MOHAMMAD FASAHAT ULLAH Vs. MUSAMMAT TAHIRA BIBI

JUDGEMENT

(1.) THIS is an appeal under the Guardians and Wards Act. The appellant before us, Muhammad Fasahat Ullah, is the father s brother of a certain minor girl. The respondent Musammat Tahira Bibi is the mother s mother of the same girl. In a previous proceeding, with which we are not now concerned, the District Judge had appointed Fasahat Ullah to be the guardian of the property and Tahira Bibi to be the guardian of the person of the aforesaid girl. It is evident that these two persons are not on good terms and the record before us shows that the District Court has been frequently-asked to adjudicate upon disputes between them. The dispute out of which this appeal has arisen was as to the right of disposing of the hand of this girl in marriage. The position was a somewhat curious one, inasmuch as the paternal uncle has undoubtedly under the Muhammadan Law a preferential right over the mother s mother to dispose of the hand of this girl in marriage, so long as she remains a minor under the Muhammadan Law, that is to say, so long as she neither attains the age of fifteen nor attains puberty. Now Fasahat Ullah applied to the District Judge for two things. He asked him to remove Musammat Tahira Bibi from her position as guardian of the person of the minor; secondly, he asked the Court to order or direct that this girl should be married to a certain person named by him as a suitable bridegroom. The District Judge came to the conclusion that adequate cause for the removal of Tahira Bibi was not shown. He went on apparently to presume that he had sufficient jurisdiction over the person of this minor to pass an order, one way or the other, as to the suitability of any proposed bridegroom. Indeed, curiously enough, this point seems to have been conceded by the parties in the Court below; for Fasahat Ullah had acquiesced in a previous order of the same Court rejecting a bridegroom proposed by him as unsuitable and the form of the application on which the present order has been passed seems to assume the existence of jurisdiction on the part of the Court to which it is made either to grant or refuse it. At any rate the District Judge has come to the conclusion that the proposed bridegroom was unsuitable and that it was not in the interests of the minor that she should be married to him. He accordingly dismissed the whole of the application.

(2.) THE appeal before us is against the entire order of the District Judge, and it apparently intends to raise both the points decided against the appellant. With regard to the removal of Tahira Bibi from the guardianship over the person of the minor girl, the application for removal has been supported before us on the basis of Section 39, Clauses (d) and (g) of the Guardians and Wards Act, VIII of 1890. Without going into unnecessary details, it seems sufficient for us to say that we have considered the points pressed upon our notice and that we are not satisfied that sufficient cause has been shown for the removal of this guardian. THE question of the respective rights of the parties, and of the rights and duties of the Court, in the matter of the marriage of this minor is a more difficult one. In Lal Singh v. Sham Lal 27 Ind. Gas. 381 : 98 P.R. 1914 : 201 P.L.R. 1915 the Punjab Chief Court held that it is no part of a Court s duty under the Guardians and Wards Act to assume direct responsibility for the marriage of a minor. In Monijan Bibi v. District Judge, Birbhoom 25 Ind. Cas. 229 : 20 C.L.J. 91 : 19 C.W.N. 290 : 42 C. 354 the Calcutta High Court has held that award of Court cannot marry without the consent of the Court and that, if a proposed marriage is unsuitable, the Court, representing the Sovereign power, may restrain the marriage, even though the guardian has given his consent. THEse two principles are not irreconcilable so far as the case now before us goes. We think that there is no necessity for us to interfere with the order of the District Judge. Since the order was passed the girl in question has completed her fifteenth year of age and is now competent under the Muhammadan Law to contract a valid marriage with a husband of her own choice. As the case now stands, we certainly do not think that it would be right for us to reverse the order of the Court below, in such a manner as to direct that the person of the minor be made over to the appellant in order that he may force upon her a husband of his own choice. THE District Judge acted in what appeared to him to be best interests of the minor and we are not satisfied that he made any mistake in the view which he took of what those interests demanded. THE result is that as the case stands at present we do not think that any good purpose will be served by allowing this appeal. We dismiss it accordingly with costs.