Alladi Kuppuswami, J.
1. The appellant is the grandmother (mother's mother) of minor girl Jameela, whose mother died on 25-11-1968 after undergoing a caesarean operation at the Railway Hospital, Lallaguda and giving birth to the minor who fortunately survived. The child was thereafter taken to the Niloufer Hospital where she was treated for about a month. Thereafter the child was taken away by her father, the respondent herein, to his house. On the 5th February, 1969 the appellant herein filed a petition under Section 53 of the Hyderabad Children Act for the custody of the minor child on the ground that he child was being ill-treated by the respondent.
On this petition, a warrant was issued and the child was produced by the father in the Court. The father also filed a counter challenging the allegation, made against him by the appellant. The Magistrate passed an order directing that the child be given to the care of the appellant. As against this order, the respondent field Crl. R.C. 285/69 to this Court. The revision petition was allowed and the case was remanded to the Magistrate with a direction to dispose of the case after taking oral and documentary evidence. This court directed that the child should remain in the custody of the appellant till the enquiry was completed and final order was passed. After remand the Magistrate passed an order on 24-7-1970 dismissing the petition by the appellant.
2. Meanwhile, on the 20th February, 1970 when the petition before the Magistrate was pending after remand, the appellant herein filed a petition under Sections 9 and 10 of the Guardians and Wards Act, before the Chief Judge, City Civil Court, Hyderabad, praying that she may be appointed as the guardian of the person of the minor. Subsequently the petition was amended by including a prayer that the petitioner may have the custody of the minor child. In the petition it was alleged that the respondent beat his wife Ghousei Begum, the mother of the minor child severely and ill-treated her. On the night of 25-11-1968 due to such ill-treatment she became unconscious and was admitted into Railway Hospital Lallaguda under a different name, namely Akina Bee, wife of Abdul Waheb, the brother of the respondent. Ghousia Begum underwent caesarean operation the next day, but the child survived. The appellant filed a petition before the Magistrate for custody of the child under Section 53 of the Hyderabad Children Act and obtained custody of the child.
3. She was treating the child with love and affection. In the interests of the minor the appellant was the proper person to be appointed as the guardian, being its maternal grand-mother and to retain the minor in her custody. The Additional Chief Judge, City Civil Court, who heard the petition, after discussing he oral and documentary evidence, came to the conclusion that the interests of the minor require that the appellant should be appointed as the guardian and retain the custody of the minor. She, therefore, allowed the petition.
In the course of the judgment it was observed that the respondent had married again. The respondent's mother who, the respondent stated would be in the position to look after the child, had no other income but was depending on the charity of her children. The respondent had not paid anything towards the maintenance of the child during all the three years when the child was in the custody of the grand-mother. The minor being a female child, under Mohammedan Law, the maternal grand-mother was entitled to the custody of the minor in the absence of the mother, though the father as a natural guardian was entitled to have control and supervision of the child. It was in evidence that the minor was brought up with care and affection by the grand-mother and was in good health. For these reasons the learned Chief Judge took the view that the petition should be allowed.
4. The respondent herein preferred an appeal, C.M.A. No. 498 of 1972 to this Court. Chinnappa Reddy, J., did not believe the story of the appellant that the respondent ill-treated his wife and that she became unconscious. On the other hand he was satisfied that the appellant herein thought of getting the custody of the child only when the respondent refused to return the dower and articles of Jehaz. He observed that the mere fact that the respondent married a second wife is not a ground to deprive him of the guardianship of the child. It was not shown that he was unfit to be the guardian. In the interests of the welfare of the child the respondent alone should be the child's guardian.
It was contended before him that in any event the grand-mother had the right to the custody of the minor girl under Mohammedan Law. The learned Judge observed that in the present case we are concerned only with the question of guardianship and no case was made fit for appointing her as guardian in the place of the father. She could not obtain custody of the child in a proceeding under the Guardians and Wards Act unless the child was removed from her custody. In the result he set aside the order of the lower Court and allowed the appeal with costs.
5. The appellant herein has preferred this L.P.A. against the judgment of our learned brother, Chinnappa Reddy, J.
6. Sri Umakant Naik, learned counsel for the appellant has raised the following contentions:
'1. The evidence discloses that the father is unfit to be the guardian of the child and the grand-mother has to be appointed as a guardian in his place.
2. In any event, if the maternal grand-mother cannot be appointed as a guardian she is entitled to the custody of the minor under Mohammedan law and as the application is not only for being appointed as guardian but also to retain the custody of the minor, the application could have been ordered, at least to the extent that the appellant's prayer for the minor being retained in her custody.'
