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Civil Appeal No. 75 of 1961, decided on 18th August 1964.

S. 17‑Personal law of minor‑Not absolutely binding on Court‑Can be ignored in appointing guardian if welfare of minor so requires‑Muslim woman, on death of her husband, marrying another person not related to her minor daughter, by previous husband, within prohibited degree --Not disqualified to be guardian of minor in all circumstances-- Guardianship of mother allowed to prevail over claim of paternal grand‑mother of minor in circumstances of case.

Ansar Ahmad v. Samidan A I R 1928 Oudh 220 and Mst, Mehraj Begum v. Yar Mohammad A I R 1932 Lah. 493 ref:

Tumina Khatun and another v. Goharjan Bibi 45 C W N 515 and Mst. Siddiqunnisa Bibi v. Nizamuddin Khan and others A I R 1932 All. 215 rel.

Syed A. B. Mahmood Hussain and Muhammad Yahya for Appellant.

A. S. M. Mofakher for Respondent.

This appeal arises out of an order passed by the learned Additional District Judge, Chittagong, appointing Maimuna Khatun, the guardian of the person and property of the minor Khaleda Begum. The respondent Maimuna Khatun filed an application before the lower Court for appointing her as the guardian of the person and property of the minor Khaleda, alleging inter alia, that Zohura Begum (the appellant before me) the mother of the minor left the protection of her mother‑in‑law Maimuna Khatun just after the death of Nur ul Islam, the son of the Maimuna Khatun and husband of Zohura Begum and that though the minor was living with her grandmother, namely, the petitioner, it was desirable that Maimuna Khatun, namely the grandmother might be appointed guardian of the person and property of the minor. It was further alleged that Zohura Begum, the mother was not a proper and fit person to be the guardian of the person and property of the minor inasmuch as within a short time of the death of her husband she took another husband and went away to the house of the second husband which was at a distance of 14/15 miles from the house of the petitioner.

The prayer of the respondent was opposed by Zohura Begum, the mother of the minor, on the ground that Maimuna Khatun was very old so much so that she was not in a position to look after the welfare of the minor; that the second husband of Zohura Begum was not a stranger to the family inasmuch as he married a daughter of Maimuna Khatun and on the death of the daughter of Maimuna Khatun, he married Zohura Begum and that the second husband who was a Fufa of the minor was very fond of her and was looking after the welfare of the minor by spending out of the fund belonging to him.

The petitioner Maimuna Khatun only examined herself in support of her case and the opposite‑party, namely, Zohura Begum examined herself, her second husband and another person in support of her case.

The learned Additional District Judge after going through the evidence was satisfied that the welfare of the minor would be safe‑guarded and the minor would be looked after if the grand mother, namely, the petitioner Maimuna Khatun, was appointed the guardian of the person and property of the minor and in this view of the matter appointed the grandmother, who is the respondent before me, as guardian of the person and property of the minor. The mother Zohura Begum preferred the appeal to this Court.

On behalf of the appellant it has been argued that in the facts and circumstances of the case as disclosed on evidence the mother Zohura Begum is the proper person to look after the welfare of the minor and as such she should have been appointed as guardian of the person and property of the minor. Mr. Mofakher, the learned Advocate for the respondent, has contended that as the mother Zohura Begum took a second husband who is not related to the minor within the prohibited degrees, she lost her right to be the guardian of the minor's person and property. He has also argued that the facts as disclosed by evidence show that it is only Maimuna Khatun who is a fit and proper person to be the guardian of the person and property of the minor. I propose to deal first with the question of law raised by Mr. Mofakher in support of his contention.

In support that the moment the mother takes a second husband not related to the minor within the prohibited degrees the mother loses her right of guardianship, he has relied on the provision of the Mohammedan Law and also the cases of Ansar Ahmad v. Samidan (A I R 1928 Oudh. 220) and Mst. Mehraj Begum v. Yar Mohammad (A I R 1932 Lah. 493).

Under the Mohammedan Law, the mother has the right to the custody of her infant children of a male child until the child has completed the age of 7 years and of a female child until she has attained puberty but that right may be lost (1) if she, namely, the mother marries a person not related to the child within the prohibited degrees or (2) if she is leading an immoral life or she is a prostitute or if she neglects to take proper care of the children.

