MT SAKINA BEGAM Vs. MALKA ARA BEGUM

JUDGEMENT

(1.) This is an appeal against an order of the learned District Judge of Moradabad by which he dismissed the application of the appellant, Mt. Sakina Begum, for her appointment as a certificated guardian of the persons of her: minor daughters named Naima Begum and Amina Begum.

(2.) The two minors are aged a year and a half and four years, respectively. The rival in the field was their father. The learned Judge thought that the father had a preferential claim both with regard to the guardianship and the custody of the minors.

(3.) Mt. Sakina Begum has come in appeal and her learned Counsel argues that the mother has the preferential claim under the Hanafi law. In support of this contention reliance is placed upon Mt. Haidari Begum V/s. jawwad Ali Shah . There, the contest lay between the mother, who was living in Lucknow, and the father, who was living in Gorakhpur and who had, at the time of the contest, the custody of the child. It might also be noted that the child there was a male child; here we have two female children. At p.401, the learned Judges observe: We also have to take into consideration the personal law to which the parties are subject, and that law is the Mahomedan Law of the Hanafi school. It has been shown to us that under this personal law, the mother would ordinarily be entitled to the personal custody of the child up to the age of 7 years. She may be deprived of that right on certain grounds, but no such grounds appear to exist in the present case. The mother is, therefore, entitled to the custody of the children.