7. The case of the material grand-mother is that the father of the minor child treated her mother cruelly with the result she became unconscious just on the day prior to the birth of the minor child. He did not also treat the minor child after the birth of the minor and did not care for the minor for over three years after minor was placed under the custody of the grand-mother. He also drew our attention to the fact that the father admitted his wife into the hospital under a false name, namely, Amina Bee, wife of Abdul Waheb, his brother, and a person who would go to such an extent is not a fit person to be the guardian of the minor. We have gone through the evidence of the case.
We agree with our learned brother that it is not established that the respondent ill-treated the minor. The child was only 10 or 15 days with him and it is absolutely unbelievable that he would have ill-treated the child during that period. There is no reliable evidence that he treated the wife cruelly. Even assuming that he did not treat her properly, in our view that conduct is not relevant in considering whether the appellant is fit to act as a guardian of the minor child. In regard to the admission of his wife under a disguised name, the explanation given by him was that as his brother was an employee of the railway he felt it was easier to get her admitted into the railway hospital. The explanation, in our view seems to be probable and it was not with any other intention that he got her admitted under a different name, but only because he was anxious that she should get admission. Further, even that conduct is not relevant to the question whether he is fit to be the guardian of the minor child. We therefore agree with Chinnappa Reddy, J., that it has not been proved that the appellant was unfit to be the guardian by reason of any cruelty or ill-treatment of the child on his part.
8. At the same time we are unable to agree with the finding of the learned Judge that the appellant sought custody of the child only because the respondent refused to return dower and the article of jehar. It is true that on 4-1-1969 when she caused a lawyer's notice to be issued to the respondent, the notice, referred only to the claim for dower and articles of Jehaz. But the mere fact that no mention was made about the custody of the minor in that notice does not mean that she was not interested in the custody of the minor.
On the other hand, within a month thereafter she filed a petition for the custody of the minor child before the Magistrate. It is also in evidence that after she obtained custody she has been looking after the minor child with care and affection. The minor child is in god health. We considered it desirable even to send for the minor child and we find that the minor child was even regarding the grand-mother and grand-father as mother and father respectively. The mother of the respondent also admitted in her evidence that the child was being looked after well by them and she was hale and hearty. We are of the view that the grand-mother is genuinely interested in having the custody of the minor in the interests of the minor's welfare.
9. The question then arises, whether having regard to the above findings, the grand-mother is entitled to be appointed as the guardian of the minor child or at any rate she is entitled to retain the custody of the minor child.
10. We have no doubt that the appellant is not entitled to be appointed as guardian. Under Mohammedan Law the father is the natural guardian and we have already held that the story that he ill-treated the child is not established. Under Section 19 of the Guardians and Wards Act the court is not entitled to appoint or declare a guardian of the person of the minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor.
In this case we have already observed that we cannot consider that the father is unfit to be the guardian of the person of the minor. The mere fact that he married a second time is no ground for holding that he is unfit to be a guardian. Vide Audiappa v. Nallendran, ILR 39 Mad 473 = (AIR 1916 Mad 605). The court is not also concerned with the comparative fitness of the father and any other person claiming to be appointed as guardian of the person, the only question being whether the father is fit or not fit to be the guardian. In these circumstances the prayer of the appellant that she should be appointed as guardian of the minor cannot be granted.
11. But it does not follow that the appellant cannot be permitted to retain the custody of the minor, which is the alternative prayer in the petition as amended. Under Hanafi School of Mohammedan Law, to which the parties belong, the mother is entitled to the custody (Hizanath) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. In this Chief Justice, the minor is a female child who has not attained puberty as she is only six years old even today. In the absence f the mother, the custody of such a child belongs to the mother's mother, namely, the appellant herein. There can be do doubt, therefore, under the personal law of the parties the appellant is entitled to the custody of the minor and not the father.
Thus, the petition under Mohammaden Law is while the father is the guardian of the minor, the custody of the minor should be with the grand-mother in the present case as the minor is a female child who has not attained puberty. It was however, contended that Section 19 of the Guardians and Wards Act expressly provides that no order appointing or declaring a guardian should be made for the person of a minor whose father is living and reliance was placed upon the decision of the Privy Council in Mrs. Annie Besant v. G. Narayaniah (AIR 1914 PC 41) in which it was observed that no order declaring a guardian can be by reason of Section 19 of the Guardians and Wards Act be made during the lifetime of the father unless in the opinion of the court he is unfit to be their guardian.
