship of the minor daughter. The trial Court refused to grant the prayer of the father. Akhlaque Hossain, J. confirmed the decision of the trial Court.
12. It is profitable for me to refer to the case of Tumina Khatun and another v. Goharjan Bibi , decided by the High Court of Calcutta, In the above case it was held that Muhammadan Law has not forbidden the appointment of a woman who has married a stranger to be guardian of the minor; all that it has laid down is that a woman, who has a preferential right to the custody of an Infant, loses such a right on her marriage to a stranger.
13. It is of interest to refer to the case of Johura Begum v. Maimuna Khatun . decided by Hasan, J. of this Court. The learned Judge observed: "Under the Mohammadan Law, having regard to the minor's welfare and interest will be protected, a table has been given according to which preference to go first to the mother if she is not otherwise disqualified. That does not necessarily mean that the duty imposed upon the Court to protect the minor's interest has been overridden by such provision. The Court, having regard to the provision of Mohammadan Law and also the welfare of the minor, should appoint a guardian and not blindly merely because a mother has lost her preferential right after having taken a second husband not related to the minor within the prohibited degrees."
14. In that case father's mother was appointed guardian of the person and property of the minor by the trial Judge. The mother was remarried to a stranger. Hasan, J. modified the decision of the trial Judge that the mother be appointed the guardian of the person of the minor.
15. Section 17 of the Guardians and Wards Act provides that in appointing or declaring 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. In considering what will be for the welfare of the minor the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor. Since the marriage of a female with a stranger does not annul her right absolutely to the custody of the minor, appointment of a female who marries a stranger, as the guardian of the minor under the provisions of the Guardians and Wards Act, would be quite consistent with the personal law of the Muslim minor, provided the female in question is found to be the best of all persons to whose charge care of the minor may be given.
16. The law being what it is I have to see now whether the mother in the instant case can be appointed guardian of the minor in preference to Rahela, the paternal aunt.
17. It has been established by evidence that the properties of the minor were enjoyed by the appellent Rahela and Amjad Ali. The learned District Judge refused to accept the contention of the appellant Rahela as well as Amjad Ali, that the minor had been in their custody. It has also been established by evidence that Fakir Muhammad, the second husband of the mother, is a person of affluent circumstanced who has no other wife nor any issue by any other wife. On the evidence called in the1 2 3 4 case by the parties which he fully discussed, the learned District Judge was of the view that the mother was a fit and proper person to be appointed the guardian of the minor. On my own appreciation of the evidence, through which I have been taken, I have no reason to disagree with the learned District Judge. The learned Advocate for the appellant submits that in view of the authorities as to the question of mother's right to the custody of the minor, he would not press the appeal against the appointment of the mother as the guardian of the person of the minor. He, however, argues that in the circumstances of the case, the appellant alone is entitled to be appointed the guardian of the properties of the minor. In support of this contention he seeks to rely on the case of Johura Begum referred to hereinbefore. In that case, as already noticed, in modification of the order of the trial Judge, the mother was appointed the guardian of the person of the minor by this Court, and the order of the trial Judge appointing the father's mother as the guardian of the property was upheld. Facts of the present case are considerably different. In the case of Johura Begum, there does not seem to have been any allegation that the property of the minor was in any way mismanaged by the father's mother. In the present case, however, there is evidence that the usufructs of the properties of the minor were being enjoyed by the aunt, the appellant as well as Amjad Ali.
18. In the circumstances I do not find any justification to interfere with the decision of the learned District Judge appointing the mother, as the guardian of the person and properties of the minor for which she is required to furnish security. This appeal is accordingly dismissed. I, however, direct that the parties would bear their respective costs. PLD 1955 Lah. 412 AIR 1944 All. 202 45 C W N 515 16 D L R 695