YAKUB SHEIKH Vs. NAFUJAN BIBI

JUDGEMENT

(1.) This appeal is directed against an order made by the Court below under the Guardians and Wards Act of 1890. The appellant Yakub Sheikh made an application to the District Judge on the 30 July 1908, for appointment of himself as guardian of the person and property of his infant niece Sakina Bibee. Notices were directed to be served as usual and on the 2nd September 1908, the applicant was appointed guardian; and was directed to furnish security. On the 12 September, however, Nafujan Bibi, the mother of the infant applied to the Court and objected to the proceedings apparently on the ground that no notice had been served upon her. This petition of objection was directed to be heard on the 22nd September. Yakub did not appear on that day nor did he furnish the required security, and as the Judge felt doubtful whether any notice had been really served upon the mother with whom the infant resided, the appointment of Yakub as guardian was cancelled. On the 13 November, Yakub made a fresh application to be appointed guardian, which was opposed by the mother. On the 16 December, when the case came to be heard, Yakub contended that the mother was not qualified to be guardian as upon the death of her husband (the father of the infant) she had been married to a stranger as her second husband. The District Judge overruled this contention, and dismissed the application on the ground "that it would be a perfectly monstrous interpretation of the Mahomedan Law to hold that marriage with a stranger deprived a mother of her children, though she had married a perfectly respectable gentleman." We are invited in this appeal to consider the legality of this order. It is clear that the authorities on the subject were not brought to the notice of the learned District Judge, nor was his attention invited to the distinction between the appointment of a guardian in respect of the property and another in respect of the person of an infant under the Mahomedan Law.

(2.) We shall consider in the first place the application in so far as it is for the appointment of the petitioner as the guardian of the person of his infant niece. Under the Mahomedan Law it is well settled that the mother, if alive, and not disqualified or any of certain specified grounds, is entitled to the custody of her daughter under the age of puberty, at all events as against any one but her husband. One of the circumstances, however, which disqualifies a mother and disentitles her to claim the custody of her infant daughter is the fact of her re-marriage to a man not related to the minor within the prohibited degrees; and this disqualification continues so long as the marriage subsists. This view has been for many years accepted in this Court as well-founded on the original authorities of the Mahomedan Law, and in support of this position, it is sufficient for our present purpose to refer to the cases of Alimodeen Moallam v. Syfoora Bibee 6 W.R. Mis. 125; Beedhun Bibee V/s. Fuzuloollah 20 W.R. 411; Fuzeehun V/s. Kajo 10 C. 15 and Bhoocha V/s. Elahi Bux 11 C. 574. The rule is stated in similar terms by all the leading text-writers amongst whom reference may be made to the Works of Sir Rowland Wilson ( Secs.107 and 108), Mr. Amir Ali (Volume II, 295) and Nawab Abdur Rahman (Articles 380 and 382) where the original sources will be found mentioned. In so far, therefore, as the application relates to the appointment of a guardian of the person of the infant, it is clear that the mother, in this case, who has married a stranger after the death of her first husband is not entitled to be appointed, much less to claim preference over the appellant who is a paternal uncle of the minor. It has been stated to us, however, that the infant has a sister who is of age and is able to tike charge of her. She is clearly entitled to preference over the paternal uncle. Before, therefore, the paternal uncle can be appointed, it must be ascertained whether the full sister is or is not willing to take the custody of the child. It has further been stated to us that the notice of the application by the uncle was served upon the sister, but we are not satisfied that she is really aware of the present proceedings. Under such circumstances before she is passed over, it would be desirable to serve a fresh notice upon her.

(3.) We have to consider in the second place, the application in so far as it relates to the appointment of a guardian of the property of the infant. Here the position is entirely different. Under the Mahomedan Law the guardians of a minor's property are necessarily the father, any testamentary guardian appointed by him, his executor, the executor of such executor, the paternal grandfather, his executor, and the executor of such executor. If in any case, there is no person so qualified, it is open to the Court to appoint a suitable person as guardian. It is clear, therefore, as is stated in the cases of Nizam-ud-din Shah V/s. Anandi Prasad 18 A. 373 and Alim-ullah Khan V/s. Abadi Begum 29 A. 10 : A.W.N. (1906) 256 that the uncle is not entitled as a matter of right to be appointed guardian of, the property of the infant, nor, on the other hand, as pointed out in the cases of Sitaram V/s. Amir Begum 8 A. 324 and Baba v. Shivappa 20 B. 199 is the mother entitled to put forward such claim. The Court may, therefore, appoint a suitable person as guardian of the property, and before a selection is made, the Court must have regard to the fitness of the persons available, and also consider what under the circumstances of the case would be to the best interest of the infant concerned. In this connection, we may add that under Section 17 of the Guardians and Wards Act, although the Court is bound to have regard to the provisions of the law to which the minor is subject, the Court must ultimately decide in view of what is likely to promote the best interest of the minor. In other words, if two persons willing to act as guardian, are equally qualified, preference may be given to one on the ground that according to the law to which the infant is subject such person is entitled to claim preference. But this does not mean that a person who is otherwise unsuitable must be appointed guardian because under the Mahomedan Law he is entitled to preference. Similarly, if a person is disqualified for the office of guardian by the law to which the minor is subject, he cannot be appointed guardian: the welfare of the minor is, no doubt, the main consideration, but his welfare must be considered from the standpoint of his race and religion. This view was taken by this Court in the case of Mohomuddy Begum V/s. Musammat Oomdutoonissa 13 W.R. 454. In the case before us, there has been no proper enquiry into the matter, and there are no materials upon which we can pass final orders.