Mst. Sundri vs Mohamad Fafoo and another

Jaswant Singh, J.—This appeal u/s 47 of the Guardian and Wards Act is directed against an order dated February 28, 1970, of the District

Judge Srinagar, rejecting the application preferred by the appellant for guardianship of the person and property of her minor son, Bashir Ahmed,

aged about five years, on the ground that she had forfeited her right to the custody of the child as after the death of her first husband, Ghulam

Mohamad Fafoo, she had contracted a remarriage with Khalik Dagga respondent No. 3 herein, who is a stranger and not at all related to the

minor.

It appears that on the death of Ghulam Mohamad Fafoo two applications, one by the appellant who is the real mother of the minor, and another

by respondent No. 2 herein, who is the paternal aunt of the minor, were made before the learned District Judge claiming guardianship of the person

and property of the minor. The applications were contested by respondent No. 1 herein who is the paternal uncle of the minor on the ground that

the applications were motivated by a desire to grab the property of the minor. By his order dated April 16, 1969, the learned District Judge

consolidated both the applications and after recording and considering the evidence adduced by the parties he, as already stated, passed an order

on February 28, 1970, holding that the appellant having married a person who was not at all related to the minor could not be entrusted with his

custody and that respondent No. 1 was a fit person to be appointed as the guardian of the person and property of the minor. It is against this order

that the present appeal has been preferred.

Appearing for the appellant Mr. S.P. Vohra has submitted that the remarriage by the appellant with a stranger did not constitute a bar to her

appointment as a guardian of the person of her minor son and that it would not be in the interest of the minor, who is hardly five years of age to

remove him from the custody of his mother.

Mr. J.N. Langar appearing for the respondent has on the other hand urged that the mother has disentitled herself to the custody of her minor son

by contracting a marriage with a stranger.

We have given our earnest consideration to the submissions made by the learned counsel for the parties and are of opinion that the learned

District Judge was not right in holding that the custody of the minor could not be given to the appellant because she had married a stranger. A

mother or a female relation of a minor child may lose her preferential right to be appointed as a guardian if she contracts a remarriage with a

stranger but that fact by itself does not disqualify her to be appointed as a guardian if it is otherwise in the interest of the minor. The welfare of the

minor is of paramount consideration in the matter of the appointment of a guardian and there is no bar to the minor's mother or other female

relation whose husband is dead, and who has remarried to be appointed as the guardian of the minor. The words ""subject to the provisions of this

Section"" occurring in Section 17 of the Guardians and Wards Act also lend support to this conclusion. We are also supported in this view by a

decision of this court in Hassan Bhat v. Ghulam Mohamad Bhat, AIR 1961 J&K. 5, where it was observed as follows:-

Sub-section (1) of Section 17 of the Guardians and Wards Act, no doubt, provides that the court is to be guided by personal law but the words

subject to the provisions of this Section"" clearly indicate that the consideration of the welfare of the minor should be the paramount factor and

cannot be subordinated to the personal law of the minor.

The following observations made by Shadi Lal, J., Musamat Fatima v. Musammat Rani, 28 Ind Cas 507 : (AIR 1915 Lah 390 (1)) are also worth

quoting:-

The remarriage of a mother is not a sufficient reason to deprive her of the custody of her children for the question in case of guardianship always is

whether it is for the welfare of the minor to appoint a guardian.

It would be also advantageous to refer to the following dictum laid down by their Lordships of the Calcutta High Court in Tumina Khatun Vs.

Gaharjan Bibi, (which was also relied upon and followed in Abdul Mohit Vs. Mt. Zebunnessa Khatun and Another, :

Under Section 17 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. The court should wherever possible make an appointment which is consistent with the

personal law to which the minor is subject; and when the personal law definitely forbids the appointment of a certain person as guardian, such

person should not be appointed. The Mohamedan 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 is that a woman who has a preferential right to the custody of an infant loses such

right on her marriage to a stranger.

In Mt. Siddiqunnisa Bibi Vs. Nizamuddin Khan and Others, , Sir Shah Mohamad Sulaiman, the then acting Chief Justice, expressed the view of

law as follows:-

There can be no doubt that so far as the power to appoint and declare the guardian of a minor u/s 17 of the Act is concerned the personal law of

the minor concerned is to be taken into consideration, but that law is not necessarily binding upon the Court, which must look to the welfare of the

minor consistently with that law. This is so in cases where Section 17 applies. In such cases the personal law has to this extent been superseded

that it is not absolutely binding on the Court and can be ignored if the welfare of minor requires that some one else, even inconsistently with that

law, is the more proper person to be appointed guardian of the minor.

Observations made in Mt. Samiunnissa Vs. Mt. Saida Khatun, , are also to the same effect.

The above decisions leave no doubt in our mind that the welfare of an infant is of prime consideration in the matter of appointment of a guardian

for his person and the mere fact that his mother contracts a second marriage after the death of his father with a stranger cannot stand in the way of

her being appointed as a guardian of his person if his welfare so demands.

We have also questioned the minor with a view to ascertaining his wish. He has expressed his desire to remain with his mother. He is of very

tender age and we do not think that it would contribute to his well being if we take him out of the custody of his mother who in our opinion, is in a

better position to look after his health and comfort. The attention, affection, love and sympathy which the child requires cannot be given to him by

his paternal uncle in the same measure as can be given by the mother specially when the child is hardly five years of age.

We accordingly allow this appeal in part and in partial modification of the order of the learned District Judge, Srinagar, appoint the appellant as

the guardian of the person of the minor until he attains the age of 12 years, when it would be. open to respondents 1 and 2 to make a fresh

application for guardianship of the person of the minor if the appellant neglects to look after the health, comfort, and education of the minor or

otherwise renders herself unfit to act as guardian of his person. The appellant shall not remove the minor out of the jurisdiction of the court without

obtaining permission in that behalf.

We do not, however, think it advisable to disturb the order of the learned District Judge appointing respondent No. 1 as guardian of the

property of the minor. While upholding this part of the order of the learned District Judge, we direct him to ascertain the items of property

belonging to the minor by holding a summary enquiry into the matter and then issue a certificate to the respondent on his furnishing adequate

security for the due administration and preservation of the property.

There will be no order as to costs of this appeal.