RAFIQ Vs. BASHIRAN

JUDGEMENT

(1.) THIS is an appeal by one Rafiq, a Muslim father, against an order of the Civil judge Bundi passed under Section 25 of the Guardians and Wards Act, directing him to deliver the custody of his 31/2 year old daughter to his wife's mother's father's sister Smt. Bashiran.

(2.) RAFIQ divorced the minor's mother Smt. Gulshan on 12-1-59. After the divorce the minor remained in the custody of her mother who was living with her father bahairddin. Smt. Gulshan however remarried on 29-7-60 and went to live with her husband leaving her minor daughter with her father Bahauddin. According to the finding of the learned Senior Civil Judge Rafiq took away his minor daughter from the house of Bahauddin without his consent. The present application under Section 25 of the Guardianship Act was then filed on 1-8-60 by Bahauddin's sister Smt, bashiran. This application was granted by the learned Senior Civil Judge on the ground that under the Mahomedan Law Smt. Bashiran had a preferential right to the custody of the minor, being the maternal aunt of her mother. According to Tyabji's Mahomedan Law, Third Edition, Section 236 (at page 275)the following persons have a preferential right over,the father to the custody of (sic)minor girl before she attains the age of puberty:

(3.) IN Mt. Siddiq-Un-Nissa Bibi v. Nizam-Uddin Khan, ILR 54 All 128 : (AIR 1932 All 215), Sulaiman Acting C. J. observed at page 134 [of ILR All) : (at p. 217 of air) :-