Prithvi Raj, J.
(1) This Letter Patent Appeal is filed against the judgment dated November 2, 1970 passed by a learned single Judge of this Court whereby the learned Judge dismissed the appeal filed by the appellant against the order dated 2nd April, 1970 passed by the District Judge, Delhi directing the appellant to cause the custody of the minor Master Shuja to be given to the respondent. Before the learned single Judge, amongst other contentions, the two contentions raised were that respondent had re-married and had children from his second wife ; that from the time of its birth, the child has not even been seen by the father; that under the circumstances the respondent could not be expected to have any love or affection for the child and that it is in the interest and for the welfare of the minor that its mother's mother should continue to have the custody of the minor as the minor was being maintained by Shrimati Kidwai, maternal grandmother whose husband was the Indian Ambassador in Syria. The learned single Judge observed that 'these considerations cannot over-ride the consideration of the interest and welfare of the child, which has not been shown to be in danger of being adversely affected if the respondent-father is given its custody. The child's welfare, thereforee, undoubtedly lies in its being placed in the custody of the respondent.' With the above observations and taking the view that the mother disentitled herself to the custody of the child on her re-marriage, the learned single Judge confirmed the judgment of the District Judge and dismissed the appeal of the appellant.
(2) The admitted facts in the appeal are that the minor Master Shuja who is reported to be of 6 years and one month of age, was born out of the wedlock of the parties. The parties, after their marriage, for certain reasons, which for the purposes of this appeal need not be recapitulated, could not live in harmony and eventually divorced each other. It is also admitted by the parties that after they had divorced each other, both of them re- married and they have children from their second marriage. The case of the appellant is that eversince the minor Master Shuja was born, his father, the respondent had not cared to see and look after the child who has all along been brought up by his grand-mother Shrimati Kidwai. That being so the respondent who has re-married is not expected to have love and affection for the child and that it would not be in the interest of the child that the custody be given to the respondent. The appellant has further urged that the respondent did not pay anything towards the maintenance of the minor and that she had to take proceedings for the recovery of maintenance in the Court of Shri R. L. Gupta, Sub Judge 1st Class, Delhi in which suit the respondent by a compromise decree agreed to pay Rs. 200.00 per month w.e.f. 1st May, 1966 towards the maintenance of the minor. The said amount was agreed to be paid by the respondent till the minor attains the age of 7 years by the 25th of October, 1972. It was also submitted that despite the aforesaid compromise decree, the respondent has not paid anything towards the maintenance of the minor and has neither cared to show love and affection to the minor. It was accordingly contended that it would not be in the interest of the minor to snatch him from his present environments where he is happily settled. The minor being a child of tender age. it was argued that he would not be psychologically able to adjust himself in the altogether new rather alien environments if his custody is given to the respondent. Mr. Bhagwat Dayal, the learned counsel for the respondent submitted that the minor is deliberately being kept out of the way of the respondent and if the minor does not recognise the respondent and that the present estrangement if it be said so, which prevails between the respondent-father and the minor, it is all due to the appellant who has denied the opportunity to the respondent to see and have access to the minor. In this connection the learned counsel for the respondent referred to a copy of the notice dated 26th July, 1967, Ex. P 1, sent by the counsel for the respondent to the appellant requesting her to fix some date, time and place convenient to her to enable the respondent to pay a visit to meet and see the minor. Further it was stated that the appellant and her parents even did not allow the minor to adopt the family name of the father as is evident from Ex. Public Witness 2/1, a copy of the application submitted by the grand-father of the minor Shri Kidwai, asking that the name of the minor be included in the passport of his wife as the minor was proposed to be taken out of the country and in the said application the name of the minor has been stated as Ali Shuja Kidwai although Kidwai does not happen to be the surname of the minor as the said Surname is the name of the grand-father.
(3) For the purposes of this appeal, we need not go into the relative allegations of the parties as the matter can be disposed of on the point of law.
(4) According to Tyabji's Muslim Law, fourth edition. Section 238 at page 216 provides that under Hanafl law the mother is entitled to the custody of a male child until he attains the age of seven years; and under Section 257 (at page 227) the mother does not, on being divorced, lose her right (under Section 238) to the custody of her children, unless she marries a second husband who is not related to the minor within the prohibited degree on so marrying she loses her preferential right, and the father becomes entitled to the custody of the children whatever be their age.
