SALIM-UN-NISSA Vs. SAADAT HUSAIN

JUDGEMENT

(1.) THE point raised in this appeal relates to the guardianship of a minor Shia girl, about 3 1/2 years old, whose mother died on the 25th of August, 1913. THE maternal grandmother of the minor applied to the court below to be appointed guardian of her parson and property. THE application was opposed by the father and paternal grandfather of the minor. THE father did not apply to act as guardian of the minor, but supported the application of his own father. THE learned District Judge appointed the maternal grandmother as guardian of the person of the minor. THE question as to the guardianship of the minor s property was given up by the applicant. THE father and the paternal grandfather of the minor have come up in appeal to this Court and contend that the order of the court below is bad under the law. It is said that under the Shia law, to which the parties are subject, on the death of the mother or her disqualification for any reason, the nest person entitled to the guardianship of a minor child is its father. It has been pointed out to us that the Shia law on this subject differs from the Sunni law. THE contention for the appellants is borne out by the books on Shia law, to one of which we may refer here. Mr. Ameer Ali in his book on Mahammadan Law, Vol. II, 3rd edition, page 294, says as follows: " THE Shias are in agreement with the Sunnis with regard to the general principles governing the right of hizdnat. But among them, in the absence of the mother, the right passes to to the father, and failing him to the grandparents and other ascendants." THE maternal grandmother had therefore no right to claim to act as guardian of the minor girl when her father was alive. THE appeal prevails and is allowed. We set aside the order of the court below and dismiss the application of Musammat Salim-un-nissa. Costs are allowed to the appellants.