1. It seems to us impossible to interfere in this case with the decision of the District Judge.
2. This application was under Act IX of 1861 by a Mahomed an father for the custody of his two children--a boy aged eleven and a girl aged seven. The application was opposed by the mother, who appears to be living separately from her husband ; and apparently the two are not on good terms. It is admitted that the District Judge's order is in accordance with the received precepts of the Mahomedan law governing the Shia sect, to which both parties belong. Mr. Amir Ali, however, hag asked us, upon the strength of a decision in Fuseehun v. Kajo 10 C. 15. to look further than the personal law of the Mahomedans, and to hold, as was done in that case, that only a female should be appointed, to have charge of a female minor. He asks us to direct that the minor daughter in this case should be left in the custody of the mother, while the boy should be handed over to his father.
3. We think that the case of Fuseehun v. Kajo 10 C. 15. is not applicable to the present case for this reason, that in that case the minors bad no father alive. The learned Counsel contends that in that case the uncles were the applicants, and that they stood in the shoes of the father, yet nevertheless this Court refused to give them the guardianship of the female minors. We find, however, that the Statute on which the Court relied in that case, namely, Act XL of 1858, Section 27, is itself fatal to the contention raised as regards the present case, for it is clear on the terms of that section that where a father is alive no guardian of the person of any minor can be appointed. If the father be dead a guardian of the minor may be appointed, but if the minor is a female, only a female can be appointed as guardian. The fact that in this case the father is not only alive but is the person himself who claims the custody of the children takes the case out of the purview of the ruling in Fuseehun v. Kajo 10 C. 15. cited by the appellant's Counsel. We think that the father is entitled, as found by the Judge, to the custody of both the children, the girl having attained the age of seven. If she had been under seven her mother would have-been entitled to her custody until she was seven.
4. The appeal is dismissed. We shall make no order as to costs.