Zynab Bi alias Bibijan vs Mohammad Ghouse Mohideen

Krishnaswami Nayudu, J.—A Muslim mother of her two infant minor children, a female and a male of the ages of about five and two

respectively applies in this petition for custody of her two infants from the Respondent, who is her husband, and the petition is laid u/s 25,

Guardians and Wards Act. Parties were married on 14-12-1941 and have four children, Mumtazurnisa aged about seven years, Ghiasunnisa aged

about five years, Jameelunnisa aged about three years, and Ravoofuddin aged about one year and ten months. Ghiasunnisa and Bavoofuddin are

the minors concerned in this petition. The said minor children are admittedly at present in the custody of the Respondent, the other two

Mumtazunnisa and Jameelunnisa being with the petitioner. The petitioner was living with the respondent till about two months after the birth of the

minor boy, Bavoofuddin, and it is stated by the petitioner that for about two years after the marriage there have been some disputes between the

husband and wife regarding the properties of the wife and the allegation is that the husband, the respondent herein, wanted to have these properties

for himself, that he there, fore persuaded the wife to mortgage the same, that, in fact, a mortgage for Rs. 3,000 was executed and that on account

of these differences there have been certain ill-feelings and for some time they have been living separately. It is alleged that the respondent married

for the second time on 13-1-1949 and lived with his second wife separately for some time and that the said marriage was dissolved by Khula

through a Khazi on 2-9-1949. It is stated that the Respondent came to the Petitioner''s residence when she was residing with her uncle, and took

away three of the children forcibly, but subsequently the children were brought back to the petitioner. The petitioner states that eventually, on 30-

1-1951, the respondent came to her residence when no male member was present and took away the two minors. Ghiasunnisa and Ravoofuddin,

that the petitioner raised an alarm and cried aloud for assistance and that before any assistance could be available the respondent took away the

children and has been retaining them till now.

The contention of the petitioner is that both under Mahommedan law and in the interests and the welfare of the children, she is entitled to their

custody. Certain allegations are made in the petition that the respondent is of bad character, that he is involved in debt, that the children cannot be

properly taken care of by him and that in the interests of the children it is essential that they should be restored to their legal guardian, the petitioner.

The allegations as to his character, financial position, and unemployment are denied by the respondent in his counter affidavit. The respondent''s

case is that he has always been kind to his wife and children, that he has been anxious to have his family with him, but due to the evil advice of the

uncle of the petitioner, she is refusing to live with him, with her children. There were also criminal proceedings between the parties. As regards the

removal of the children on 30-1-1951, respondent denies that he took them away forcibly, but says that he went to her uncle''s house where she

was staying, had a talk with her and persuaded her to come away with him so that they could live happily, that she promised to join him with the

children, in a short time. He then told her that in that case he would have two children, the two minors concerned in this petition, with him and the

other children would remain with her to which she agreed; and under that arrangement, the respondent says that the two children came away with

him and that they are now being well looked after and treated properly by the respondent''s step-mother and his sisters.

The main attack of the respondent is against the uncle of the petitioner who is stated to be au unscrupulous person and the respondent says that

it is on account of his evil advice all these troubles are stated to have arisen. It is not necessary for the purpose of this petition to go into the truth or

otherwise of the several allegations and counter allegations that are made by the parties excepting those which would be necessary and relevant for

considering the question of custody of children and their welfare. The fact that the respondent married another woman and divorced her is not

denied and there is no doubt that the relationship between the parties has not been very happy, at any rate after two years after the marriage and

that it continues to be so upto now, the disputes being mainly relating to the question of properties. The suggestion of the petitioner is that the

respondent, and his father are anxious to deprive her of her two immovable properties which she is possessed of, that on account of her failing to

accede to their request they are trying all means to make her unhappy and that their keeping the children with them is also one of the modes by

which they are trying to enforce their will on the petitioner. The existence of disputes having been found, it appears, that without finding at this stage

as to whether either party is absolutely to be blamed, there have been differences on account of the properties of the petitioner and though there

are allegations by the petitioner of bad treatment by the respondent, the main trouble seems to arise from the question of the properties. Whatever

the reason is, the husband and wife have not seen their way to join. I tried in the course of this enquiry to persuade the mother to live apart for

some time with her children, when the respondent would be allowed to visit her, but she is not willing to do so as she has stated in her affidavit that

she apprehends that he will treat her cruelly. It has therefore become necessary to decide as to whom the custody of the children should be given.

