MIR MOHAMED BAHAUDDIN Vs. MUJEE BUNNISA BEGUM SAHIBA

JUDGEMENT

(1.) The father of the minor applies for removal of the present guardian Mujeebunnissa Begum, who is the mother of the minor, from guardianship, and for appointment of himself as the guardian of the person of the minor. The present guardian, who is the Respondent, was married to the Petitioner and owing to certain differences there was a divorce of this marriage. She applied in O. P. No. 59 of 1947 for appointment of herself as the guardian of the person of the minor, who was then a child at about two years of 'age. The Petitioner consented to her being appointed and by an order of this Court dated 20-31947 made in the said O.P. No. 59 of 1947, the present Respondent was appointed as the guardian of the person of the minor. Subsequent to this, there were certain proceedings in the Presidency Magistrate's Court under Section 488 of the Criminal Procedure Code for orders as maintenance of the minor and a sum of Rs. 12/- was fixed as the monthly maintenance to be paid to the Petitioner. The said order is still in force.

(2.) It is now stated that the Respondent has married a second husband and by him she has now a female child and that under the Muslim Law, the mother is not the natural guardian, while the father is alive, and that by virtue of the second marriage, she has forfeited her right to be the guardian of the person of the minor and to have her custody. The present application is for removal of the Respondent from the guardianship on the ground that she has forfeited her right to be the guardian under the personal law applicable to the parties.

(3.) The custody, or what is called 'hizanat' of a minor girl until she attains puberty and of a minor boy until he attains the age of 7 years is with the mother. But even then the legal guardian is only the father. The right to the custody of the minor girl until-she attains puberty continues with the mother, though she is divorced by the father of the child. However, the mother cannot continue to have the custody of the child, if she marries a second husband, in which case the custody belongs to the father. This is the proposition that has been laid down in 'Ulfat Bibi v. Bafati', 49 All 773, Mulla in his book on Principles of Mahomedan Law's 13th Edition, page 295 states as follows: