Sulaiman, Actg., C.J.
1. This is an appeal by the maternal grandmother of Musammat Wajida Khatun from an order of the District Judge of Ghazipar directing that she should make over the child who was about seven years old to the respondent, her father. The mother of the girl died a few days after her birth at Sasaram which is the residence of the father, the maternal grandmother is residing in another District at Zamania. The girl was undoutedly allowed to be brought by the grandmother from Sasaram to Zamania and has for these years been maintained and brought up by the appellant. An application was made by the maternal grandmother that she should be appointed the guardian of her parson. Objections were filed by the father, the grand father as well as the paternal grandmother to the appointment of the maternal grandmother as her guardian and there was also a prayer that either of these persons be appointed a guardian of her person. The learned District Judge came to the conclusion that in view of the provisions of Section 19 of the Guardians and Wards Act he had no power to appoint a guardian at all, but he granted a separate application of the father made under Section 25 of the Act for the return of the girl to him. The grandmother has accordingly appealed and challenges the propriety of the order passed.
2. The learned Counsel for the parties have placed before us a large number of rulings which show that there has to some extent been a conflict of opinion on the interpretation of some of the sections of the Act.
3. There can be no doubt that so far as the power to appoint and declare the guradian 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 In such cases the personal law has to this extent been superseded that it is not absolutely binding on the court and can be ignored if the welfare of the minor requires that some one else, even inconsistently with that law,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. Section 19 then provides that
nothing in the chapter shall authorise the court...to appoint or declare a guardian of the person (a) of a minor who is a married female and whose husband is not, in the opinion of the court unfit to be guardian of her person or (b)...of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.
4. The language of the section, as it stands, obviously implies that when any of the three contingencies mentioned in the sub-clauses exists there is no authority in the court to appoint or declare a guardian of the person of the minor at all; that is to say, the jurisdiction of the court conferred upon it by Section 17 to appoint or declare a guardian is ousted where the case is covered by Section 19.
5. The learned Advocate for the respondent has argued before us that the section must be read as if it was meant that nothing shall authorise the court to appoint or declare a guardian of the person of the minor 'other than the husband or the father as the case may be'. This, in my opinion would be interpolating new words into the section which are not there. If an application for appointment of a guardian is made to the court, and it is brought to its notice that the minor has a husband who is alive and is not unfit to be the guardian of the minor, or that he or she has a father who is living and is not unfit to be the guardian of the person of the minor then there is no authority in the court to appoint or declare a guardian of the person of the minor. The section means not only that in the presence of the husband or the father no one else should be given preference, when either of them is fit to be appointed the guardian, but on its language, it even ousts the jurisdiction of the court altogether and prevents it from appointing even the husband or the father as a guardian when both of them are not unfit to be the guardian. The Legislature apparently did not intend to settle the competition that may arise under the personal law governing the minor between the husband and the father of the minor. In the same way no appointment or declaration of a guardian can be made when the property of the minor is under the superintendence of a Court of Wards which is competent to appoint a guardian of the person of the minor. This, in my opinion, is the plain meaning deduced from the language of the section as it stands. The learned Advocate for the respondent has argued that by enacting Section 19 the Legislature intended to declare that the husband is the guardian of the married female minor and after him her father, and therefore, the section does not prohibit their being appointed or declared to be the guardian. In my opinion the Legislature intended that nobody should be appointed or declared the guardian at all when the husband and the father are alive and both of them are not unfit without attempting to settle the competition between them which may arise under the personal law. There is no justification for interpreting the section as if it is confined only to the appointment or declaration of a guardian other than the husband or the father.
6. This conclusion though possibly not for the same reason, has been arrived at in several cases of which mention may be made of the case of Sukhdeo Rai v Ram Chandra Rai 83 Ind. Cas. 24 : 46 A. 706 : 22 A.L.J. 680 : 10 O. & A.L.R. 803 : A.I.R. 1924 All. 622 : L.R. 5 A. 417 Civ. It may also be pointed out that in the case of Annie Besant v. Narayaniah 24 Ind. Cas. 290 : 38 M. 807 : 27 M.L.J. 30 : 18 C.W.N. 1080 : 1 L.W. 520 : (1914) M.W.N. 585 : 16 M.L.T. 165 : 20 C.L.J. 253 : 16 Bom. L.R. 625 : 12 A.L.J. 1155 : 41 I.A. 314 (P.C.) their Lordships of the Privy Council remarked. 'And further no order declaring a guardian could by reason of the 19th section of the Guardian and Wards Act, 1880, be made during the respondent's life unless in the opinion of the court he was unfit to be their guardian which was clearly not the case.' It is not necessary to refer to cases which have taken a contrary view. But it can be briefly stated that the same view has been expressed in Oudh and at Madras.
