Mohamad Amin Shah vs Mst. Ateeka Banu and Others

S. Murtaza Fazl Ali, J.—This is an appeal against an order made by the Additional District Judge Srinagar appointing Mst. Ateeka Banu

Respondent No. 1 as guardian of the person and property of the two minor girls Masooda Banoo and Irshad Banoo.

It appears that before the Court below the Appellant Mohamad Amin Shah made an application for the appointment of the guardian of person

and property of the minor daughters of Qadir Shah deceased. The application was resisted by Respondent No. 1 the mother of the minors, and

Abdul Rashid and Ors. the cousin of the minors. Both the parties adduced evidence in respect of their respective cases and the Court after

consideration of the evidence appointed Mst. Ateeka Banu as the guardian of the minors. Learned Counsel for the Appellant has contended that

the Court in appointing the Respondent No. 1 as guardian of the minors has not kept in view the welfare of the minors as also their wishes in the

matter. One Peer Banu, the father's sister of the minors was also made a party in the Court below but she did not appear at all. She has appeared

in this Court through Mr. S.N. Dhar and has expressed her willingness to be appointed as guardian of the person and property of the minors, if the

Court so directs. The entire evidence has been placed before us by counsel for both the parties.

Before us, however, the main competition for the guardianship of the minor daughters has been between Respondent No. 1 and the Appellant.

Learned Counsel for the Appellant submitted that Respondent No. 1, the mother of the minors, has disqualified herself from being the guardian of

the minor daughters firstly because she has remarried after the death of her husband and secondly because the girls have crossed the age of

Hazinat"", the age under which they could be under the ""Hazinat"" of their mother under the Mohammadan Law but are now nearing of age of

puberty. It is further contended that not only Respondent No. 1 has remarried but has married a complete stranger who does not belong to the

particular sect to which the parties belong, that is to say, that the second husband of Respondent No. 1 is a Pathan and not a Peer Zada to which

caste the Appellant and the minor daughters belong. It is also contended by learned Counsel for the Appellant that the second husband has got

three sons, two of whom are grown up and are living with their step mother and it will not be safe to allow the girls who have just stepped into their

teens to live with these boys. There is also a possibility, it is suggested, of the second husband attempting to secure the marriage of these daughters

with his sons which is permissible under the Mohammadan Law.

In our opinion, the contention of the learned Counsel for the Appellant seems to be well founded. There is, no doubt, that the minors cannot be

looked after properly in all respects if they are allowed to live with their mother in the same house where the stepfather is also living with his two

grown up sons. Even under Mohammadan Law Respondent No. 1 has forfeited her right to be appointed as guardian of the minors by Virtue of

her remarriage and having regard again to the fact that she had remarried not only outside the family but outside the particular sect to which the

members of the family of the minors belong, is an additional reason why Mst. Ateeka Banu is not a fit person to be appointed as guardian of the

minors.

The court below had ascertained the desire of the minor to live with the Appellant. The Court below, however, was of the opinion that the

minors gave their statements in absence of their mother and, therefore, their statements had been inspired by the influence of the Appellant with

whom they had been residing when they were produced before the Court. We, however, examined the girls before us also in order to ascertain

their wishes in the matter. Their statements were taken not only in presence of Respondent No. 1 but after Respondent No. 1 was allowed to meet

the girls. In spite of that the girls stated very clearly that they would like to live with the Appellant, and they have been happy with him. They have

also stated that the Appellant has a daughter of the same age as the girls and they find it more convenient to stay with the Appellant so that they

may have, apart from anything else, a play-mate in the daughter of the Appellant.

The learned Judge refused to consider the case of the Appellant merely because he thought that he has got an adverse interest against the minors.

The learned Judge relied on the statement of the Appellant that the house in question was claimed exclusively by him although it was claimed by the

minors to be the joint property of the father of the minor girls in which the minor daughters would have their legal share. It appears that not only the

Appellant but also other cousins had made out a case before the Court below that the original ancestral house was divided between the parties and

Abdul Rashid the uncle of the Appellant and the Appellant's father had purchased the share of the father of the girls. In spite of this, the Appellant

gave a clear statement on oath before us that he would certainly give the legal share of the daughters in the house in question. In view of this

statement, no adversity of interest now exist between the Appellant and the daughters so far this property of the deceased is concerned.