(5) Baillie, in his book 'A Digest of Moohummudan Law' in Chapter Iv (at page 435) says that the mother is, of all persons, the best entitled to the custody of her infant child during marriage and after separation from her husband, unless she be an apostate, or wicked, or unworthy to be trusted. Further the author at page 436 has said that when the child has no mother, or none that is entitled and competent to take charge of it, the mother's mother, how high soever, is preferred to all other per- sons but the right of the mother is made void by marriage with stranger. Baillie at page 437-438 says that a mother and grandmother have the best right to the custody of a boy till he is independent of their care; and that is, till he is 7 years old.
(6) Syed Ameer Ali, in his book on 'Mohammedan Law' 6th edition Volume Ii at page 223 says 'the mother is of all persons', says the Fatawai 'Alamgiri', 'the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution'. The learned author has further said that the Mohommedan Law supports the mother's natural right to the custody of her children and allows it to take precedence on the paternal right for a certain specified time, and at page 225 of the above book he has said that among the Hanafis the accepted doctrine is that the mother's hizanat of a male child ends with the completion of his seventh year and that the mother, thereforee, is entitled in preference to the father to the custody of her infant male child under seven years of age. While deducing the principle governing hizanat at pages 225-226 Syed Ameer Ali, has said, 'it will be seen that, though the period of hizanat varies among the different schools, the general principle, which governs its duration, is founded essentially on the interests of the child.....................It may be stated, as a general rule, that as the right of hizanat has in view the exclusive benefit of the infant, each particular case would be governed by the doctrine in force among the sect to which the child is supposed to belong; or, if that cannot be ascertained, by a consideration of what would be best for the child as a Moslem child and that this rule has been adopted by the Court of Algiers, and no difficulty has been found in its application to individual cases.'
(7) Again in Chapter Xiv of the Hedaya a commentary on The Mussulman Laws by Charles Hamilton at page 138, it is stated that if the separation takes place between a husband and wife who are possessed of an infant child, the right of nursing and keeping it rests with the mother, but at page 139 it is stated that, Kasaf has said that the hizanat with respect to a boy ceases at the end of seven years but the right of hizanat is annulled by her marrying a stranger.
(8) It may also be noted that Mulla in his book 'Principles of Mahomedan Law' 16th Edition at page 324, has said that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.
(9) The principle deducable from the above referred to commentaries is that the right of hizanat is principally founded for the benefit of the child and this right is available to the mother in preference to the father as the mother is most likely to bestow care, love and affection on the child, but this right is available to her only till the child attains the age of 7 years and certainly on her re-marrying a person not related to the child within the prohibited degree, she disentitles herself to this right.
(10) Mr. Latifi, the learned counsel appearing for the appellant vehemently contended that in the changed circumstances of today's society, it would not be expedient and proper to show too much care for the rigid observation of the old dictum and since even in the old dictum the guiding principle was the welfare of the minor as set-out by Syed Ameer Ali in his commentaries on Mohammedan Law as referred to above, the appellant is best entitled to the custody of the minor. At any rate, it was contended, the grandmother of the minor who has all along been bringing up and looking after the minor and with whom the minor is emotionally attached should be allowed to continue to retain the custody of the minor, more so when the grandfather who is holding a high position as an Ambassador in Damascus (Syria) has the means to properly educate and look after the minor. It was further submitted by the learned counsel for the appellant that the mere fact that the appellant had re-married by itself should not constitute a bar to her retaining the custody of the minor as she is a literate lady having graduated from a University in America and is not likely to play as a second fiddle in the hands of her present husband to the detriment of the minor. She being the mother and the step-father who is stated to be holding high office in the Air-Force and has the means to provide for the education and bringing up of the minor, it was submitted, it would be beneficial and in the interest of the minor that the custody of the minor be allowed to be retained by the appellant. We are unable to sustain this contention. The respondent who is the father of the minor has a right to bring-up the minor according to his philosophy and conception of life and in the manner that he, as a father, wants his child to grow-up and be educated so as to occupy and play a proper role in life. This right of the father to educate and bring up his child in the way that he considers best in the interest of the minor as always been conceded by almost all the religions and the mere fact that the step-father of the minor or his grandparents have the means to bring up the minor and educate him properly cannot be made the basis to disentitle the respondent to have the custody of the minor. There is a catena of authorities in support of the proposition that the mere fact that the father had re-married a second wife was not sufficient ground for holding that he was unfit to be the guardian of his children. (See Audiappa Pillai v. Nattendrani Pilial I. L. R. 39 Mad, Mt. Siddiqunnisa Bibi v. Nizamuddin Khan and others A. I. R. 1932 All 21, Sm. Shanti Devi and another v. Gian Chand Har Sukh Rai, Smt. Samitran Devi v. Suba Ram .