The petition is also opposed on the ground that a petition u/s 25 Guardians and Wards Act in the circumstances is not maintainable, since the

respondent, being the father and not the petitioner who is the mother, is the natural guardian as well as the legal guardian; and as such Section 26,

Guardians and Wards Act, 1890, which, makes provision for the restoration to the guardian''s custody of a ward who has left or been removed

from the guardian''s custody can have no application in this case, and the mother, who is entitled only to Hizanat or custody of a minor child,

cannot be the natural and legal guardian and therefore no question of removal of the custody of the minor from the natural or legal guardian arises.

The observations of their Lordships of the Privy Council in Imambandi v. Haji Mutsaddi, 46 Ind. App. 73 are relied upon to show that the mother

is not the natural guardian, but the father alone is the legal guardian and, that under the Mahomedan law, the mother is entitled only to the custody

of the person of her minor child up to a certain age according to the sex of the child. Comment is made on these observations of their Lordships of

the Privy Council by Mulla in his book ""Principles of Mahomedan Law"" at page 296 in these terms:

It would appear from the passage quoted above that the father is the primary and natural guardian of his minor children, and that the right of

custody of the mother and the female relations in Section 25 below is subject to the supervision of the father which he is entitled to exercise by

virtue of his guardianship. If so, the right of hizanat does not carry with it all the powers which a guardian of the person of a minor has under the

Guardians and Wards Act, 1890"".

This seems to be the correct position in so far as the right to custody of male and female children of a Muslim upto certain ages is concerned.

Section 25, Guardians and Wards Act provides that:

It a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion, that it will be for the welfare of the ward

to return, to the custody of his guardian, may mate an order for his return, and for the purpose of enforcing the order may cause the ward to be

arrested and to be delivered into the custody of the guardian.

Relying on the language of Section 25, it is contended that there must be leaving or removal of the ward from the custody of the guardian, when

alone the Court can take into consideration the welfare of the child and decide as to whether the custody should be restored. But in this case the

mother not being the guardian of the person of the minors, the father alone being the, guardian, it is contended, that an order under this section

cannot be made. It is therefore necessary to see whether, even though the mother is not the legal guardian under the Mahomedan taw, she is, for

purposes of the Guardians and Wards Act a guardian who is entitled to the custody of her minor children, in view of the definition of ''guardian'' u/s

4(2), Guardians and Wards Act, is ''a person having the care of the person of a minor or of his property, or of both his person and property."" In

my opinion, it is not necessary for a person, as in this case of a Muslim mother, to show that she is legal or natural guardian in order to entitle

herself to the relief given u/s 25. It is sufficient if she is a person having the care of the person of the minors. It is therefore for consideration whether

a Mahomedan mother, under her personal law, is entitled to the care of the person of the minors--in this case, the minors are a girl of five years old

and a boy of the age of two years Parties being Hanafees, the mother is entitled to hizanat or custody of the male child until he has completed the

age of seven years, of the female child until she has attained puberty. Obviously therefore the mother, under Mahomedan law, is entitled to the care

of the person of her minor daughter until she attains puberty and of her minor son until he attains the age of seven years. In this view, a Mahomedan

mother comes within the definition of a guardian under the Guardians and Wards Act. If she comes within the scope of the definition of ''guardian''

under the Guardians and Wards Act, the petition u/s 25 of the Act is maintainable. What all the Privy Council has laid down in the case cited is that

by reason of the mother being entitled to the custody, she cannot claim to be the legal guardian Though the mother has got the right to custody, the

right of supervision and control is with the legal guardian, who is the father. Bat that would not deprive the mother from having the care of the

person, viz, custody of the children upto certain age, according to the faith to which the parties belong--whether they are Hanafees, Shiyas or

Shafees. In view of this, the petition u/s 25 of the Act is maintainable if there has been removal by the respondent of these two children from her

custody.

As regards this point the evidence is conflicting, the mother contending that taking advantage of the absence of any male members in the house,

the respondent took away the children forcibly, while the respondent contends that the children came away with him under an arrangement. It is

quite unlikely that the boy who is stated to be aged one year and ten months would have come willingly with the father. It is also doubtful whether

the children could have been brought under any arrangement since, if the respondent''s case has to be accepted, one would have expected him to

have taken suitable steps to implement the arrangement. It is therefore not possible to hold that there was any such arrangement.

