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First Appeal No. 22 of 1954 decided on 11th January, 1955 from the order of the Guardian Judge, Lahore, dated 11th March, 1954.
Muhammadan Lass‑Guardianship‑Mother of minor marrying after divorce a stranger‑Does not lose her right to hizanat (custody) of minor in all circumstances‑Welfare of minor‑Father's claim to guardianship‑Guardians and Wards Act (VIII of 1890), Ss. 17 (1) and 25.
The Muslim Law does not prohibit a mother who has married a person not related to her minor daughter within the prohibited degrees from being appointed her guardian under all circumstances.
By marrying a stranger the right is not lost absolutely. She only loses her preferential right to the custody of the child which means that if there is another relation of the minor who possesses a right under the Muslim Law to the custody of the person of the minor and to whom the welfare of the minor can be safely and properly entrusted, such a female relation cannot claim the custody of the child as of right.
Mst. Samiunnissa v. Mst. Saida Khatun A I R 1944 All. 202, Tumina Khatun v. Goharjan Bibi A I R 1942 Cal. 281, In re. Ghulam Muhammad A I R 1942 Sind 154 and Gunna (Old another‑ v. Dargahi A I R 1925 Oudh 623 ref.
Mst. Mehraj Begum v. Yar Muhammad A I R 1932 Lah. 493, Mst. Ghulam rlanat v. Bahar Shah and others P L D 1952 B. J. 53 and Ansar Ahmad v. Samidan A I R 1928 Oudh 220, do not state lain correctly.
A father applying under section 25, Guardians and Wards Act for restoration of custody of minor on the mother's marrying a stranger will only succeed if it is for the welfare of the minor to return to the custody of her guardian.
The Court is not required, while dealing with an appli cation under section 25 for the return of the minor to the custody of its guardian, to make an order "consistently with the law to which the minor is subject", as in the case of appointment of guardian under section 17 (1).
A father who in order to avoid his liability for the maintenance of the minor, and for the dower debt of her mother, gave up all claim to the custody when the child was of render age, and who had taken no interest whatever in her existence, the minor being well looked after by the mother, and, being mature and of the age if discretion having refused to go to him did not succeed in his application under section 25 on the ground that the mother had married a. stranger.
Muhammad Latif, for Appellant.
Muhammad Yakub, for Respondent.
‑This appeal arises out of an application under section 25 of the Guardians and Wards Act filed by the appellant, Sh. Amar Elahi,. in the Court of the Guardian Judge, Lahore, against the respondent Mst. Rashida Akhtar‑ for ‑the custody of their daughter Kishwar Sultana. The admitted, or proved, facts relating to the dispute are as follows. The appellant married the respondent some time in 1936 and Kishwar Sultana was born to them on the 7th of April, 1937. Soon afterwards the parents fell out with each other and a protracted litigation between them ensued. Ghulam Husain, the father of the respondent, obtained an order against the appellant under section 488, Cr. P. C., for the payment of a monthly amount for maintenance of the minor. The appellant sued the respondent for restitution of conjugal rights and the latter instituted proceedings for dissolution of her marriage with the appellant and also demanded the payment of her dower money. The appellant divorced the respondent and eventually the parties filed a compromise in the suit for dissolution of marriage whereby the respondent gave up her claim to dower and also released the appellant from his liability to pay maintenance for the minor. On his part the appellant renounced all rights to the custody of the minor girl and agreed that the latter should continue to live with her mother. ("I shall have no right over my daughter named Mst. Kishwar Sultana and she will live with her mother"). Admittedly, since then the appellant has had nothing whatever to do with the minor, who stated in the witness box that she has never seen her father, not even once. Soon after divorcing the respondent the appellant married another lady from whom he has five children, the eldest child being a boy who is now about fifteen years old. In September 1951, the respondent married one Mirza Hidayat Ullah and the appellant filed the present application under section 25 of the Guardian and Wards Act on the 21st of December, 1951. To complete the picture, it may be mentioned, that the respondent's mother was a real sister of the appellant's father and that the respondent's sister, who was examined in this case as R. W. 1, is married to the real brother of the appellant.
It has been brought out in evidence that the appellant has an income of only Rs. 150 per month, that the minor has since some time been living with her maternal aunt whose husband is a brother of the appellant and is in service as a D. F. O. and that the minor is being educated and was, at the tithe the application was filed in the lower Court, readillt, in the 8th standard. After considering all the circumstance", of the case, the learned Guardian judge was of the opinion that "it is not in the welfare of the girl that she should he restored to the custody of her father", and dismissed the application by his order 'dated the 11th of March, 1954. Against that order the appellant has come up to this Court in appeal.
It was strenuously contended by the learned counsel for the appellant that on account of her remarriage with a person who is not related to the minor within the prohibited degrees the respondent has. absolutely disqualified herself from being the custodian of the minor's person and, therefore, there no alternative to the grant of the appellant's petition. Reliance was placed upon a Single Bench decision of this Court in Mst. Mehraj Begum v. Yar Muhammad (A I R 1932 Lah. 493
), and the ruling of a Single Bench Judge of Baghdad‑ul‑Jadid High Court in Mst. Ghulam Janat v. Bahar Shah and others (P L D 1952 B J 53). In both these cases a ruling of the Oudh Chief Court in Ansar Ahmad Samidan (A I R 1928 Oudh 220) was followed without any discussion. In Ansar Ahmad's case Pullan J., without reference to any authority, laid down : "Where the law definitely lays down that an appointment of a certain guardian cannot be made, it is not proper for the Court to disregard the Law even in the interests of the minor." I regret I am unable to agree that these rulings have correctly stated the law on the subject. The abstract proposition stated by Pullan J. is unexceptionable; but the question is, has the Muslim law absolute prohibited a mother who marries a person not related to the minor within the prohibited degree from being appointed as a guardian under all circumstances It is true that such a view has been expressed in some reported cases, but there is no warrant for it in the original texts of Muslim law. In the chapter on A Hizanat" in Baillie's Digest of Mahomedan Law it has been stated : "The rights of all the women before mentioned are made void by marriage with strangers." Keeping in view the entire scheme of Muslim law regarding Hizanat, there can be no doubt that "the right" referred to in this sentence is the preferential right of certain female relations of the minor to its custody. The females possess this right in the following order :‑
(1) mother ;
(2) mother's mother, how high soever ;.