(11) In the instant case we find that the respondent's mother is alive and it is submitted by the learned counsel for the respondent that the re-marriage of the respondent would in no manner interfere with the welfare of the minor as the mother of the respondent is there to take care of the minor.
(12) Mr. Bhagwat Dayal, the learned counsel for the respondent strenuously urged that the principles of Shariat Law alone were applicable in the present case and according to Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (Act No. Xxvi of 1937) notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and waqfs (other than charities and charitable institutions), the rule of decision in cases where the parties are Muslims shall be in the Muslim Personal Law (Shariat). The learned counsel, thereforee, contended that in matter of guardianship according to Section 2 of the Muslim Personal Law (Shariat) the decision has to be in accordance with the Muslim Personal Law (Shariat) and the Muslim Personal Law was that the mother by re-marriage disentitles herself to the custody of the minor even if the minor is under the age of 7 years. In the instant case, the learned counsel submitted, admittedly the mother has re-married and thereforee she has disentitled herself to the custody of the minor and that other considerations in view of section 2 of the Shariat Act cannot be allowed to prevail as the rule of decision in cases regarding guardianship of the minor where the parties are Muslims shall be the Muslim Personal Law (Shariat). In support of his contention the learned counsel relied on C Mahammad Yunus v. Syed Unnissa and others : 1SCR67 , in which their Lordships of the Supreme Court while examining the provisions of Section 2 of the Muslim Personal Law (Shariat) Application Act (1937) as amended by Madras Act 18 of 1949 observed that it was expressly enacted in the Shariat Act as amended that in all questions relating to the matters specified in the Act the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law. At page 811 their Lordships observed, 'the injunction is one directed against the Court: it is enjoined to apply Muslim Personal Law in all cases relating to the matters specified notwithstanding any custom or usage to the contrary'. It may be noted here that under Section 2 of the Shariat Act, 1937 in questions relating to charities and charitable institutions and charitable and religious endowments a custom or usage would prevail. But under section 2 as amended by Madras Act 18 of 1949 the rule of decision relating to the above said matters, notwithstanding a custom or usage to the contrary, was the Muslim Personal Law. That being so, in t above said case the question of custom was under consideration by their Lordships of the Supreme Court and it was in that context that the observations extracted above were made by their Lordships that the injunction is one directed against the Court: it is enjoined to apply the Muslim Personal Law relating to the charitable institutions notwithstanding any custom or usage to the contrary. That being so, no help can be drawn by the respondent from the above-cited authority as their Lordships were considering a limited question only, namely, the effect of amendment to section 2 of the Shariat Act by Madras Act No. 18 of 1949 and the question of guardianship of the minor was not under consideration. Besides, as would be observed from the statement of objects and reasons which led to the passing of the Muslim Personal Law (Shariat) Application Act (1937) was that the status of Muslim woman under the so-called customary law which was simply disgraceful was sought to be raised to the position to which they are naturally entitled. The learned counsel for the respondent next relied upon Mt. Ultat Bibi v. Bafati : AIR1927All581 in which it was observed that under the Mahomedan Law the father is the natural lawful guardian until by some order of a competent Court he is deprived of his rights as such, and the father is automatically entitled to exercise the rights of a guardian without any order by a Court appointing him as a guardian. It was further observed that side by side with the right of the father as the lawful guardian exists the recognized right of the mother by Muhammadan Law to have the custody of the child up to the age of seven. But if the mother had been divorced and had married a second husband she is not a person better suited to have the custody of the minor child than the father, however, unsuitable the father may be and in such an event the mother is not a person who ought to be heard to say that the father is unsuitable as a guardian. Reliance was also placed on Mir Mohamed Bahauddin v. Mujee Bunnisa Begum A Sahiba, : AIR1952Mad280 in which it was observ- ed that the custody or what is called 'hizanat' of a minor girl until she attains puberty and of a minor