MT SIDDIQUNNISA BIBI Vs. NIZAMUDDIN KHAN

JUDGEMENT

(1.) This is an appeal by the maternal grandmother of Mt. Wajida Khatun from an order of the District Judge of Ghazipur directing that she should make over the child who was about seven years old to the respondent, her father. The mother of the girl died a few days after her birth at Sasaram which is the residence of the father; the maternal grandmother is residing in another district at Zamania. The girl was undoubtedly allowed to be brought by the grandmother from Sasaram to Zamania and has for these years been maintained and brought up by the appellant. An application was made by the maternal grandmother that she should be appointed the guardian of her person Objections were filed by the father, the grandfather, as well as the paternal grandmother to the appointment of the maternal grandmother as her guardian and there was also a prayer that either of these persons be appointed a guardian of her person. The learned District Judge came to the conclusion that in view of the provisions of Section 19, Guardians-and Wards Act he had no power to appoint a guardian at all, but he granted a separate application of the father mad& under Section 25 of the Act for the return of the girl to him. The grandmother has accordingly appealed and challenges the propriety of the order passed.

(2.) The learned Counsel for the parties have placed before us a large number of rulings which show that there has to some extent been a conflict of opinion on the interpretation of some of the sections of the Act.

(3.) There can be no doubt that so far as the power to appoiut and declare the guardian of a minor under Section 17 of the-Act is concerned the personal law of the minor concerned is to be taken into consideration, but that law is not necessarily binding upon the Court, which must look to the welfare of the minor consistently with that law. This is so in cases; where Section 17 applies. In such cases the-personal law has to this extent been superseded that it is not absolutely binding on the Court and can he ignored if the welfare of the minor requires that some one else, even inconsistently with that law, is the more proper person to be appointed guardian of the minor. Section 19 then provides that: nothing in the chapter shall authorize the Court...to appoint or declare a guardian of the person (a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person; or (b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor,