MT HALIMAN KHATOON Vs. MTAHMADI BEGUM

JUDGEMENT

(1.) This appeal arises out of proceedings under the Guardians and Wards Act. Three persons applied to be appointed guardian of the person of a male minor, named, Mohammad Ayub aged about four years. These three persons were Ahmadi Begam, father's mother's mother of the minor, Zohra Khatun, father's sister of the minor and Mt. Haliman Khatun, own mother of the minor who is the appellant before us. The minor's father Mohammad Yaqub died on 19 January 1944. After his death, Mt. Haliman Khatun, on 1 December 1944, married Ahmad Husain, her father's sister's son. The learned Judge of the Court below held that by this marriage Mt. Haliman Khatun had forfeited her right to be appointed as the guardian of the person of her minor son. He therefore appointed Zohra Khatun, father's sister of the minor as the guardian of his person. It is against this order that Mt. Haliman Khatun has filed these three appeals.

(2.) Under the Muhammadan law mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of a female child until she has attained puberty. But it has been stated that the mother loses the right of custody if she marries a stranger, that is, a person not related to the child within the prohibited degrees. This rule is mentioned in Mulla's Mohammedan Law, 12 Edn., p. 276 as follows: A female, including the mother, who is otherwise entitled to the custody of a child loses the right of custody- (1) if she marries a person not related to the child within the prohibited degrees e.g., a stranger.

(3.) In Tyabji's Mohammedan Law, para. 249, 3 Edn., p. 280 the rule is stated as "the mother loses the claim that she might otherwise have to the custody of a child if she marries a man not related to the child within the prohibited degrees."