The section as well as the decision referred to above deal only with the case of appointment of a guardian. The section does not prohibit the court from dealing with the custody of the minor. The proper way in which Section 19 can be reconciled with the personal law of the parties concerned is to hold that while the father should be the guardian of the minor, the custody should be with the grand-mother. As pointed out by Mulla in 'Principles of Mohammedan Law' sixteenth edition at page 325 the father is the primary and natural guardian of his minor children and the right of custody f the mother and the female relations is subject to the supervision of the father which he is entitled to exercise by virtue of his guardianship. The right of Hizmat does not carry with it all the powers which a guardian of the person of a minor has under the Guardians and Wards Act, 1890.
12. There have been several instances where, in such circumstances, the custody has been retained with the mother or the other relations entitled to custody while the father is recognised as the natural guardian. In Kumaraswami v. Rajammal : AIR1957Mad563 it was held that there is an appreciable difference between custody and guardianship which is a more comprehensive and more valuable right than mere custody. An order giving custody of the children to the mother while retaining guardianship in the father would be in the best interests of the children which should be the paramount consideration with the courts. It was found that the father had not been proved to be permanently unfit to be the personal guardian of the children and hence it was held that no other personal guardian can be appointed under Sec. 19 of the Guardians and Wards Act.
But it was observed that it is quite possible to give custody of the minor to the mother. It was stated that this can be done even in a petition by the mother to be appointed personal guardian of the minors where the guardianship is denied to her as the father is not permanently unfit, but where circumstances show that the custody of the minor ought to be entrusted to the mother. It was further observed that it is not necessary that the minors should be already in the custody of the mother in order to continue her custody. Reference was made to the decision of the Bombay High Court in Bai Tara v. Mohanlal Lallubhai, (AIR 1922 Bom 405) where the mother was given custody of a boy of seven as against the father, while not disturbing the father's guardianship, as it was in his interests and for his welfare. Another decision that was referred to was the decision in Saraswati Bai v. Shripad (AIR 1941 Bom 103) where also the mother was given the custody of the minor child as against the father. While not disturbing the father's guardianship. These decisions apply with greater force to the present case where under the Mohammedan law applicable to the parties, the grand-mother is entitled to the custody of the minor child in the absence of the mother.
In Municipalities Act. Ganga Devi v. Narsing Da, (AIR 1935 Lah 25) it was held that the Act is not intended to interfere with the personal law of the minors. In S. Fatima v. A. Mohiuddin, (1968-1 Andh WR 433) while observing that both under the Hindu Law as well as Mohammedan Law, the responsibility of maintaining the minors is that of the father who is the natural guardian of the minor and his right to the guardianship and custody of the minor should not be taken away unless it is found that by his conduct he had made himself unfit. It was held that the interests of the minor is paramount and consideration must be subordinate to it. That was a case of a Mohammedan minor girl who had attained puberty and therefore even under the personal law, the father was entitled to custody, but it was held that in the circumstances of the case the grand-mother should be given the custody of the minor. The minor's views also were taken into account. This case stands on a higher footing as the minor has not attained puberty and under Mohammedan Law the grand-mother is entitled to the custody of the minor.
Further, we also directed the minor to be brought before us. We found that she was not even aware of the existence of her father and was throughout referring to her maternal grand-mother and grand-father as mother and father respectively. Though she was too young to express her own views, it was quite clear that she felt at home with her grand parents and would find herself an absolute stranger in the house of the father. At such a tender age we feel it is not desirable that the custody of the minor should be shifted from the grand parents who have brought her up all these years, to the father, whom she does not know at all.
13. Strong reliance was placed by the learned counsel for the respondent on Municipalities Act. Siddiquinnisa v. Nizamuddin (AIR 1932 All 215) where it was held that Section 19 ousts jurisdiction of the court altogether and prevents it from appointing any one else as the guardian when the father is alive. It was further held that Section 19 overrides personal law and mere fact that a female relation is entitled to the custody or care of minor girl upto certain age would not result in the father not being guardian of the child. In our view, this is not an authority for the proposition that the custody of the minor child cannot be given to the person entitled to it under any circumstances. The decision is only to the effect that any person other than father cannot be appointed as a guardian unless he is found to be unfit.