7. The learned Advocate for the respondent has argued that the personal law of the minor has been completely abrogated and superseded by the Guardians and Wards Act for all purposes. He has further urged that there is no right of suit for obtaining custody of the minor independently of this Act. He has relied on a passage in the judgment of their Lordships of the Privy Council in the case quoted above. On the other hand in another case the Bombay High Court has expressed the view that where no application can be made by father under the Guardians and Wards Act he may maintain a regular suit. It is not necessary to express any opinion on this point.
8. The personal law has been abrogated to the extent laid down in the Act. Where however, the personal law is not in conflict with any provision of the Act, I would not be prepared to hold that it has necessarily been superseded.
9. It is urged before us that the husband and the father are the natural guardians of the minor child and are always entitled to apply under Section 25 as against the mother or other relations. Section 25 provides that if a ward 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. The necessary condition for the exercise of the discretion given by Section 25 is that the ward should have left or have been removed from the custody of the guardian of his person. If the ward has not left or has not been removed from such custody, it is difficult to see how the section would apply. At the same time it must be conceded that the custody need not be the actual physical custody of the minor and may even be a constructive custody of the guardian. This view was expressed by Lindsay, J., in the case of Mushaf Husain v. Mohammad Jawad 48 Ind. Cas. 60 : 21 O.C. 194 : 5 C.L.J. 616, and has been followed by other courts also except perhaps in Bombay. There is no reason to restrict the meaning of the word 'custody' to the physical or actual custody of the minor. Even if the ward is in the actual custody of another person with the permission of the guardian, he or she would be under the guardian's constructive custody. Section 25(3) indicates that the residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship. Accordingly the constructive guardianship will continue.
10. At the same time I would not be prepared to hold that if under the personal law governing the minor she is for the time being in the custody of the de jure guardian, the court has full power to remove the child from that custody and place it in the custody of another person who may also come within the definition of the expression 'guardian of the person' though not, only appointed or declared by the court. In my opinion in such a case the ward cannot be said to have left or have been removed from the custody of a guardian.
11. Under the Muhammad an Law a minor wife has the option of repudiating the marriage on attaining puberty. Dr. Katju has contended before us that the Legislature by enacting Section 19 has laid down that the husband and after him the father is the natural guardian of a female minor and has superseded the personal law. I do not think that this is the result of the section. If she were living with her female relation who is entitled under the Muhammadan Law to the custody of her person, I would be loath to hold that the district Judge would have power to direct that she should be handed over to her husband.
12. A question has been raised before us whether the right under the Muhammadan Law of the female relation of a minor girl under the age of puberty to the custody of the person of the girl is identical with the guardianship of the person of the minor or whether it is something different and distinct. The right to the custody of such a minor vested in her female relations, is not absolute and is subject to several conditions including the absence of residing at a distance from the father's place of residence and want of taking proper care of the child. It is also clear that the supervision of the child by the father continues in spite of the fact that she is under the care of her female relation as the burden of providing maintenance for the child rests exclusively on the father. Mr. Ameer Ali in his Treatise on the Muhammadan Law Vol. II, page 587 (3rd Edition), noted that the first and primary natural guardian of a minor. In Imambandi v. Mutsaddi Mal 47 Ind. Cas. 513 : 45 I.A. 73 at p. 83 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330, 28 C.L.J. 409 : 23 C.W.N. 50 : 5 P.L.W. 276 : 20 Bom. L.R. 1022 : 45 C. 878 : (1919) M.W.N. 91 : 9 L.W. 518 (P.C.), their Lordships of the Privy Council in reviewing the provisions and principles of the Muhammadan Law remarked. It is perfectly clear that under the Muhammadan Law the mother is entitled only to the custody of the person of the minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or if he be dead, his executor (under the Sunni Law) is the legal guardian.' It would therefore seem to follow that the mere fact that a female relation is entitled to the custody or care of the minor girl up to a certain age would not result in the father not being the guardian of the child.
13. Under the Guardians and Wards Act, however, the word 'guardian' has been defined as meaning a person having the care of the person of a minor or of his property, or of both his person and property. Thus the word 'guardian' is used in a very wide sense and does not necessarily mean a guardian duly appointed or declared by the court. Any person who has the care of the person of the minor is a guardian of the person and any person who has the care of the property of the minor is a guardian of the property within the meaning of this Act. I would accordingly feel inclined to hold that if a female relation is under the Muhammadan Law entitled to the custody of the minor and is not disqualified in any way and the minor is actually in her custody it cannot be said that she has left or has been removed from the custody of the guardian having care of the person of the minor.
