1. Moksed and Fatema are the infant son and daughter of Amina and Mobarak Ali. They are aged about four years and six years respectively. Both their parents are dead. Tumina Khatun, the sister of Amina, applied for the guardianship of the person and property of these two infants. Amina's father, Isurhaddi, applied to be appointed guardian of the property only of the minors, and Tumina gave up her claim in this respect. The applications-were opposed by Gahar Ali Mridha, the paternal grandfather of the minors. The learned District. Judge has appointed Isumaddi guardian of the-property of the minors, and this part of the order is not appealed against. He has dismissed Tumina's application to be appointed guardian of the persons of the minors and has appointed Gahar Ali's wife, Gaharjan, the step-mother of Mobarak Ali, as such. The appeal is against this order.
2. On behalf of the appellant it is argued that Tumina, as maternal aunt, has, under the Mahomedan law, a preferential right to the custody of the minors and that the reasons given by the learned Judge for not appointing her are insufficient. It is pointed out that Gaharjan, being the step-mother of the father of the minors, has no right under the Mahomedan law to be appointed guardian. Learned advocate for the respondent contends, firstly, that the reasons given by the learned Judge for not appointing Tumina are good ones; secondly, that Tumina, having married a person not related to the minors within the prohibited degrees, she has disqualified herself from claiming to be guardian of the minors under the Mahomedan law and that the Court in these circumstances could not appoint her as guardian as the provisions of Section 17, Guardians and Wards Act forbade such appointment.
3. I shall deal with the question of disqualification later and shall assume for the present that there is no disqualification. Tumina, being a maternal aunt, has certainly a preferential right to the custody of the two minors under the Mahomedan law. Now Section 17, Guardians and Wards Act, provides that, in appointing a guardian of a minor, the Court should, subject to the provision of the 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 section goes on to say that, in considering what will be for the welfare of the minor, the Court should have regard to the age and sex of the minor, the nearness of kin of the proposed guardian and similar matters. It is clear from the section that normally Tumina, who under the Mahomedan law would be entitled to the custody of the children in preference to any one else, should be appointed guardian and that it is only in exceptional circumstances that any one else could be appointed. The learned Judge seems to have accepted this position. What has to be decided is whether the reasons assigned by the learned Judge for not appointing Tumina are adequate. The reasons given by the learned Judge are two, viz.: (i) She is 21 years of age and has two children and may have more; she is too young and will not have the time to look after the minors. (ii) Neither she nor her husband have deposed in the case and it is her father Isumaddi who has applied for her.
4. In my opinion neither of these reasons are adequate for refusing to appoint a person guardian, who according to the personal law of the minors, is normally entitled to be so appointed. A married woman of 21 with children is quite mature enough to look after the personal welfare of two infants aged four years and six years. The fact that she has other children is a further qualification and certainly not a disqualification. I see no reason to hold that she would not have time to look after the minors. The second reason is equally inadequate. In the society to which the petitioner belongs, it is usual for the senior male member of the family to look after litigation. The learned Judge has found that Isumaddi, the father of the appellant Tumina, is a fit and proper person to look after the property of the minors. It is difficult 'to appreciate why in such circumstances he should hold that the fact that Isumaddi is behind his daughter Tumina in her application is one which should render her unfit to be guardian.
5. The next question for decision is whether Tumina has disqualified herself from being appointed guardian by reason of the fact that she has married a person who is not related to the minors in the prohibited degrees. It is true that, in his petition in opposition to the application for guardianship, Gahar Ali makes this allegation, but there is no evidence given that Tumina has married such a person and there is no finding in the Court below to that effect. If I thought that the fact that Tumina was married to such a person would disqualify her from being appointed guardian of the minors, I would have sent the case back for the ascertainment of this fact, but I hold the view that such a marriage would not disqualify her. Under the Mahomedan law, as I have stated before, Tumina being a maternal aunt, she would have a preferential right to the custody (hizanit) of the infants to that of Gahar Ali or his wife Gaharjan. It is, however, laid down by the Mahomedan law that a female otherwise entitled to the custody of a child loses the right of custody if she married a person not related to the child within the prohibited degrees : vide the Hedaya, Chap. 14, p. 138; Baillie's Digest 432. If, therefore, Tumina has married a stranger to the minors she has lost the right to the custody (hizanit) of the children, which she had under the Mahomedan law prior to her marriage, but it does not necessarily follow from this that she is disqualified from being appointed a guardian of the minors by a Court acting under the Guardians and Wards Act. Under that Act a stranger, who, prior to the order of appointment, had no right whatsoever to the guardianship of the minor, may be appointed guardian. All that the section says is that, subject to the welfare of the minor, the appointment should be made consistently with the personal law of the minor. Thus, preference should be given to persons, who, under the personal law of the minor, would be entitled to guardianship and persons, who are prohibited from being guardian by such personal law, should not be appointed. A stranger, however, may be appointed guardian under the Act if the welfare of the minor demands such appointment. This is perfectly clear from the Act. Now, if, in certain circumstances, a stranger may be appointed, I can see no valid reason for excluding, in those circumstances, a maternal aunt who has married a stranger. She cannot be in a worse position than a stranger as regards her eligibility to be guardian.