(3) fathers's mother, how high soever ;
(4) full sister ;
(5) utrine sister ;
(6) consanguine sister ;
(7) full sister's daughter ;
(8) uterine sister's daughter ;
(9) consanguine sister's daughter ;
(10) maternal aunt, in like order as sisters ; and
(11) paternal aunt, also in like order as sisters.
The right referred to above can only mean the right of a particular female who, failing those mentioned prior to her, has a right to the custody of the minor, in preference to those whose rights 'have been subordinated to hers. It is a well accepted maxim of Muslims that, failing any female or male relations possessing the right to the custody of a minor or such relations as there may be having lost their "right" on account of some defect or disqualifications, the care of the person of the minor is a concern of the Judge who may make such an. order as he may deem proper and may appoint even a stranger for that purpose. From this it is clear that when it is said that the right of a certain relation has been lost, it can only mean that all things being equal, he or she, as the case may be, must be relegated to a position in the order if priority below those who follow him or her. Thus there can be no room for supposing that the Muslim Law does not permit a disqualified relation to rank even with strangers.
The corresponding rule in Hamilton's Hedaya has been discussed and explained in Mst. Samiunnisa v. Mst. Saida Khatun (A I R 1944 All. 202) by Malik' J. in the following passage, with which I respectfully agree :‑
"The whole law on the subject seems to have been developed on a reply by the Prophet to a woman who had separated from her husband that she had a right in the child in preference to that of her husband so long as she did not marry with a stranger. The reason given in the Hedaya is that the stranger to whom the mother may be married will not have the same affection for the child and may ill‑treat her and the context in which the whole matter is discussed is the respective merit of the various relation and the central idea is as to who is more likely to look after the welfare of the minor. There seems to be nothing in that chapter to indicate that it is a sort of punishment to the mother when she, by reason of the fact that she has married a stranger, is to be punished by not being allowed to have the custody of the child even though there may not be any other 'person capable of looking after the minor."
It would thus appear that by marrying a stranger a mother, or a female relation, only loses her preferential right to the custody of a child which means that if there is another relation of the minor who possesses a right under the Muslim law to the custody of the person of the minor and to whom the B welfare of the minor can be safely and properly entrusted, such a female relation cannot claim the custody of the child as of right. In this view I am supported by the rulings in the case of Mst. Samiunnissa v. Mst. Saida Khatun Tumina Khatun v. Goharjan Bibi (A I R 1942 Cal. 281), In re Ghulam Muhammad (A I R 1942 Sind 154) and Gunna and another v. Dargahi (A I R 1925 Oudh 623). It would be wholly wrong to suppose that the Muslim law of guardianship creates rights in respect of minors for the benefit of their guardians. On the contrary, that branch of the law was evolved for the benefit and welfare of the minor ; and certain relations were given preferential right to the custody of the minor because normally those persons are more interested in the welfare of the minor and are, therefore, better suited to act as guardians.
Even if the appellant's contention were sound, it would not be decisive in this case because here the Court is not called upon to appoint a guardian at all. This is a case where a guardian is asking for the return of the minor to his custody. The distinction between the two cases is apparent from a bare perusal of section 17 subsection (1) and section 25 subsection (1) of the Guardians and Wards Act, which are in the following terms:
Section 17, subsection (1)
"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.'.
Section 25 subsection (1)
"If award leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and, for the purpose of enforcing the order, may cause the ward to be arrested and to be delivered into the custody of the guardian."
It will be noticed that the Court is not required, while dealing with an application under section 25 for the return of the minor to the custody of its guardian, to make an order "consistently with the law to which the minor is subject", D as in the case of appointment of guardian. All that the Court has to consider is whether 'it will be for the welfare of the ward to return to the custody of his guardian'.
Applying the test laid down in section 25 it cannot be said that in the circumstances of this case it would be for the welfare of the minor, Kishwar Sultana, to return to the custody of her father. The appellant, in order to avoid his' liability for the maintenance of the minor, and for the dower debt of her mother, gave up all claim to the‑custody when the child was of tender age. Since then he has not only taken no interest whatever in her existence but has never cared even to see her ; and the girl is now unable to recognise her father and unwilling to go to him. These facts demonstrate the appellant's selfish nature and his utter indifference to the minor. On the other hand the mother and her sister have done creditably by the minor. They have not only brought her up as best as their means permitted but have also given her education. The girl is now of a sufficiently mature age and discretion and her refusal to go to the appellant must, in the absence of special circumstances to the contrary, .be respected. The appellant had launched upon the present- litigation apparently for the purpose of being able to marry the girl to some one of his choice. He is hardly the right person to select a husband for the girl ; and the latter's refusal, to go to him also impliedly includes her refusal to accept a husband of his choice. Moreover, she would be eighteen years of age within a few months and there is now no question of any one inflicting upon her a husband contrary to her wishes.
For the foregoing reasons I uphold the order of the lower Court and dismiss this appeal with costs.
A. H.
Appeal dismissed.
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