It is true that the court also decided in that case that the maternal grand-mother should not be given the custody, but that decision was based on the ground that the minor had been brought by the maternal grand-mother from the residence of the father and she was under the care of the maternal grand-mother with the permission of the father and not by virtue of any right which the grand-mother could claim. The hizanat accordingly terminated according to one of the Judges, Sulaiman, J. According to the other Judge Sen J., as the father took the girl to the maternal grand-mother and put the girl into her possession, it did not confer upon her the right of hizanat and the maternal grand-mother became the custodian of the girl by the leave and license of the father and the father was entitled to put an end to this constructive custody and to claim restoration of the girl to him as the legal guardian under the Mohammedan Law.
It was further observed that the right to custody was put an end to because the female relative lived at a distance from the father. We are unable to appreciate how a person who has not a right to the custody of the minor would lose it merely because in the first instance, she obtained the custody with the permission of the father. The decision may, however, be supported on the ground that under the Mohammedan Law itself she lost the right to custody because she was living at a great distance from the residence of the father. At any rate we are unable to read the decision as an authority for the proposition that a female relation who is entitled to custody of the minor under the Mohammedan Law cannot be given custody or allowed to retain custody when the father is living.
14. Another decision relied on is the decision in Rafiq v. Smt. Bashiran, (AIR 1963 Raj 289) where it was held that where the father of a Mohammedan minor girl is living and there is nothing to show that he is unfit to be the guardian of the minor he is entitled to retain the custody of the minor and the maternal aunt of the mother of the minor cannot be given custody of the minor on the ground that under Mohammedan Law she has a preferential right to the custody of the minor. We respectfully disagree with this decision.
The learned Judge arrived at the above conclusion in view of Section 19 of the Guardians and Wards Act but as we have already observed Section 19 precludes only the appointment of another as guardian when the father is living, but it does not prevent the custody being entrusted to another person while retaining guardianship of the father. We prefer to follow the procedure adopted in Kumaraswami v. Rajammal : AIR1957Mad563 which itself is based upon a similar procedure adopted in the decision of the Bombay High Court referred to therein and direct that the minor should be retained in the custody of the maternal grand-mother.
15. We have till nor proceeded on the footing that the guardianship of the minor is different from custody and Section 19 of the Guardians and Wards Act prohibits the appointment only of a guardian when the father is living and is not unfit to be a guardian and does not preclude the court from giving directions as to the custody of the minor. It is possible to make a slightly different approach in the matter. The guardianship of a person referred to in Muslim texts 'hizanat' also 'Hadanat' or custody. Vide Tyabji on Muslim Law, Fourth Edition Art. 233, under Hanafi Law the mother is entitled to the custody of a male child until he attains the age of seven years and of a female child upto puberty. In the absence of or disqualification of the mother, the custody of the child during the ages mentioned above belongs to the mother's mother, father's mother etc., in order of priority. Even under the Guardians and Wards Act, guardian is defined as a person having the care of the person of a minor or of his property, or of both his person and property.
Thus, the right of guardianship includes the right to custody of the minor. Section 19 of the Constitution provides inter alia that the Court shall not appoint or declare a guardian of the person of a minor whose father is living and is not unfit to be guardian of the person of the minor. The expression 'guardian' in Section 19 of the Act can also be interpreted as to include the right to custody of a minor. Giving this meaning to the word 'guardian' Section 19 can be understood as saying if a father is unfit to be the guardian of the person generally, a guardian of the person can be appointed. If he is unfit to have the custody of the minor then the court can declare a person as a guardian of the minor in a limited sense, namely, that he will have the custody of the minor. The expression 'unfit to be a guardian' has to be interpreted as also to include the case where a father is legally incapable of being a guardian.
In this case, under Mohammedan Law, he is legally incapable of having the custody of the minor child as she has not attained puberty. Therefore, he can be said to be unfit to be a guardian of the person of the minor in the limited sense of being unfit to have the right to the custody of the minor, though he may as we have already held, be not unfit to be a guardian of the person in the general sense of the term. Construing Section 19 thus and interpreting the expression 'guardian' in the above manner, the conclusion would be that as the father is unfit to be the guardian of the person of the minor in the limited sense of 'being unfit in law to have the custody of the minor', Section 19 does not preclude the court from appointing and declaring the grand-mother in this case as the guardian in the limited sense as the person having the right to custody of the minor.
16. The appeal is allowed to this extent. The petition in so for as it seeks to appoint the petitioner as guardian is dismissed, but it is ordered in so far as it seeks permission to retain custody of the minor.
17. We direct that each party should bear his or her own costs throughout.
18. Appeal partly allowed.