MT SAMIUNNISSA Vs. MTSAIDA KHATUN

JUDGEMENT

(1.) This is an appeal against the order passed by the learned District Judge of Bulandshahr under the Guardians and Wards Act (Act 8 of 1890). The appellant Mt. Samiunnissa applied that she be appointed guardian of the person of the minor Rashida Khatun, who at the time of the application in the year 1941 was a girl ten years old. The application was opposed by the mother of the minor Mt. Saida Kha- toon. During the pendency of the contest between the mother and the grandmother of the minor, Sayeed Ahmad brother of the appellant filed an application on 3 August 1941 supporting the application of Mt. Samiunnissa for guardianship and praying in the alternative that in case the Court was not willing to appoint Mt. Samiunnissa the Court may appoint him, Sayeed Ahmad, as the guardian. The learned District Judge by an order dated 30 August 1941 appointed the mother as guardian of the person of the minor and directed that the mother should make proper arrangements for secular and religious education of the minor and submit a report to the Court on these points from time to time, and further passed an order that she or her husband Abdul Aziz should not arrange the marriage of the minor without the Court's permission. Sayeed Ahmad has taken no further interest in the proceedings and is not represented before me. The grandmother Mt. Samiunnissa, however, objects to the order passed by the learned District Judge and claims that she should have been appointed the guardian of the minor. Saida Khatoon, the mother of the minor, was known as Daisy Lal and was married to a Christian. On the death of her husband she embraced Islam and assumed the name of Mt. Saida Khatoon and married Jamil Ahmad, a Syed, who worked as a motor driver. The minor is the daughter of Jamil Ahmad by Mt. Saida Khatoon. Syed Jamil Ahmad died in the year 1933 and in January 1936 Mt. Saida Khatoon married one Abdul Aziz, L.M.S., medical practitioner, Bulandshahr. Abdul Aziz is not related within the prohibited degrees to the minor, and under the Mahomedan law, on Mt. Saida Khatoon's remarriage with Abdul Aziz, who was a person not related within the prohibited degrees, she, Mt. Saida Khatoon, lost her right to guardianship and under the Mahomedan law Mt. Samiunnissa, the grandmother of the minor became entitled to the guardianship. The learned Counsel for the appellant, therefore, urges that the learned District Judge had no right to appoint Mt. Saida Khatoon as the guardian of the minor and he was bound to act according to the personal law of the minor and appoint the appellant Mt. Samiunnissa. Great reliance is placed on behalf of the appellant on Section 17, Clause (1), Guardians and Wards Act and the interpretation put on that section by a Bench of this Court in Kundan V/s. Aisha Begam . Section 17, Clause (1), Guardians and Wards Act reads as follows: In appointing or declaring the guardian of a minor the Court shall, subject to the provisions of this 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 learned Counsel for the appellant argues that the Court can, therefore, consider the welfare of the minor and appoint a guardian consistently with the law to which the minor is subject, and the personal law can, therefore, not be disregarded by the Court and must be obeyed. Reliance is placed, as I have already said, on a Division Bench ruling of this Court reported in Kundan V/s. Aisha Begam . In that case a minor Muslim girl was living with her grandmother who before she had married was a prostitute, and after she became a widow she again went back to her former life and was living with some of her female relation who were still carrying on the profession of prostitution. The mother to have the child removed from such surroundings applied that she should be appointed the guardian of the minor. Her application was opposed on the ground that the mother, since she had married a second husband who was not related within the prohibited degrees to the minor was not entitled to guardianship under the Mahomedan law. Considering, however, all the circumstances of the case the learned District Judge of Moradabad had held that keeping in view the welfare of the minor, the mother should be appointed the guardian of the minor and not the grandmother who had during the pendency of the application of the mother also applied to be appointed a guardian. The grandmother appealed to this Court and a Bench of this Court held that as the mother had remarried and to a person who was not related within the prohibited degrees to the minor, the mother could not, consistently with the Mahomedan law which governed the parties, be appointed guardian of the minor, and as the grandmother was also an undesirable person to be put in charge of the minor girl, they held that the grandmother also could not be appointed guardian of the minor, and on the ground that the minor was aged about 17 and would soon become a major the Court decided not to appoint either the mother or the grandmother as guardian. The result of that decision must be that the choice was left to the minor to choose whether she would live with her mother or with her grandmother, the Court taking no responsibility in the matter.

(2.) If that case stood by itself, as it is a Division Bench ruling, I would be bound by it. With due respect to the learned Judges who decided that case I do not find it possible to accept their view. So far as I have been able to understand Section 17, Guardians and Wards Act, the primary consideration for a Court, which has to deal with the question of guardianship of the minor, is the welfare of the minor. In considering what is for the welfare of the minor, the Court will act consistently with the personal law governing the minor. To illustrate this matter further with reference to the facts of this case the proper approach will be to see who is the guardian under the Mahomedan law, and in this case the guardian under the Mahomedan law being the grandmother, the Court will generally appoint the grandmother unless there were such overriding considerations which compelled the Court to appoint somebody else. In the case reported in Kundan V/s. Aisha Begam , the Court being definitely of the opinion that the grandmother, who was the guardian under the Mahomedan law was not the proper guardian I think the Court was not debarred by any provision contained in the Mahomedan law from appointing the mother merely because she had remarried outside the prohibited degrees. There can be no doubt that Section 17, Guardians and Wards Act does apply to Muslims, and it is open to the Court to appoint a stranger as guardian to the person of a minor; the guardian so appointed not being a guardian under the Mahomedan law, if no guardian under the Mahomedan law is forthcoming or is available. The mother may have lost, her right to guardianship under the Mahomedan law but she cannot be in a worse position than a stranger, and I cannot find any provision under the Mahomedan law which forbids her appointment as guardian, if the Court cannot find a more suitable person. Strictly speaking, under the Mahomedan law, the mother is not a natural guardian at all : see Imambandi v Mutsaddi ( 18) 5 A.I.R. 1918 P.C. 11. She has merely the right of htzanat, custody of the child, up to a certain age according to the sex of the child. To my mind, if the Court, keeping in view the welfare of the minor, considers that the mother should be appointed a guardian in preference to any other natural guardian under the Mahomedan law, the order passed cannot be challenged on the ground that the Court had no power to do it. Though, as I have already stated, the Courts should make an attempt so far as possible to follow the line of guardianship fixed under the personal law of a minor, I am not prepared to hold that they must subordinate the welfare of the minor and must, whatever the consequence, appoint the natural guardian under the personal law.

(3.) The learned Counsel for the appellant has relied on two other cases. One is reported in Ansar Ahmad V/s. Samidan ( 28) 15 A.I.R. 1928 Oudh 220. In that case the mother had remarried without the prohibited degrees and Pullan J. remanded the case to the District Judge to find out whether a suitable guardian under the Mahomedan law was available and willing to accept the guardianship. This view of the law is not in conflict with the view that I hold, as, to my mind, where a suitable guardian is available he or she should be appointed and not a disqualified person under the Mahomedan law. This case does not go further to hold that where there is no suitable person even then the mother should not be appointed a guardian because she has remarried. The other case relied on is Mt. Mehraj Begum V/s. Yar Mohammad ( 32) 19 A.I.R. 1932 Lah. 493, a judgment of Abdul Qadir J. of the Lahore High Court. In that case the conflict was between the mother and the grandfather and the Court held that the grandfather should be appointed the guardian. There are certain observations in that judgment approving of the observations of Mr. Wilson in his well known commentary on Mahomedan law, that it was not possible to subordinate the law to which the minor is subject to the consideration of what will be for his or her welfare.