KALIMUNNISA Vs. SHAH SALIMKHAN REHMANKHAN

JUDGEMENT

(1.) THIS is an appeal under section 47 of the Guardian and Wards Act (hereinafter referred to as 'the Act' ).

(2.) THE parties are Mahomedans and areas such governed by Mahomedan law. The appellant Kalimunnisa, aged about 22 years was married to the respondent Shah Salim Khan aged about 30 years. On 10-10-1964 a son named Shahjahan was born to them. Some time in the year 1969 or so the appellant was divorced by her husband. Since then Shahjahan has been living with his mother. It appears that the appellant had instituted proceedings against the respondent for maintenance of the minor Shahjahan and a sum of Rs. 10 per month was fixed by the Court for the maintenance of the minor. After shahjahan completed the age of 7 years, the respondent filed an application under section 10 of the Act praying that he be appointed as guardian of the minor and the minor be placed in his custody. This application was, opposed by the appellant. The application was, however, allowed by the trial Court and the appellant was directed to transfer the custody of the minor to the respondent within a period of 15 days. Being aggrieved by the said order the appellant has preferred this appeal.

(3.) SHRI K. . VI. Agrawal, learned counsel for the appellant raised a preliminary objection that since the respondent being the father of the minor is his natural guardian under the personal law, it was not necessary for him to file an application under section 7 for appointing and declaring him as his guardian and, therefore, the entire proceedings are misconceived. There is no doubt some force in this contention. It was not necessary for the respondent to file an application for declaring or appointing him as guardian. The proper course for him was to file an application under section 25 of the Act for obtaining custody of the minor. From the language of this section it no doubt appears that it is attracted only where a ward leaves or is removed from the custody of a guardian but the repudiation by a person in charge of a minor of the right of the guardian to resume the custody of the minor amounts to removal within the meaning of this section. In Brijendra Narayan Ganguly v. Chinta Haran sarker, 1961 MPLJ 208. it was held that the act of the non-applicants in repudiating the right of the applicants to resume custody of the child amounted to 'removal' within the meaning of section 25 of the Act. Thus, the application filed by the respondent in the lower Court may be treated as an application under section 25 of the Act and dealt with accordingly.