MOHD AMIN SHAH Vs. ATEEKA BANU

JUDGEMENT

(1.) THIS is an appeal against an order made by the Additional District Judge Srinagar appointing Mst. Ateeka Banu respondent No. 1 as guardian of the person and property of the two minor girls Masooda Banoo and Irshad Banoo.

(2.) IT appears that before the court below the appellant Mohamad Amin shah made an application for the appointment of the guardian of person and property of the minor daughters of Qadir Shah deceased. The application was resisted by respondent No. 1 the mother of the minors, and Abdul Rashid and others the cousin of the minors. Both the parties adduced evidence in respect of their respective cases and the court after consideration of the evidence appointed Mst. Ateeka Banu as the guardian of the minors. Learned counsel for the appellant has contended that the court in appointing the respondent No. 1 as guardian of the minors has not kept in view the welfare of the minors as also their wishes in the matter. One Peer Banu, the fathers sister of the minors was also made a party in the court below but she did not appear at all. She has appeared in this court through Mr. S. N. Dhar and has expressed her willingness to be appointed as guardian of the person and property of the minors, if the court so directs. The entire evidence has been placed before us by counsel for both the parties.

(3.) BEFORE us, however, the main competition for the guardianship of the minor daughters has been between respondent No. 1 and the appellant. Learned counsel for the appellant submitted that respondent No. 1, the mother of the minors, has Disqualified herself from being the guardian of the minor daughters firstly because she has remarried after the death of her husband and secondly because the girls have crossed the age of "Hazinat", the age under which they could be under the "Hazinat" of their mother under the Mohammadan Law but are now nearing of age of puberty. It is further contended that not only respondent No. 1 has remarried but has married a complete stranger who does not belong to the particular sect to which the parties belong, that is to say, that the second husband of respondent No. 1 is a Pathan and not a Peer Zada to which caste the appellant and the minor daughters belong. It is also contended by learned counsel for the appellant that the second husband has got three sons, two of whom are grown up and are living with their stepmother and it will not be safe to allow the girls who have just stepped into their teens to live with these boys. There is also a possibility, it is suggested, of the second husband attempting to secure the marriage of these daughters with his sons which is permissible under the Mohammadan Law. Incur opinion, the contention of the learned counsel for the appellant seems to be well founded. There is, no doubt, that the minors cannot be looked after properly in all respects if they are allowed to live with their mother in the same house where the stepfather is also living with his two grown up sons. Even under Mohammadan Law respondent No. 1 has forfeited her right to be appointed as guardian of the minors by virtue of her remarriage and having regard again to the fact that she had remarried not only outside the family but outside the particular sect, to which the members of the family of the minors belong, is an additional reason why Mst. Ateeka Banu is not a fit person to be appointed as guardian of the minors.