In the present case it has not been alleged by the respondent, grandmother of the child, that the mother of the minor is leading an immoral life nor has it been asserted that she neglects to take proper care of the child. Of course it appears from her assertion that the mother after taking the second husband left the child with the grand mother, namely, the respondent but nowhere any allegation has been made that while the mother was with her child, she ever neglected to take care of the child. It also appears that the learned Additional District Judge made out a new case that the mother of the child left the child behind with the grand mother immediately after her first husband had died but this observation of the learned Additional District Judge is neither supported by evidence or pleadings nor has it been argued vehemently by Mr. Mofakher, though in the first instance, he half -heartedly tried to support the observation of the learned Additional District Judge. It may also be pointed out that the case of negligence by the mother of the child could not have been made out at any stage inasmuch as it was asserted that the child was living with the grandmother and not with the mother.

Now remains only the question of re‑marriage. It is an admitted fact that she had to leave the first husband's house immediately after the death of her first husband and she went to the house of a person where she was nursed and brought up from her infancy and was given in marriage to the son of the respondent and it is also an admitted fact that from that place Zohura Begum has taken a second husband. Now it is an admitted fact that the second husband was closely related to her before her marriage with him inasmuch as the second husband married her sister‑in- law, namely, the sister of her first husband and the daughter of the respondent. So as matter stood before the death of Nur ul Islam, the first husband the minor was the niece of the second husband of Zohura Begum. Still it cannot be said that the second husband of Zohura Begum is related to the child within the prohibited degrees.

Relying on these facts Mr. Mofakher has argued that as the mother's right of guardianship of the minor, by taking a second husband not related within the prohibited degrees, has been lost, she is not under the law permitted to be appointed as a guardian of the minor child. I have already mentioned the two cases on which Mr. Mofakher relied in support of such contention. In the case of Ansar Ahmad v. Samidan, it was laid down that all the authorities of Mohammadan Law are agreed that the mother is disqualified from the guardianship even of her minor daughter if she is married to a man who is not related to the minor within the prohibited degrees. In that case Mst. Samidan married a man who was a stranger and it was observed that under section 17, Guardians and Wards Act, a Court in appointing a guardian must make an appointment consistently with the law to which the minor is subject, that where the law definitely lays down that an appointment cannot be made, it is not proper for the Court to disregard the law even in the interests of the minor. In the case of Mst. Mehraj Begum v. Yar Mohammad, Abdul Qadir, J. agreed with the view expressed in the Oudh case cited above and further observed

"I am of opinion that the trial Court was right in accepting the application of the grandfather and giving him the guardianship of the person as well as of the property of Mst. Fahmida Begum and allowing him the custody of the girl."

To meet this the learned Advocate for the appellant Mr. Yahya referred to certain decisions and contended that the Mohammedan Law only lays down about the preference in respect of the guardians of the minor and nothing more and that the Mohammedan Law does not lay down that if the interest of the minor be adversely affected by other preferential guardian yet that person shall have to be appointed guardian, rather having in view the interest of the minor guardian shall have to be appointed.

In the case of Tumina Khatun and another v. Goharjan Bibi (45 C W N 515) a Division Bench of the Calcutta High Court has observed that under the Mohammedan Law, a female relation of a minor, on marrying a stranger, does not become disqualified to be guardian altogether and in all circumstances she only loses such preferential right as she had. It had been further observed that when a female relation is otherwise eligible for guardianship, the facts that she is aged 21 and has her own children and that the application on her behalf was made by her father are no reasons for not appointing her as a guardian. In the case of Mst. Siddiqunnisa Bibi v. Nizamuddin Khan and others (A I R 1932 All 215), Sulaiman, A. C. J. observed

"There can be no doubt that so far as the power to appoint and declare the guardian of a minor under section 17 of the Act is concerned the personal law of the minor concerned is to be taken into consideration, but that law is not necessarily binding upon the Court, which must look to the welfare of the minor consistently with law. This is so in cases where section 17 applies. In such cases the personal law has to this extent been superseded that it is not absolutely binding on the Court and can be ignored if the welfare of the minor requires that some one else, even inconsistently with that law, is the more proper person to be appointed guardian of the minor."

I am in full agreement with the aforesaid observation of the learned Acting Chief Justice.

Under the Mohammedan Law, having regard to how the minor's welfare and interest will be protected, a table has been given according to which preference would go first to the mother if she is not otherwise disqualified. That does not necessarily mean that the duty imposed upon the Court to protect the minor's interest has been overridden by such provision. The Court, having regard to the provision of the Mohammedan Law and also the welfare of the minor, should appoint a guardian and not blindly merely because a mother has a preferential right or merely because a mother has lost her preferential right after having taken a second husband not related to the minor within the prohibited degrees. Having this principle in view, I am to consider whether the appointment of the grandmother in this case will better serve and protect the interest of the minor girl.

