1. This is an appeal against the order passed by the learned District Judge of Bulandshahr under the Guardians and Wards Act (Act 8 of 1890). The appellant Mt. Samiunnissa applied that she be appointed guardian of the person of the minor Rashida Khatun, who at the time of the application in the year 1941 was a girl ten years old. The application was opposed by the mother of the minor Mt. Saida Kha-toon. During the pendency of the contest between the mother and the grandmother of the minor, Sayeed Ahmad brother of the appellant filed an application on 3rd August 1941 supporting the application of Mt. Samiunnissa for guardianship and praying in the alternative that in case the Court was not willing to appoint Mt. Samiunnissa the Court may appoint him, Sayeed Ahmad, as the guardian. The learned District Judge by an order dated 30th August 1941 appointed the mother as guardian of the person of the minor and directed that the mother should make proper arrangements for secular and religious education of the minor and submit a report to the Court on these points from time to time, and further passed an order that she or her husband Abdul Aziz should not arrange the marriage of the minor without the Court's permission. Sayeed Ahmad has taken no further interest in the proceedings and is not represented before me. The grandmother Mt. Samiunnissa, however, objects to the order passed by the learned District Judge and claims that she should have been appointed the guardian of the minor. Saida Khatoon, the mother of the minor, was known as Daisy Lal and was married to a Christian. On the death of her husband she embraced Islam and assumed the name of Mt. Saida Khatoon and married Jamil Ahmad, a Syed, who worked as a motor driver. The minor is the daughter of Jamil Ahmad by Mt. Saida Khatoon. Syed Jamil Ahmad died in the year 1933 and in January 1936 Mt. Saida Khatoon married one Abdul Aziz, L.M.S., medical practitioner, Bulandshahr. Abdul Aziz is not related within the prohibited degrees to the minor, and under the Mahomedan law, on Mt. Saida Khatoon's remarriage with Abdul Aziz, who was a person not related within the prohibited degrees, she, Mt. Saida Khatoon, lost her right to guardianship and under the Mahomedan law Mt. Samiunnissa, the grandmother of the minor became entitled to the guardianship. The learned Counsel for the appellant, therefore, urges that the learned District Judge had no right to appoint Mt. Saida Khatoon as the guardian of the minor and he was bound to act according to the personal law of the minor and appoint the appellant Mt. Samiunnissa. Great reliance is placed on behalf of the appellant on Section 17, Clause (1), Guardians and Wards Act and the interpretation put on that section by a Bench of this Court in Kundan v. Aisha Begam : AIR1939All15 . Section 17, Clause (1), Guardians and Wards Act reads as follows:
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.
The learned Counsel for the appellant argues that the Court can, therefore, consider the welfare of the minor and appoint a guardian consistently with the law to which the minor is subject, and the personal law can, therefore, not be disregarded by the Court and must be obeyed. Reliance is placed, as I have already said, on a Division Bench ruling of this Court reported in Kundan v. Aisha Begam : AIR1939All15 . In that case a minor Muslim girl was living with her grandmother who before she had married was a prostitute, and after she became a widow she again went back to her former life and was living with some of her female relation who were still carrying on the profession of prostitution. The mother to have the child removed from such surroundings applied that she should be appointed the guardian of the minor. Her application was opposed on the ground that the mother, since she had married a second husband who was not related within the prohibited degrees to the minor was not entitled to guardianship under the Mahomedan law. Considering, however, all the circumstances of the case the learned District Judge of Moradabad had held that keeping in view the welfare of the minor, the mother should be appointed the guardian of the minor and not the grandmother who had during the pendency of the application of the mother also applied to be appointed a guardian. The grandmother appealed to this Court and a Bench of this Court held that as the mother had remarried and to a person who was not related within the prohibited degrees to the minor, the mother could not, consistently with the Mahomedan law which governed the parties, be appointed guardian of the minor, and as the grandmother was also an undesirable person to be put in charge of the minor girl, they held that the grandmother also could not be appointed guardian of the minor, and on the ground that the minor was aged about 17 and would soon become a major the Court decided not to appoint either the mother or the grandmother as guardian. The result of that decision must be that the choice was left to the minor to choose whether she would live with her mother or with her grandmother, the Court taking no responsibility in the matter.
