SUNDRI Vs. MOHD FAFOO

JUDGEMENT

(1.) THIS appeal under Section 47 of the Guardian and Wards Act is directed against an order dated February 28, 1970, of the District Judge, Srinagar rejecting the application preferred by the appellant for guardianship of the person and, property of her minor son, Bashir Ahmad, aged about five years on the ground that she had forfeited her right to the custody of the child as after the death of her first husband, Ghulam Mohamad Fafoo, she had contracted a remarriage with Lhalik Dagga respondant No. 3 here in, who is a stranger and not at all related to the minor.

(2.) IT appears that on the death of Ghulam Mohamad Fafoo two applications, one by the appellant who is the real mother of the minor and another by respondant No. 2 here in, who is the paternal aunt of the minor, were made before the learned District judge claiming guardianship of the person and property of the minor. The applications were contested by respondent No.1 herein who, is the paternal uncle of the minor on the ground that the application were motivated by a desire to grab the property of the minor. By his order dated April 16, 1969, the learned District Judge constituted both the applications and after recording and considering the evidence adduced by the parties he, as already stated, passed an order on February 28, 1970, holding that the appellant having married a person who was not at all related to the minor could not be entrusted with his custody and that respondent No. 1 was a fit person to be appointed as the guardian of the person and property of the minor. It is against this order that the present appeal has been preferred.

(3.) APPEARING for the appellant Mr. S P. Vohra has submitted that the remarriage by the appellant with a stranger did not constitute a bar to her appointment as a guardian of the person of her minor son and that it would not be in the interest of the minor, who is hardly five years of age to remove him from the custody of his mother.