1. In this case, the petitioner-appellant objects to the order of the District Judge of Bhagulpur refusing to hear his application to be appointed guardian of the persons of his minor daughter and his minor son. It appears that the petitioner has divorced his wife and, therefore, they are not agreed as to the custody of the children. The petitioner filed an application to be appointed guardian but that application was dismissed for non-appearance. He applied for a re hearing; but that petition, was also rejected. He then filed this second substantive application for appointment as guardian. The learned District Judge has held that the application is not maintainable and has dismissed it with costs.
2. In case it might be said that no appeal lay in such a case, the petitioner obtained from this Court a Rule (No. 5236 of 1910) in order that this Court might, if necessary, interfere in revision. We have no doubt whatever that the District Judge is in error in refusing to entertain the present application. It would, therefore, in the ordinary course be necessary to set aside his order of dismissal and remand the whole application to him to be tried on the merits.
3. It appears, however, that the daughter Musammat Kulsumunnessa was born in the year 1894 and she is, therefore, very close upon her majority. As the question is only one of guardianship of the person, and as the petitioner confesses that his object is with a view to his daughter's marriage, that he may give her away to a suitable bridegroom, we do not think that the application for guardianship of Kulsumunnessa's person should be allowed to proceed. She is now of an age in which her own consent is required to her marriage.
4. So far as the boy is concerned, he is only about thirteen years of age and the application may be necessary with regard to the custody of his person.
5. We accordingly set aside the order and decree of the District Judge, dated 22nd August 1910, and remand the application to the District Judge's Court at Bhagulpur in order that it may be heard with regard to the guardianship of the person of Nabi Ahmed, the minor son of the petitioner.
6. We think that in this case an appeal lies. The Rule, therefore, is discharged as being unnecessary.