The question of maintainability of a petition of this nature has been considered in the decisions : Noshirwam Manekshaw v. Sharaoshbanu

Noshirwan, A. I. R. 1984 Bom 311 and Venkataram Ayyangar v. Thulasi Ammal, 1943 2 Mad L. Jour. 802. Both the decisions hold that the

word ''guardian'' in Section 4 is used in a wide sense. and does not necessarily mean a guardian duly appointed or declared by the Court, but

includes a natural guardian or even a de facto guardian. In view of this, the correct conclusion that could be arrived at on a reading of Section 4(2)

is that the petitioner is a guardian as defined in the Act. I therefore find that the petition is maintainable.

The other objection is that even though the mother is entitled to hizarat, she has lost that right by reason of her having gone and re-sided during

the subsistence of the marriage at a distance from the father''s place of residence. There is no dispute that the petitioner and the respondent are

living apart, the petitioner near Mount Head and the respondent in Triplicane, both suburbs in the City of Madras. They therefore reside separately

during the subsistence of the marriage. But the question is whether the Petitioner resides at a distance from the father''s place of residence. It is

necessary to find as to what is meant by the words ""residing at a distance from the father''s place of residence"". This disqualification is mentioned as

one of the disqualifications in Mulla''s Mahometan Law at page 297, the other disqualifications being :

(1) if she marries a person not related to the child within the prohibited degrees, for example, a stranger; or

(2) if she is leading an immoral life, as where she is a prostitute; or

(3) if she neglects to take proper care of the child.

Wilson in his Anglo Mahomedan Law mentions the same four categories of disqualifications. Wilson says at page 186 of his treatise :

A woman otherwise entitled to the custody of a boy or girl is disqualified--by going to reside at a distance from the father''s place of residence

except that a divorced wife may take her own children to her own birth place, provided it be also the place at which the marriage was contracted.

Reference is made by Mulla in his book to Hedaya and Baillie''s'' ""Digest of Muhammadan Law"". A translation of the Hedaya is found in vol. I of

Hamilton''s Mussalman Laws. In Hedaya the disqualification consequent on the mother living at a distance from the father''s place of residence is

not specifically mentioned. In dealing with the place of Hizanut, Baillie in his ""Digest on Muhammadan Law"" Part I, second edition at page 439

states:

Where the husband and wife are residing is the proper place of hizanut, while the marriage subsists. So that the husband cannot leave the city

where they are residing, and take the child with him out of the custody of the woman to whom it properly belongs, until the child is independent of

her care; and if the wife should desire to leave the city he can prevent her, whether she have the child with her or not.

Though this is not mentioned as a disqualification in ''Hedaya'' it is not possible to disregard the mention of it in the wellknown and accepted

treatises on Muhammadan law by Mulla and Wilson and by Baillie in his ""Digest on Muhammadan Law"", and it may be taken for granted that

residing at a distance from the father''s place of residence is a circumstance against, though not strictly a disqualification to the mother''s right to

have the custody of the child. The reason behind this rule appears to be that the mother should not choose to reside at such distance from the

father, so as to deprive the father or prevent him from having access and exercising the necessary supervision over the child of which he is the legal

guardian. Syed Ameer Ali in his Mahomedan law at page 300 states aa follows:

The right of hizanat or custody, according to all the schools, is lost-

(1) by the subsequent marriage of the hazina, with a person not related to the Infant within the prohibited degrees;

(2) by her misconduct;

(3) by her changing her domicile so as to prevent the father or tutor from exercising the necessary supervision over the child; and (4) apostasy from

Islam.