The grandmother Maimuna Khatun has only examined herself in support of her case and there is none to corroborate her.

I am not giving importance to corroboration of the evidence of any particular witness but I am looking into the evidence of the persons examined in this case in order to see who will be the best guardian of the person and also of the property of the minor.

Maimuna Khatun is aged. She has no son to look after her. In these circumstances it is very difficult to hold that Maimuna will be in a position to look after the welfare of the child. The pecuniary circumstances of Maimuna Khatun also appear to be not very happy. It has been asserted on behalf of the mother of the minor girl that Maimuna being old and not in affluent circumstances, is living with her daughters by rotation. That deposition cannot be brushed aside totally though it has been asserted that Maimuna Khatun has sufficient fund and will engage a servant for looking after the girl. The evidence as to income of Maimuna does not disclose that she is in a position to engage a Dai, a maid‑servant to nurse the child. It is also seen that an old person is not a proper companion for a child. The child requires some play mates of her own age though it is seen that sometimes being exhausted, the child goes to her grandmother. That does not necessarily mean that the grandmother is the best person for a child. It is not in evidence that there are other children in the place where the grandmother lives with her. But there is evidence that after the second marriage, the mother gave birth to some children who will be in a position to keep company with her. It has been contended on behalf of the respondent that as Zohura Begum has other children, it is not possible for her to look after the welfare of the minor daughter of her first husband. This assertion cannot be given effect to as merely because the mother has a number of children, that does not necessarily mean that the mother cannot or will not look after the welfare of her own child. In this connection it may be further pointed out that the minor is living with her mother for some years but no evidence has been led that she was ill‑treated by her step‑father or by the present children of her mother by the second husband. The second husband also deposed in favour of the claim of Zohura Begum and has given assurance that he will not charge any money for the maintenance of the minor child, rather he will look after the welfare of the minor. It is curious that none of the daughters of Maimuna Khatun or the sons‑in‑law was examined and deposed in support of Maimuna's claim, though one was in the Court house then.

The learned Additional District Judge appointed the grand mother as the guardian for the following reasons

(1) Zohura lived in the house of opposite‑party No. 3 Mustafizur Rahman Choudhry after Nur ul Islam's death leaving behind Khaleda with Maimuna;

(2) Zohura lives at 'a distant place;

(3) a criminal case was pending in respect of the kidnapping of the minor from the custody of her mother Zohura Begum;

(4) the mother has taken a second husband and has to look after the husband and the other children whereas Maimuna has no body to look after, and

(5) father's sisters will also have some natural love and affection for Nurul Islam's only child.

I have already observed that the observation of the learned Additional District Judge that Zohura Begum left her child with the respondent while the child was only four months old is wrong inasmuch as the case of Maimuna Khatun in her application and also evidence is that the child was left with her when Zohura Begum took the second husband. That assertion has also been denied by Zohura Begum and it has been claimed that the child has all along been with her. The mere presence of the criminal case cannot be any justification for appointment of a guardian. There is no evidence that the sisters of the father of the child are ever looking after the welfare of the minor. They never came to Court to substantiate the claim of the grandmother of the child, or to give assurance to protect the interest of the minor if the grandmother was appointed guardian of the minor and to render help in that connection.

Having regard to the facts and circumstances as disclosed from the record I am of the opinion that the minor will be well looked after and cared for according to her social status if the mother Zohura Begum be appointed as guardian of the person of the minor. As regards the property it is seen that the property is being managed by the grandmother. So she will be the proper person to render accounts and manage the properties.

I accordingly allow the appeal, and modify the judgment and order passed by the learned Additional District Judge by appointing Zohura Begum the guardian of the person of the minor Khaleda and affirming Maimuna Khatun as guardian of the property of Khaleda. Maimuna Khatun will be at liberty to visit her grand child and Zohura Begum will also be at liberty to come to the house of her first husband with the child, so that the old lady may be satisfied by seeing the only child of her deceased (only) son. As regards the property, I direct the learned Additional District Judge that Maimuna Khatun be asked to render accounts of the income of the property and if there be income, that may be kept in deposit to be spent under Court's direction for the benefit of the minor when the occasion arises.

Having regard to the facts, I direct the parties to bear the respective costs of this Court.

K. B. A. Appeal accepted.

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