1. This case was once before this Court, and was remanded to be retried with reference to the observations made in the remand judgment.
2. The proceeding in the lower Court was commenced by a suit under the provisions of Act IX of 1861 brought by Mussamut Kajo, the mother of Fuseehun, claiming the custody of her four grandchildren, i.e., the children of Fuseehun. One of these children is a boy, and the other three are girls. They are all admittedly under age.
3. The District Judge finds that the boy is over seven years of age, and the eldest girl, Beebee Sulima, is nearly twelve years old, and has arrived at puberty in the sense in which that term is used in the Mahomedan law.
4. There was a counter-application made by Abu Saleh and Abu Mahomed, their uncles, and Mussamut Sobi, their father's mother, in which they opposed Mussamut Kajo's claim, and set up their right to the guardianship of these minor children.
5. The Judge has found that the other two girls, viz., Surah and Habilea, have not yet arrived at puberty. Upon these findings he has declared that Mussamut Kajo is entitled to the custody of these two girls, and the uncles to the custody of the boy and Beebee Sulima. It was admitted before the learned Judge that the mother Fuseehun, having contracted a second marriage with a stranger, had forfeited her superior right of guardianship under the Mahomedan law.
6. In this appeal the order of the lower Court as regards the two younger girls is not questioned; but it has been contended that Mussamut Kajo is also entitled to the guardianship of the other two children.
7. So far as the question of guardianship of the boy is concerned, we see no reason to interfere with the order of the lower Court. It is in strict accordance with the provisions of the Mahomedan law on the subject.
8. But as regards the girl Sulima, we are of opinion that the order of the lower Court is not correct. It seems to us that the law upon this subject has been laid down by the Legislature, which, if it has modified the Mahomedan law, must govern our decision.
9. In Section 21, Regulation X of 1793, it was enacted that the guardianship of a female minor shall in no instance be entrusted to a person other than a female.
10. This law was applicable to persons whose estates were under the jurisdiction of the Court of Wards. But as regards minors, whose property could not be brought under the superintendence of the Court of Wards, it was enacted by Section 2 of Act XL of 1858 that the care of the persons of such minors, and the charge of their property, shall be subject to the jurisdiction of the Civil Court. Section 27 of that Act says that nothing in this Act shall authorize the appointment of any person other than a female as the guardian of the person of a female.
11. Whatever may have been the provisions of the Mahomedan law upon the subject, the two legislative enactments referred to above have laid it down that a person, other than a female, shall in no case be entrusted with the guardianship of a female minor. The District Judge, referring to Section 27 of Act XL of 1858, says that the parties were not bound by the provisions of that section, because the proceeding before him was under Act IX of 1861. But this latter Act only lays down the procedure regulating a suit for the custody of minor children by guardians or other person entitled to their custody.
12. The Regulation and the Act referred to above on the subject of the guardianship of the person of a female minor laying down the substantive law with reference thereto must be followed in a suit under Act IX of 1861.
13. Although the order of the lower Court is in strict accordance with the Mahomedan law, as laid down in Baillie's Digest and Hamilton's Hadya, we may as well point out here that the law laid, down by the late Mahomedan Jurists is more in accordance with the spirit of the legislative enactments referred to above. This is pointed out in a recent work of Mahomedan law by Syed Amir Ali, who, in page 196, says: 'Among the Hanafis the mother is entitled to the custody of her daughter until she arrives at puberty. Among the Maliki Shafees and Hanabalis the custody continues until she is married. According to the judgment of the Court of Algiers it appears that in several notable instances the Hanafi Kajis have followed the Maliki doctrines, and decided that the mother is entitled to the custody of her daughters until their marriage.'
14. The result is that the order of the lower Court as regards Beebee Sulima will be set aside, and Mussamut Kajo will be declared entitled to the guardianship of her person. The parties will bear their own costs.