6. It is argued, however, by learned advocate for the respondents that by her marriage to a stranger the maternal aunt has 'disqualified' herself from being appointed guardian and reliance is placed for this view upon the case in Yakub Sheikh v. Nafujan Bibi ('10) 11 C.L.J. 632 at p. 635. It is true that there are certain observations in that case which seem to indicate this view; but the question under discussion now was not one which required decision in that case and it was not raised in this form. There the mother, who had married a stranger, claimed a preferential right to the guardianship of her child over that of the child's paternal uncle. Mookerjee J., after referring to the Mahomedan law on the subject rejected her claim and, in doing so, he made certain observations to the effect that the mother had disqualified herself from claiming the custody of the child by her marriage to a stranger. In another part of the judgment, when considering the question of the guardianship' of the property of the minor, the learned Judge stated that : 'If a person is disqualified for the office of guardian by the law to which the minor is subject, he cannot be appointed guardian.' These remarks falling, as they do, from an eminent Judge of this Court, require the most careful consideration and it is with the greatest respect and not without some hesitation that I say that I am unable to agree with the view--if that be the view of the learned Judge--that a Mahomedan mother or aunt, who would otherwise be eligible for the guardianship of an infant, becomes 'disqualified' from being appointed guardian under the Guardians and Wards Act, because she has married a stranger to the infants. I have consulted the texts in the Hedaya and also Baillie's Digest. In the Hedaya, the reason is given as to why a woman loses the right of hizanit upon her marriage with a stranger to the infant. It is said that the husband of the woman, being a stranger, may illtreat the child. It is further said that on the dissolution of such marriage, the right to custody revives. Baillie gives no reason, but merely states the fact that the right to custody is 'made void' by marriage with strangers and that the right revives on the marriage being dissolved. It is clear from these passages that, under the Mahomedan law, a woman, who marries a stranger to the infant, is not considered as having done something which would render her personally unfit to be the guardian of a child. The Mahomedan law nowhere directs that a woman, having minor relations, should always marry the relations of such minors or that the marriages of such women with strangers are looked upon with disfavour. It laid down this rule regarding the custody of minors by females, in order to protect them as far as possible from harsh treatment by strangers. Further, the passages in Baillie and the Hedaya, stating that a woman loses the right of hizanit by marriage with a stranger to the minor, occurs where the question of the preferential right of guardianship is being discussed. It is nowhere suggested that, where there are no other eligible relations, the Judge cannot appoint a woman who has lost her right of hizanit by her marriage to a stranger. The word 'disqualified' is nowhere used. I do not consider, therefore, that the Mahomedan law lays down that a woman, who has married a stranger to the minor, is 'disqualified' from being appointed a guardian under any circumstances. It merely lays down that such a woman loses any preferential right which she had by virtue of her relationship to the minor.
7. As I pointed out before, the terms of Section 17, Guardians and Wards Act, are perfectly clear. The welfare of the infant is the primary consideration and a stranger may be appointed a guardian, in preference to a relation, if the Court considers that the welfare of the infant demands it. I realise that the section also enjoins that the Court should, wherever possible, make an appointment, which is consistent with the personal law to which the minor is subject; and that, when the personal law definitely forbids the appointment of a certain person as guardian, such person should not be appointed. The Mahomedan law, however, has not forbidden the appointment of a woman who has married a stranger to the minor to be 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 marriage to a stranger. I am of opinion, therefore, that the appellant is not disqualified from being appointed a guardian. If she has married a stranger, she has only lost her preferential right as aunt. She is in no worse position than Gaharjan, who is stranger to the minors. As between the two, I consider that the welfare of the minors would be better served by appointing the appellant Tumina as guardian. Gaharjan is a step-mother of the infants' father, while Tumina is the infants' mother's sister. It is far more likely that she will look after them with more affection and care than Gaharjan.
8. There remains Gahar Ali himself. Under the Mahomedan law, the grandfather, in the absence of certain relations, has a right to be appointed guardian. Gahar AH, as grandfather, would have a preferential right to that of Tumina under the Mahomedan law, if Tumina has married a stranger. The learned Judge has, however, found him to be unfit to be guardian of the property of the minors, inasmuch as his interests are adverse to theirs and inasmuch as he is claiming a right adversely to the minors in certain property left by the minors' father. The learned Judge also points out that he was prosecuted for executing a decree which had already been executed. In these circumstances, I do not consider that it would be proper to appoint him as guardian of the minors' persons. In my opinion, the welfare of the minors will be best secured if Tumina is appointed the guardian of their persons and I, accordingly, appoint her as such; the minors shall remain in the custody of Tumina. This appointment shall be treated for all purposes as having been made by the District Judge of Bakarganj. This appeal is allowed with costs.
8. I agree.