FATIMA BIBI Vs. SHAIK PEDA PENTU SAHEB

JUDGEMENT

(1.) This is an appeal from the order of the learned District Judge of Guntur in O.P. No. 110 of 1938. The appellant was the petitioner before the District Court. She said that she was the maternal grandmother of three minor Mahomedan girls. She said that the youngest child was in her custody and that the two elder ones were in the custody of their father the respondent in the petition and the respondent in this appeal. The application was for the appointment of a proper and fit person as guardian of the property of the minors and for delivery of the two elder children to the custody of the petitioner. It was also prayed that the rate of maintenance for the minors may be fixed. The learned District Judge dismissed the petition holding that under Section 19 (2) of the Guardians and Wards Act he had no power to appoint a guardian of the persons of any of these minor children because their father had not been shown to be unfit to be their guardian. The amount of property left by the minors mother, the learned District Judge says, appears to be small and therefore he was of opinion that there was no necessity to appoint a guardian of the property. The maternal grandmother has filed this appeal.

(2.) Mr. V. Suryanarayana for the appellant has agreed that the maternal grandmother cannot in this case pray that she may be appointed as guardian of these children under the provisions of the Guardians and Wards Act. He recognises that Section 19 is a bar since the father has not been shown to be unfit. He contends however that treated as an application under Section 25 of the Guardians and Wards Act the prayer of the grandmother for the custody of the two elder children ought to have been granted and should now be granted by this Court. This contention however must fail when the wording of Section 25 of the Guardians and Wards Act is considered. It appears from the treatises on Mahomedan law that, failing the mother, the custody of a Mahomedan girl who has not yet attained puberty belongs by right to the mother's mother in preference to the father (Vide Mulla on Mahomedan Law, XI Edition Secs.256, 257 and 259). But it is equally settled law that the father of a Mahomedan girl is her legal guardian. Sir Dinshaw Mulla himself on page 255 of the 11 edition of his treatise quotes the decision of the Privy Council in the case of Imambandi V/s. Mutsaddi (1918) 35 M.L.J. 422 : L.R. 45 I.A. 73 : I.L.R. 45 Cal. 878 (P.C.): It is perfectly clear that under the Mahomedan law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian ; the father alone, or, if he be dead, his executor (under the Sunni law) is the legal guardian.

(3.) Now Section 25 makes provision for the restoration to the guardian's custody of a ward who has left or been removed from the guardian's custody. Section 25 therefore can have no application unless it is shown that the ward has left or been removed from the custody of his or her guardian. In the present case there is no allegation that the two elder minors have ever been in the custody of the appellant, their maternal grandmother. The allegation in the petition is that they are in the custody of their father the respondent and it is not suggested that they have been in any other custody during the whole of their short lives. There is therefore no question in this case of the Court arriving at the conclusion that "it will be for the welfare of the ward to return to the custody of his guardian". The petition was therefore rightly dismissed by the learned District Judge and this appeal must fail. Whether the appellant can by a suit in a civil Court enforce her right under the Mahomedan law to the custody of the two elder children is a question upon which no opinion need now be given. The appeal fails and is dismissed with costs.