It is therefore not open to the mother, taking advantage of the right of hizanat, to take away the children to whichever place she pleases and thus

deprive the father of his natural and legal right to have the control and supervision over his children to which he is entitled. In the present case, the

distance is not such as could be stated to prevent the father from going and seeing the children and doing his duty as the guardian. [9] It is

contended on behalf of the respondent that the mere separation of the wife from the husband would amount to living at a distance from the father''s

place of residence and that therefore the petitioner has become disqualified from exercising her right of hizanat. It could not have been intended that

the right of hizanat should be taken away, if for instance, the mother lives away from her husband and that the right of hizanat which was granted to

her should be deprived to her for a cause for which she may not be solely responsible. The language used by Ameer Ali as to residing at a distance

would only mean residing at such distance as to make it impossible for the father to go and supervise his children. If the mother lives apart at a

distance and leads a life of open immorality or misconducts herself, the latter ground would be sufficient to prevent her from exercising the right of

hizanat, irrespective of whether she is residing at a distance or not. Learned counsel has been endeavouring to chow that the respondent was not

responsible for the petitioner''s living away from him, that he did not treat her cruelly and that there was no justification for her residing separately.

The decision of that question is not really necessary in this case as no charge of misconduct has been levelled against the petitioner; and the only

charge is that she is living separately, which, by itself, is not sufficient to disqualify her from exercising the right of hizanat. If in fact the intention had

been to deprive the mother of the right if she lived separately from the father''s place, it would have been so expressed. But it has not been done.

The loss of the right of hizanat by reason of living at a distance was considered in Mt. Haidri Brgam v. Jawwad Ali, 1834 ALL. L. Jour 399 where

the mother was living in Lucknow and the father in Gorakbpur and it was held that the mother had the preferential claim under the Hanafi Law. In

Mt. Sakina Begam Vs. Malka Ara Begum, a Bench of the Allahabad High Court held as follows:

According to the Hanafi Law as between a mother and a father, the mother baa a preferential claim to the custody of their children. It cannot be

laid down as an absolute propsition that she loses the right of custody if she goes and resides at a distance from the father & place. It all depends

upon circumstances. If the stay is only temporary or is forced or is due to circumstances beyond her control, ill is difficult to hold that she should

even then be deprived of the custody of her own children. She loses the right of custody of her children only if she has any defect ot character such

as would render her unfit to have the custody of her own child.

There can be no doubt that due to certain circumstances this living separately had become necessitated, the circumstances mainly being disputes

over the properties of the petitioner. The petitioner states that circumstances compelled her to live away from the respondent. In view of those

circumstances and so long as there is no misconduct or improper behaviour on the part of the mother, it cannot be said that such living apart would

disentitle her from exercising the right to which she is entitled under the Mohammadan law to which the parties belong.

Apart from all these, in a petition of this nature, the paramount consideration to be taken into account is the welfare of the minors. The boy

being less than two years, it is ordinarily necessary that he should have the benefit of the mother''s milk and the one circumstance that the children

are of tender years is sufficient to hold that it is desirable that they should be entrusted to the custody of the mother.

In Hamilton''s Mussalman Laws at p. 388, dealing with the length of the term of Hizanat, Hamilton says as follows :

The right of Hizanat, with respect to it male child, appertains to the mother, ''grandmother, or so forth, until he becomes independent of it himself,

that is to say, become capable of shifting, eating, drinking, and performing the other natural functions without assistance; alter which the charge

devolves upon the father, or next paternal relation entitled to the office of guardian because, when thus far advanced, it then becomes necessary to

attend to his education in all branches of useful and ornamental science, and to initiate him into a knowledge of men and manners, to effect which

the father or paternal relations are best qualified: (Kasak saya that the Hizanat, with respect to a boy, ceases at the end of seven years, as in

general a child at that age is capable of performing all the necessary offices for himself, without assistance) but the right of Hizanat with respect to a

girl appertains to the mother, grandmother, and so forth, until the first appearance of the menstrual discharge, (that is to say, until she attains the age

of puberty), because a girl has occasion to learn such manners and accomplishments as are proper, to woman, to the teaching of which the female

regions are most competent; but after that period the charge of her property belongs to the father because a girl, after maturity, requires some

person to superintend her conduct, and to this the father is mostly completely qualified.

This statement of law, though applicable to those professing the Hanafi faith among Mussalmans can, in view of its reasonableness and

practicability, be usefully treated as of general application and as affording valuable guidance in considering questions relating to custody of minors

in this country.

After careful consideration, I find that the proper person under whose custody these minors should be is the mother. I therefore direct the

respondent to hand over the two minors, viz. Ghiasunnissa and Ravoofuddin to the petitioner. Respondent will be entitled to visit his children twice

a week, preferably on Sundays and Wednesdays. Respondent will pay the costs of the petitioner and her Advocate''s fee, which I fix at Rs. 100.