Furthermore, it appears that in the application filed by the Appellant he has clearly mentioned that steps should be taken to recover the property of

the minors because a portion of the agricultural land appears to have been sold by the uncle of the daughters without any legal sanction. This clearly

shows that the Appellant has come with clean hands and intended to protect the interests of the minors rather than to put their interests in jeopardy.

Although the girls had lived with the mother for a number of years before they came to live with the Appellant, yet Respondent No. 1 never made

an application to the Court that she may be made the guardian of the minors. This shows to begin with somewhat lack of interest which Mst.

Ateeka Banu has exhibited in the daughters. It was only when the Appellant made an application for the appointment of guardian of the minors,

that she came forward to resist that application.

It was strenuously contended by Mr. Karim, counsel for Respondent No. 1 that as the Appellant is only a step cousin he is completely

disqualified from being the guardian of the person of the minors under the Mohammadan Law and he also appears to be "" "" (Urdu word omitted)

(not within the prohibited degree). It is true that in appointing a guardian the Court will certainly be guided by the personal law of the parties but the

primary consideration which would determine decision would be the welfare of the minor and if the Court considers that it is in the welfare of the

minor to appoint even a stranger it can do so, irrespective of the Personal Law of the parties. As Respondent No. 1 herself is disqualified from

being appointed the guardian of the minors, it does not lie in her mouth to say the same thing regarding the Appellant. Moreover, the Appellant is

an elderly man and has got a daughter and a wife in his house. In these circumstances, there is no danger of the minor daughters not being looked

after properly. The daughters themselves have preferred to live with the Appellant rather than their own mother and as the daughters are possessed

of sufficient intelligence their wishes, have to be respected by the Court. The Respondent Peer Banu who is the father's sister of the daughters is

the most preferential guardian even under the Mohammadan Law and excludes every other candidate that has been arrayed in this contest for the

guardianship of the minor girls. The difficulty, however, in leaving the minor daughters with her is first of all that she is an old woman and secondly

that she has got a grown up unmarried son and it is not safe to entrust the minor girls to her in these circumstances.

Having regard, therefore, to the welfare of the minors from all points of view we are clearly of the opinion that the Appellant is most suitable to

be appointed as the guardian of the person and property of the minors. We also think that it will be better to appoint Peer Banu also as the

guardian of the property of the minors jointly with the Appellant. The Appellant has stated that he has no objection if this is done. Learned Counsel

for the Respondent No. 1 clearly stated that if she was not given the custody of the children, she will not be interested in the property of the minors

at all. We also feel that having regard to the gesture shown by the Appellant in admitting the legal share of the daughters in the ancestral house, it

will be more in the interest of the minors that they should be placed under the guardianship of the Appellant. The appointment of the Appellant as

the guardian of the person and property of the minors will not, however, stand in the way of the other parties namely, the mother, the cousins, and

Peer Banu in meeting the minors at the house of the Appellant and he will afford all facilities for such a meeting as and when required. The court

below will also certainly consult these parties at the time when an application is made to it for the marriage of the girls, when such an occasion

arises.

For these reasons, we allow the appeal of the Appellant, set aside the order of the Court below and appoint the Appellant Mohammad Amin

Shah as the guardian of the person and property of the minor daughters of Qadir Shah deceased. So far as Peer Banu is concerned, she is also

appointed as the guardian of the property of the minors jointly with the Appellant. The guardians shall now furnish necessary security and shall also

maintain and submit regular accounts as provided by the Guardians and Wards Act.

The Additional District Judge will in the meanwhile watch the interests of the minors and if after some time he finds after examining the minors

that they are not being properly looked after by the Appellant, he will be at liberty to consider the desirability of appointing Anr. suitable guardian

of the person and property of the minors

J.N. Wazir, C.J.

I agree.