boy until he attains the age of 7 years is with the mother, but even then the legal guar- dian is only the father. It was further observed that the mother cannot continue to have the custody of the child, if she marries a second husband, in which case the custody belongs to the father. The learned counsel for the respondent drawing support from the above said two authorities contended that since the appellant had re-married and has a child from her second marriage, she has disentitled herself to the custody of the minor. Further it was stressed that the appellant and her mother are keeping the minor out of the way of the respondent and even do not tell the minor that respondent is his father. This act on the part of the appellant and her mother amounts to wil- fully preventing the father who is the natural guardian of the minor from having anything to do with the minor. In such a case goes the argument whatever right of hizanat the appellant possesses is liable to forfeiture as the hazina is preventing the father from exercising the necessary supervision or control over the minor which virtually amounts to removing the minor with- out the consent of its father from his usual place or residence. Support for this contention was drawn from a decision of the Full Bench in Mt. Ghuran v. Syed Riaz Ahmad A. I. R. 1935 Oudh 492.
(13) It may be noted here that the respondent filed the applica- corporation for the custody of the minor under section 25 of the Guar- dians and Wards Act and Section 17 of the Guardian and Wards Act specifically enjoins that in appointing or declaring the guar- dian of a minor, the Court shall, subject to the provisions of the section, be guided by the circumstances in the welfare of the minor- That being so, in cases for appointment of a guardian ' of a minor under the Guardian and Wards Act the considera- corporation always is the welfare of a child although the same has to be consistent with the personal law relating to the parties. The principle that while appointing a guardian of the minor the wel- fare of a child is a paramount consideration, was reiterated in Roman Konderan v. Ayyappan Panchali : AIR1959Ker396 , in Saraswatibai Shripad Ved v. Shripad Vasanji Ved : AIR1941Bom103 , in Shrimati Maya Devi and another v. Amolak Ram, P. L. R. 1956. The learned counsel for the respondent laid great stress on Mt. Meh- raj Begum v. Yar Mohammad A. I. R. 1932 Lah 493. In that case the minor a girl was little over 5 years. In the said case the Court approved the observations of the Oudb Court in Ansar Ahmad v. Samidan to the effect that 'where the law definitely lays down that an appointment of a certain guardian cannot be made, the Court cannot disregard the law even in the interests of the minor'. Commending the observations of the Court the learned counsel for the respondent submitted that according to the principles of law applicable to the Hanifi Muslims mother on re-marriage disentitles herself to the custody of a boy even under the age of 7 years. That being so, in the instant case the appellant having re-married, it is not open to the Court to disregard the Hanifi. Muslim Law as applicable to the parties even in the interest of the minor.
(14) It would be relevant here to consider Mohammad Saddiq and another v. Wafati in which it was observed by Ghulam Hasan, C. J. that the welfare of the minor was the paramount consideration which would influence the Court in deciding to whom the guardianship of the minor should be given and the rule that the father has got the natural right to the custody of his children is not a rigid and inflexible rule and must give way where the minor's welfare demands otherwise. It may also be noted that in the above case on appraisal of facts the father was held to be unfit for being appointed as a guardian. In the instant case even making allowances for the accusation of the respondent that the minor was always kept out of his way by the appellant and her mother and that the respondent was never allowed to see and meet the minor, the fact remains that right from his birth till today the minor has always remained in the custody of either the appellant or her mother i.e. the grandmother of the minor. That being so, there can be no escape from the fact that in suddenly removing the child from his present custody and entrusting the custody to the respondent would amount to upsetting the very atmosphere in which the child has grown. Such a step will not be congenial and healthy to the welfare of the child taking into consideration his present age which is admittedly 6 years and one month, and we are inclined to approve the view taken by Ghulam Hasan C. J. in Mohammad Saddiq and another v. Wafati supra and we hold that in deciding a case as the present one the welfare of the minor would not only be a relevant consideration but a paramount consideration of the court.