14. In the present case as already pointed out the girl was born at Sasaram which is the residence of the father. She has the father's mother who is living at the place and her father is alive. The learned District Judge has found that the father is not unfit to be her guardian. There was some dispute as to the dower debt of the girl's deceased mother being still due which was alleged by the appellant to amount to Rs. 40,000 in which the minor's share would come to Rs. 20,000. This amount was disputed by the husband, but at the direction of the court the father of the girl has executed a registered document settling property of the value of Rs. 20,000 on the minor girl. There is no longer any apprehension that she would be deprived of this inheritance if she were placed in the custody of her father. On the other hand, it is pointed out by the court below that the maternal grandmother has not got her name entered in the revenue papers in respect of her share in the inheritance left by her deceased mother, but that the grandmother has got her own name entered as against the entire estate and is in possession of it. The girl has attained the age of seven and needs education, and the learned Judge is satisfied that the proper education as desired by the father cannot be had at Zamania which place the grandmother according to her own admission is unwilling to leave. The mere fact that the father has married again is not necessarily a disqualification when he has got his own mother living with him who can take care of the child. We think that it is impossible to hold that the father is unfit to be the guardian of the person of the girl. On the other hand, we are clearly of opinion that, having regard to the necessity of her being educated properly, it is for the benefit of the minor that she should be under the direction and control of her own father.
15. Any right which the material grand mother may have claimed under the Muhammadan Law disappeared when the girl was brought over from Sasaram which is the place of the residence of the father. From that moment she was under the care of the maternal grandmother with the permission of the father and not by virtue of any right which the grandmother could claim under the personal law. The Hizanat accordingly terminated and the next person who would be entitled to the custody of the person of the minor would be the paternal grandmother, who has joined in this application with the father and is living with him. It is therefore, impossible to hold that the District Judge had no jurisdiction to proceed under Section 25 of the Guardians and Wards Act. The custody of the girl with the grandmother was in law a constructive custody of the father with whose consent and permission she had so far been living at Zamania. When the father, served a notice upon the maternal grandmother that the child should be delivered to him and followed it up by this application, the permission was revoked as it was obviously revokable. The refusal of the grandmother to hand over the child amounted to a removal from the constructive custody of the father. In these circumstances Section 25 applies and the order of the court below was not without jurisdiction.
16. I fully agree with the judgment delivered by the Hon'ble the Acting Chief Justice. The facts which have given rise to this appeal have been dealt with very fully by my learned colleague and need not be recapitulated. The weight of authority is in favour of the propositions, that under Section 19 of the Guardians and Wards Act the learned District Judge had no jurisdiction to appoint or declare the father of the minor as her guardian and that the maternal grand-mother could not be appointed her guardian where the father of the minor was living and was not unfit to be the guardian, Section 19 of the Guardians and Wards Act over-rides the provisions of Section 17. Under the Muhammadan Law, the maternal grand mother is not the guardian of the person of the minor grand-daughter. She has the right of Hizanat till the girl attains puberty, but Hizanat is not the same thing as guardianship of the person. The guardianship of the person rests in the father Musammat Siddiqunnissa Bibi the maternal-grand mother is not the resident of Sasaram the place where the parents of the minor lived. Upon the death of the mother, the father took the girl to Zamania where the maternal grand-mother lived and put the girl into the possession and custody of the latter. This did not confer upon her the right of Hizanat. On the other hand, she became the custodian of the girl by the leave and license of the father. Possession or custody may be either actual or constructive. The possession of the minor by the maternal grand-mother under the circumstances disclosed by this case was clearly constructive. The father therefore, 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 Muhammadan Law. Moreover the father has, under the Muhammadan Law, the right to put an end to the Hizanat exercised by a female relative where the latter lived at a distance from the residence of the father with the result that it was not practicable for the father to exercise the rights of supervision and care over the minor. Although the father has not been appointed or declared the guardian under Act VIII of 1890 the definition of the term 'guardian' in Section 4 Sub-clause (2) is sufficiently wide to include a Muhammadan father who has the right of supervision over his minor daughter for the ends of her welfare. The father was, therefore, the 'guardian' within the fold of Section 25 of the Act and could thus maintain an application for recovery of the custody of the minor from the maternal grand-mother, I would therefore, dismiss the appeal with costs.
17. By the Court.--The appeal is dismissed with costs.