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 19th January 1944. After his death, Mt. Haliman Khatun, on 1st 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, 12th 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, 3rd 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.'
4. Amir Ali states the rule to the same effect at p. 300, volume II and quotes Radd-ul-Muhtar as saying
the right of hizanat is lost by the mother marrying a ghair-mahram of the infant, that is, one not related to the infant within the prohibited degrees, for a stranger would not be agreeable to her bringing up the child with affection and care.
5. In Hedaya the origin of the rule is also mentioned. According to it the rule is based upon a tradition of the prophet according to which he is said to have told a woman who asked about the custody of her child that she was to have it as against the father of the child provided she did not marry a stranger.
6. Now a 'stranger' referred to in the textbooks means, as clearly stated in Radd-ul-Mu'htar, a 'ghair.mahram' of the infant i.e., one not related to the infant within the prohibited degrees. The rule about prohibited degrees relates to the law of marriage. Under that rule, a man is prohibited from marrying certain female relations; so also a female is prohibited from marrying certain male relations. It cannot possibly apply when both the parties are of the same sex. The rule therefore that the mother loses her right of hizanat on marrying a person not within the prohibited degrees of the minor may be said not to apply, upon its very terms, when the minor is male because there can be no question of prohibited degrees between the male minor and the husband of the mother. There is another rule which may throw light on the subject and it is that no male has a right to the custody of a female child unless he is a mahram, that is, stands to her within the prohibited degrees of relationship and cannot under any circumstance marry her. (Ameer Ali's Mohammedan Law, 4th Edn. p. 298.)
7. It may be observed that the husband of the mother may marry the female minor provided he divorces the mother before- the consummation of marriage or separates himself from the mother before the consummation of marriage with her. (Ameer Ali's Mohammedan Law, vol. II, p. 449.) It is quite possible that the basis of both the rules (1) that a male is not entitled to the custody of a female minor when he is not related to her within the prohibited degrees and (2) that female is not entitled to the custody of her child when she has married a person who is not related to the female child within the prohibited degrees, are based upon the same foundation, namely, that it is improper to entrust the custody of a female minor where there is a possibility of the guardian, or the husband of the guardian, marrying the female minor. It is true that the minor is described as a child in the rule under discussion and a child may be both a female or a male and it is further true that the reason for the rule is stated by the commentators to be lack of affection and care when the mother marries a stranger. But it may be that regard being had to the tradition associated with the Prophet from which the rule has been derived and to the language of the rule itself as laid down by commentators, it is very doubtful if the rule was meant to apply to a male child. However that may be, it is not necessary for us to decide this question finally in this case as we find that in the present case Zohra Khatun who has been appointed the guardian of the minor has herself married a stranger. She cannot, therefore, have any preferential right over the mother, Ahmadi Begam's application having been dismissed and she having submitted to the order of the lower Court we need not consider her case. As between the two Musammat Haliman Khatun, the mother and Zohra Khatun, the paternal aunt,-the mother is certainly a better person. She has natural affection. Her natural affection for her son cannot be excelled by anybody else.
8. It is urged that even if Zohra Khatun has lost her right, the appellant having lost her right, can, in no case, be appointed as the guardian of the person of her minor son and that therefore her appeal must be dismissed. Reliance has been placed upon a ruling of this Court reported in Mt. Kundan Begam v. Mt. Aisha Begam : AIR1939All15 . In that case there was a contest about the guardianship of a female minor aged sixteen between her mother and her grandmother. The girl was quite unwilling to go and live with her mother. Harries and Misra, JJ. held that in view of the fact that the mother had married a stranger i.e., a person not within the prohibited degrees of the female minor she was disentitled to be appointed the guardian of the minor. They further observed that under Section 17 the Court had no power to subordinate the law to which the minor was subject to the consideration of what would be for the minor's welfare. This case was considered by the present Chief Justice in a later case reported in Mt. Samiunnissa v. Mt. Saida Khatun A.I.R. (31.) 1944 ALL. 202. We agree with the following observations of his Lordship:
There can be no doubt that Section 17, Guardians and Wards Act does apply to Muslims, and it is open to the Court to appoint a stranger as guardian to the person of a minor, the guardian so appointed not being a guardian under the Mohammedan Law, if no guardian under the Mohammedan Law is forthcoming or is available. The mother may have lost her right to guardianship under the Mohammedan law but she cannot be in a worse position than a stranger and I cannot find any provision under the Mohammedan Law which forbids her appointment as a guardian, it the Court cannot find a more suitable person. Strictly speaking, under the Mohammedan law the mother is not a natural guardian at all, (see Imambandi v. Mutsaddi A.I.R. (5) 1918 P.C. 11. She has merely the right of hizanat, custody of the child, up to a certain age according to the sex of the child. To my mind if the Court, keeping in view the welfare of the minor, considers that the mother should be appointed a guardian in preference to any other natural guardian under the Mohammedan Law, the order passed cannot be challenged on the ground that the Court had no power to do it. Though, as I have already stated, the Court should make an attempt, so far as possible, to follow the line of guardianship fixed under the personal law of a minor, I am not prepared to hold that they must subordinate the welfare of the minor and must, whatever the consequence, appoint the natural guardian under the personal law.
A comparison of Section 17 which applies to the present case and Section 19, Guardians and Wards Act will bear this out. Under Section 19, the Court has no jurisdiction to appoint as guardian, anybody other than the persons mentioned therein, unless such persons are unfit to be appointed as such. The language of Section 17, however, is different. It gives a much wider discretion to the Court and whenever the Court is of the opinion, consistently of course, with the law to which the minor is subject, that it is for the welfare of the minor that certain person should be appointed guardian the Court can exercise its jurisdiction and appoint such a person as the guardian.
9. The true rule in our opinion under Section 17, Guardians and Wards Act may be stated thus- One has to see who out of several applicants has a preferential right to be appointed a guardian of the minor under the personal law of the minor. If that person is unfit to be appointed as guardian, he will not be appointed. Even though that person may not be unfit to be appointed as guardian, yet if there are weighty considerations against his appointment in comparison to another person, he will not be appointed as guardian and the other person will be appointed as guardian. But, if the considerations are not very weighty and there is merely a slight preference in favour of that other person, the guardian, pointed out by the personal law of the minor, should be preferred. If, however, one of the persona applying for guardianship is a guardian under the personal law, the Court can appoint any one who appears to be most suitable as the guardian of the minor.
10. It has not been shown that Mt. Haliman Khatun is, in any way, unfit to be the guardian of her minor son. The learned Judge has mentioned two facts against her and in favour of Zohra Khatun - one is that Zohra Khatun'a husband is working under Dildar Khan, grandfather of the minor, and that Dildar Khan has a flourishing tailoring business. Dildar Khan may have a flourishing tailoring business but he is not being appointed guardian of the minor. His flourishing tailoring business is wholly an irrelevant consideration. Zohra Khatun's husband after all is merely a servant. Ahmad Husain, the second husband of Mat. Haliman Khatun, is a mechanic by profession. There is nothing to show that Zohra Khatun's husband is in a bettar financial position than Ahmad Husain. The other point mentioned by the learned Judge is that Musammat. Haliman Khatun will have children from her new husband who may not extend the same affection towards the minor as he would naturally extend towards his own sons. This would equally apply to Zohra Khatun.
11. We, therefore, allow this appeal, set aside the order of the lower Court and appoint Musammat Haliman Khatun as the guardian of the person of the minor Mohammad Ayub. The parties will bear their own costs of these proceedings. This order will also govern the connected appeals Nos. 166 and 167 of 1946.