2. If that case stood by itself, as it is a Division Bench ruling, I would be bound by it. With due respect to the learned Judges who decided that case I do not find it possible to accept their view. So far as I have been able to understand Section 17, Guardians and Wards Act, the primary consideration for a Court, which has to deal with the question of guardianship of the minor, is the welfare of the minor. In considering what is for the welfare of the minor, the Court will act consistently with the personal law governing the minor. To illustrate this matter further with reference to the facts of this case the proper approach will be to see who is the guardian under the Mahomedan law, and in this case the guardian under the Mahomedan law being the grandmother, the Court will generally appoint the grandmother unless there were such overriding considerations which compelled the Court to appoint somebody else. In the case reported in Kundan v. Aisha Begam : AIR1939All15 , the Court being definitely of the opinion that the grandmother, who was the guardian under the Mahomedan law was not the proper guardian I think the Court was not debarred by any provision contained in the Mahomedan law from appointing the mother merely because she had remarried outside the prohibited degrees. 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 Mahomedan law, if no guardian under the Mahomedan law is forthcoming or is available. The mother may have lost, her right to guardianship under the Mahomedan law but she cannot be in a worse position than a stranger, and I cannot find any provision under the Mahomedan law which forbids her appointment as guardian, if the Court cannot find a more suitable person. Strictly speaking, under the Mahomedan law, the mother is not a natural guardian at all : see Imambandi v Mutsaddi ('18) 5 A.I.R. 1918 P.C. 11. She has merely the right of htzanat, 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 Mahomedan 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 Courts 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.
3. The learned Counsel for the appellant has relied on two other cases. One is reported in Ansar Ahmad v. Samidan ('28) 15 A.I.R. 1928 Oudh 220. In that case the mother had remarried without the prohibited degrees and Pullan J. remanded the case to the District Judge to find out whether a suitable guardian under the Mahomedan law was available and willing to accept the guardianship. This view of the law is not in conflict with the view that I hold, as, to my mind, where a suitable guardian is available he or she should be appointed and not a disqualified person under the Mahomedan law. This case does not go further to hold that where there is no suitable person even then the mother should not be appointed a guardian because she has remarried. The other case relied on is Mt. Mehraj Begum v. Yar Mohammad ('32) 19 A.I.R. 1932 Lah. 493, a judgment of Abdul Qadir J. of the Lahore High Court. In that case the conflict was between the mother and the grandfather and the Court held that the grandfather should be appointed the guardian. There are certain observations in that judgment approving of the observations of Mr. Wilson in his well known commentary on Mahomedan law, that it was not possible to subordinate the law to which the minor is subject to the consideration of what will be for his or her welfare.
4. It must be borne in mind that the Court appointing a guardian to a minor does so under Section 17, Guardians and Wards Act, and not under the personal law to which the minor is subject. Section 37, Bengal, Agra and Assam Civil Courts Act, 12 of 1887, lays down that, 'regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Mahomedan law, in cases where the parties are Mahomedans, and the Hindu law, in cases where the parties are Hindus, shall form the rule of decision.' It will be noticed that the appointment of a guardian is not one of the matters included in that section. Section 17, Guardians and Wards Act no doubt lays down that the Court shall, consistently with the law to which the minor is subject, appoint a guardian for the welfare of the minor. The primary consideration, to my mind, is the welfare of the minor, but the appointment has to be made consistently with the law to which the minor is subject. I can find nothing in the Mahomedan law which makes the appointment of a mother under circumstances in which a stranger can be appointed a guardian inconsistent with any provision of the Mahomedan law. I have looked through Ch. 14, Vol. 1 of Hamilton's Hedaya relating to hizanit or the care of infant children. That seems to be the only place where the question of the custody of the minor has been dealt with. 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 relations 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.
