TUMINA KHATUN Vs. GAHARJAN BIBI

JUDGEMENT

(1.) Moksed and Fatema are the infant son and daughter of Amina and Mobarak Ali. They are aged about four years and six years respectively. Both their parents are dead. Tumina Khatun, the sister of Amina, applied for the guardianship of the person and property of these two infants. Amina's father, Isurhaddi, applied to be appointed guardian of the property only of the minors, and Tumina gave up her claim in this respect. The applications-were opposed by Gahar Ali Mridha, the paternal grandfather of the minors. The learned District. Judge has appointed Isumaddi guardian of the-property of the minors, and this part of the order is not appealed against. He has dismissed Tumina's application to be appointed guardian of the persons of the minors and has appointed Gahar Ali's wife, Gaharjan, the step-mother of Mobarak Ali, as such. The appeal is against this order.

(2.) On behalf of the appellant it is argued that Tumina, as maternal aunt, has, under the Mahomedan law, a preferential right to the custody of the minors and that the reasons given by the learned Judge for not appointing her are insufficient. It is pointed out that Gaharjan, being the step-mother of the father of the minors, has no right under the Mahomedan law to be appointed guardian. Learned advocate for the respondent contends, firstly, that the reasons given by the learned Judge for not appointing Tumina are good ones; secondly, that Tumina, having married a person not related to the minors within the prohibited degrees, she has disqualified herself from claiming to be guardian of the minors under the Mahomedan law and that the Court in these circumstances could not appoint her as guardian as the provisions of Section 17, Guardians and Wards Act forbade such appointment.

(3.) I shall deal with the question of disqualification later and shall assume for the present that there is no disqualification. Tumina, being a maternal aunt, has certainly a preferential right to the custody of the two minors under the Mahomedan law. Now Section 17, Guardians and Wards Act, provides that, in appointing a guardian of a minor, the Court should, subject to the provision of the section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. The section goes on to say that, in considering what will be for the welfare of the minor, the Court should have regard to the age and sex of the minor, the nearness of kin of the proposed guardian and similar matters. It is clear from the section that normally Tumina, who under the Mahomedan law would be entitled to the custody of the children in preference to any one else, should be appointed guardian and that it is only in exceptional circumstances that any one else could be appointed. The learned Judge seems to have accepted this position. What has to be decided is whether the reasons assigned by the learned Judge for not appointing Tumina are adequate. The reasons given by the learned Judge are two, viz.: (i) She is 21 years of age and has two children and may have more; she is too young and will not have the time to look after the minors. (ii) Neither she nor her husband have deposed in the case and it is her father Isumaddi who has applied for her.