HAFIZUR RAHMAN Vs. SMT. SHAKILA KHATOON

JUDGEMENT

(1.) THIS First Appeal arises from an order allowing the respondent's application under Section 25 of the Guardians and Wards Act, 1890, for the custody of her minor son, Abdullah. He was born in April, 1979, and is said to have been snatched from the respondent's lap in January 1980 by the appellant, his father. The respondent is said to have been turned out of his house and also divorced thereafter. The application was promptly moved on 30th January, 1980. It was allowed by an order dated March 16, 1980. While admitting the appeal under order 41 rule 11 of the Code of Civil Procedure, this Court suspended the operation of the order under appeal. After hearing parties on the appeal, I was convinced that the respondent is entitled to the custody, and the order under appeal does not call for any interference on the merits, but a preliminary objection to the District Court to pass the order of custody on an application under Section 25 of the Guardians and Wards Act was raised in this case. The objection was that, under the Muslim Law the father is the lawful guardian of his minor children and the mother has only a right of Hizanat, as it is called, which means merely custody, in the case of a boy till he attains the age of seven years and in case of a girl till she attains the age of puberty, and thus the mother, not being the guardian of the person of the minor, she could not apply for custody under Section 25 of the Guardians and Wards Act particularly when the opposite party is the child's own father and lawful guardian. This contention was supported by the ruling of a learned Judge of this Court. G.D. Sehgal, J. sitting singly, in Hashmat Ali v. Suraya Begum : A.I.R. 1971 All. 260, wherein it was ruled that Hizanat means mere custody for rearing up the child, and guardianship remains in the father, and that, although the mother may have been in the custody of her minor son, and the father may have taken him away, she can enforce her right of Hizanat of the minor only by a suit and not by a proceeding under Section 25 of the Guardians and Wards Act, 1890. With profound respect to the learned Judge and for the reasons to be stated presently, I was not happy with the conclusion arrived at by him, and, apart from several other cases cited before me where a Muslim mother's right of Hizanat was enforced on an application under Section 25 of the Guardians and Wards Act an unreported decision of another learned Judge of this Court D.S. Mathur, J. sitting singly in Razya v. Siraj Ahmad F.A.F.O. No. 166 of 1965, was cited, wherein it was held that under the Muslim Law, a mother entitled to the custody of a child by her right of Hizanat, is the guardian of the person of the child, and an application under Section 25 of the Guardians and Wards Act was allowed by the learned Judge reversing the District Court's order. In view of this apparent conflict and the fact that the decision of D.S. Mathur, J. was not brought to the notice of G.D. Sehgal, J. and since I am of the view that a Muslim mother could enforce her right of Hizanat by an application under Section 25 of the Guardians and Wards Act, 1890, it became necessary for me to refer this case to a larger bench for reconsideration of the ruling of G.D. Sehgal, J., in Hashmat Ali v. Suraya Begum (Supra). Further, as the reference was bound to delay the final disposal of this First Appeal From Order, and since I was convinced on the merits that the mother is entitled to the custody of the child, whose age is now about three -and -a -half years, by an order, dated the 18th October, 1982, I have vacated the interim order, and fixed a date for the production of the child by the appellant in the court of the District Judge Azamgarh, for delivery of his custody to the respondent.

(2.) I am now stating my reasons for my disagreement with the view of G.D. Sehgal, J.

(3.) IN Babu Ram Verma's Mohammadan Law, Paragraph 96, Chapter 8, guardianship is defined as of three kinds (1) for purposes of marriage; (2) for the person of the minor; and (3) for the property of the minor; and, while dealing with guardianship of person, it is equated with Hizanat even in the title of the third part of chapter 8 immediately above paragraph 102.