5. As I have already said I do not think that the mother who has remarried can be placed in a worse position than a stranger to the minor, and the mother can surely be appointed a guardian under circumstances under which a stranger can be so appointed. The learned Counsel for the respondent has relied on the case reported in Bindo v. Sham Lal ('07) 29 All. 210. That was a case in which the conflict was between the grandmother and the father of a minor. The father was the natural guardian under the Hindu law, but the Court was of the opinion that it was for the welfare of the minor that the grandmother be appointed the guardian, and the Court appointed the grandmother in preference to the father. The other case relied on by Mr. Seth is Tota Ram v. Ram Charan ('11) 33 All. 222. That was a case of a minor Hindu widow whose guardian under the Hindu law after the death of her husband was her husband's kinsman but the Court held that in view of the welfare of the minor the father of the minor should be appointed in preference to the kinsman of the husband. The next case relied on is Siddiqunnisaa Bibi v. Nizamuddin Khan : AIR1932All215 . The parties to that case were Muslims, and the case was decided by Sir Shah Mohammad Sulaiman, then Acting Chief Justice, and if I may say so with respect I entirely agree with the view of law expressed by him at p. 131 of the Reports which reads as follows:
There can be no doubt that so far as the power to appoint and declare 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 that 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.
In Ma Juli v. Moola ('33) 20 A.I.R. 1933 Rang. 201 a Bench of the Rangoon High Court refused to appoint a Mahomedan father as guardian of his female child and held that Section 17, Guardians and Wards Act, did not take the discretion of the Court to consider what was primarily for the welfare of the minor. A comparison of Section 17 with Section 19, Guardians and Wards Act, shows that under Section 19 certain persons mentioned in that section had to be appointed guardian unless they were in the opinion of the Court unfit to be so appointed. Section 17, to my mind, has to be read entirely different from Section 19, and it cannot be interpreted in the sense that unless the guardian under the personal law is unfit to be appointed a guardian of the minor the Court is bound to appoint him. To my mind, Section 17 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 is for the welfare of the minor that a certain person should be appointed guardian, the Court can exercise its jurisdiction and appoint such a person as the guardian.
6. In my view, therefore, the correct approach to this case was that the Court should first try to consider whether the grandmother who was the guardian under the Mahomedan law should be appointed the guardian of the minor. In case the Court was of the opinion that the grounds against the appointment of the grandmother, in the interest of the welfare of the minor, were so weighty that the grandmother should not be appointed the guardian of the minor, then the Court should try to appoint other suitable person, and if the Court was of opinion that the mother of the minor who was married without the prohibited degrees was the only person who could in view of the circumstances be given the custody of the minor, then the Court should not hesitate to pass an order to that effect. The Court in this case has held that the grandmother is a destitute and she has got no means of supporting the minor. Further she is illiterate and has never taken any interest in this minor who is now aged about 14 years. The mother of the girl is a nurse and she therefore must have received some education. The girl lived all her life with her and her ways must be entirely different from the ways of this old lady. In view of these and other circumstances mentioned by the learned District judge in his order under appeal he appointed the mother of the girl as guardian. The learned Counsel for the appellant has not tried to challenge any of the findings of fact recorded by the Court below against the grandmother and in favour of the mother. His argument was entirely based on a question of law that under no circumstances could the mother be appointed guardian, and great reliance was placed by him on the case reported in Kundan v. Aisha Begam : AIR1939All15 . To my mind the fact that the grandmother is a destitute and is living on charity and is not able to maintain the minor is a matter of primary importance, and as the minor has got no property of her own it is not possible to hand over this minor to her grandmother who will not be able to maintain her and is practically a stranger to the minor and whose ways must be entirely different from the ways of the mother with whom the child has been so long brought up. In the view that I take of the law, to my mind, the order passed by the learned District Judge under the circumstances of this case was perfectly right and I therefore dismiss this appeal with costs.