1. This Rule was obtained by Kazi Abdul Mohit who is paternal uncle of certain minors and it is directed against an order made by the Additional District Judge, 24-Parganas, refusing his application to remove the opposite party 1, who is the mother of the said minors, from guardianship under Section 17, Guardians and Wards Act. The Rule was also issued against the opposite party 2, who is the maternal grand, father of the minors, but it is not pressed.
2. A Muslim gentleman named Khan Bahadur Kazi Abdul Rashid died leaving certain minor children and upon his death two applications were filed for the guardianship of the persons and properties of the minor children. One application was made by the present petitioner who is the paternal uncle of the minors and the other application was filed by the opposite party l who is the mother of the minor children. By an order dated 9-10-1947 the Additional District Judge, who heard the two cases appointed the mother, opposite party l, as the guardian of the persons and properties of the minors. The petitioner in this Rule filed an application before the lower Court praying for the removal of opposite party 1 from the guardianship on the ground that after her appointment as guardian of the persons and properties of the minors the opposite party 1 had married a stranger who is not within prohibited degrees and has thus disqualified herself from continuing as the guardian of the minors. The learned Additional District Judge, who heard the application, dismissed it on the ground that the mere fact that opposite party 1 had married a stranger did not disqualify her from continuing to act as the guardian of the minors. Against this order made by the learned Additional District Judge the petitioner has obtained the present Rule.
3. Mr. Sen, appearing in support of the Rule, has argued that under the personal law of the Mahommedans, a Court is bound to remove a female relation from guardianship if after the appointment she marries a stranger who is not within the prohibited degrees and he urges that in exercising its powers under Section 17, Guardians and Wards Act, the Court is bound to apply the personal law of the parties. The question whether a female relation is disqualified from acting as guardian if she marries a stranger not within prohibited degrees was considered by a Bench of this Court in the case of Tumina Khatun v. Gaharjan Bibi : AIR1942Cal281 . In this decision, it was held that it is true that under Section 17, Guardians and Wards Act, the Court should, wherever possible, make an appointment which is consistent to the personal law of the parties but it is also observed as follows:
'The Mahommedan law, however, hag 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.'
This is a decision on the question as to whether a female relation, who had married a stranger, could be appointed a guardian of the minors, and this decision is an authority for the proposition that the fact that the woman has married a stranger will not stand in the way of her being appointed as the guardian of the minors. If that be so we do not see any reason to hold why such a woman should be removed from the guardianship if after her appointment she marries a stranger not within prohibited degrees. The point raised by Mr. Sen is thus concluded by the decision referred to above and it must be overruled.
4. Mr. Sen has argued in the second place that the guardian has removed the minors from the jurisdiction of the Court and thereby she is liable to be removed. Reliance has been placed upon Section 39, Clause (h), Guardians and Wards Act, which authorises a Court to remove a guardian for ceasing to reside within the local limits of the jurisdiction of the Court. It has been found in the present case that the minors have been sent to Dacca and there they are prosecuting their studies but it has also been found that at the time of her appointment the guardian was permitted by the Court to take the minors to Dacca. Section 39, gives the Court a discretion with regard to the question of removing the guardian for ceasing to reside within the jurisdiction of the Court. As in the present case the guardian was expressly authorised by an order of the Court to select Dacca as one of the places for the education of the minors, we do not think that the guardian should be removed on this ground.
5. Both the points urged by Mr. Sen fail and this Rule must accordingly be discharged with costs--hearing fee being assessed at two gold mohurs.
Das Gupta, J.
6. I agree.