ABDUL MOHIT Vs. MT. ZEBUNNESSA KHATUN

JUDGEMENT

(1.) THIS Rule was obtained by Kazi Abdul Mohit who is paternal uncle of certain minors and it is directed against an order made by the Additional District Judge, 24 -Parganas, refusing his application to remove the opposite party 1, who is the mother of the said minors, from guardianship under Section 17, Guardians and Wards Act. The Rule was also issued against the opposite party 2, who is the maternal grand, father of the minors, but it is not pressed.

(2.) A Muslim gentleman named Khan Bahadur Kazi Abdul Rashid died leaving certain minor children and upon his death two applications were filed for the guardianship of the persons and properties of the minor children. One application was made by the present petitioner who is the paternal uncle of the minors and the other application was filed by the opposite party l who is the mother of the minor children. By an order dated 9 -10 -1947 the Additional District Judge, who heard the two cases appointed the mother, opposite party l, as the guardian of the persons and properties of the minors. The petitioner in this Rule filed an application before the lower Court praying for the removal of opposite party 1 from the guardianship on the ground that after her appointment as guardian of the persons and properties of the minors the opposite party 1 had married a stranger who is not within prohibited degrees and has thus disqualified herself from continuing as the guardian of the minors. The learned Additional District Judge, who heard the application, dismissed it on the ground that the mere fact that opposite party 1 had married a stranger did not disqualify her from continuing to act as the guardian of the minors. Against this order made by the learned Additional District Judge the petitioner has obtained the present Rule.

(3.) MR . Sen has argued in the second place that the guardian has removed the minors from the jurisdiction of the Court and thereby she is liable to be removed. Reliance has been placed upon Section 39, Clause (h), Guardians and Wards Act, which authorises a Court to remove a guardian for ceasing to reside within the local limits of the jurisdiction of the Court. It has been found in the present case that the minors have been sent to Dacca and there they are prosecuting their studies but it has also been found that at the time of her appointment the guardian was permitted by the Court to take the minors to Dacca. Section 39, gives the Court a discretion with regard to the question of removing the guardian for ceasing to reside within the jurisdiction of the Court. As in the present case the guardian was expressly authorised by an order of the Court to select Dacca as one of the places for the education of the minors, we do not think that the guardian should be removed on this ground.