(15) Again in Abdul Mohit. vs. Mt. Zehunnessa Khatun and another, : AIR1951Cal205 in which relying on the observations of the Court in Tumina Khatun v. Gaharian Bibi : AIR1942Cal281 it was observed that the fact that the woman has married a stranger will not stand in the way of her being appointed as a guardian of the minor. In Tumina Khatun v. Gaharian Bibi, the Court observed. 'The Mohamedan law, however, has not forbidden the appointment of a woman who has married a stranger to be the guardian of the minor; all that it has laid down, as I have explained above, is that a woman who has a preferential right to the custody of an infant loses such right on her marrying a stranger'.
(16) It will, thereforee, be seen that the rigidity of law that a woman on re-marrying disentitles herself to the custody of a child has been watered down taking into view the principle that the Court should consider the interest and welfare of the minor in cases relating to the custody of the minor. In this view of the matter, taking into consideration the fact that if the custody of the child is immediately given to the respondent at this tender age the same may not be conducive to the welfare of the child who will find himself in a stranger atmosphere, we are, thereforee, of the opinion that it will be beneficial and in the interest of the minor if the appellant is allowed to retain the custody of the minor till he attains the age of 7 years, as during the interval the father who will be visiting the child and having access to meet him would be able to cultivate and establish a personal contact with the child who will also grow in maturity so that when eventually the child's custody is given to the respondent which ultimately has to be given, the minor does not find himself in an altogether changed atmosphere.
(17) The learned counsel for the appellant strongly urged that the Court, under its inherent powers and also the powers which it is enjoined to exercise under section 491 of the Code of Criminal Procedure, can over-ride all other considerations and give the custody of the child to the mother as according to the learned counsel the child who was being kept at Kuwait by his grandmother has under orders of this Court appeared and surrendered himself to the jurisdiction of the Court. In support of his contention the learned counsel relied on Gohar Begum v. Suggi alias Nazma Begum and others, : 1960CriLJ164 . In the above case the appellant who was unmarried Sunni Muslim woman, was the mother of an infant female illegitimate child. She filed an application under section 491 of the Code of Criminal Procedure for the custody of the child who was being detained by the sister of the mother of the appellant. It was in this context that their Lordships of the Supreme Court observed that under the Mohamadan Law the appellant was entitled to the custody of the child and the respondent had no legal right whatsoever to the custody of the child and that the refusal of the respondent to make over the child to the appellant resulted in an illegal detention of the child within the meaning of Section 491 of the Code of Criminal Procedure. It was in that context that it was observed that before making the order the Court was certainly called upon to consider the welfare of the infant child and applying the said principle their Lordships observed that the interest of the child would be better served with the appellant. The facts of that case have no relevance with the facts of the case before us. There the minor was being detained against the wishes of the mother who was the guardian. of her infant female illegitimate child. That being so, it cannot be said that if the custody of the minor is given to the rest pondent who is the father of the minor on the minor attaining the age of 7 years would in any way amount to the minor being detamed by the respondent.
(18) In view of our discussion above, we are in respectful agreement with the learned Single .Judge who having taken the relevant considerations in the case, observed that taking into consideration an overall view of the matter, it was not shown that the interest and welfare of the child would be in danger of being adversely affected if the respondent is given the custody of the minor and that the child's welfare undoubtedly lay in its being placed in the custody of the respondent.
(19) The appeal is, thereforee, dismissed but with this modification in the judgment of the learned Single Judge that the appellant shall retain the custody of the minor Master Shuja till he attains the age of 7 years. The child will, however, be kept at Delhi where the parties were last residing. The appellant showed her willingness to put the boy in a Boarding House of Saint Xavier's School. The respondent will have full opportunity of meeting the boy and the Principal of the School shall allow the respondent to meet the boy when desired by the respondent. On the other hand, if the appellant cannot stay in Delhi, her mother may do so and the boy shall remain with her after he is admitted in Saint Xavier's School as a day scholar. After the boy attains the age of years the respondent shall be entitled to the custody of the minor. The appellant also agreed not to claim the agreed sum of Rs. 200.00 p. m. from the respondent so long as the custody was not given to him.
(20) In the circumstances of the case, the parties shall bear their own costs.