P L D 1952 Azad J (PLP)

This is an appeal from the order of District Judge, Mirpur appointing Khushia the respondent before me as guardian of his grand daughter Mst. Rehmat Bibi aged about 10 years, The respondent in the subordinate Court and the appellants in this Court are Mst. Fatma Bibi the mother of the minor and Sakhi Muhammad her second husband. Mst. Fatma Bibi was married to the son of Khushia who died about 11 years ago. Mst. Rehmat Bibi was born some six months after the death of her father who was the son of Khushia. Mst. Fatma Bibi was married to Sakhi Muhammad about a year after the death of her former husband. Mst. Rehmat Bibi had been living with her mother since her birth. Khushia applied to the District judge for appointment as guardian of the person of Mst. Rehmat Bibi on 10th December 1950, alleging that it was in the interest of the minor that he should be appointed guardian of her person because Mst. Fatma Bibi was about to perform the mar riage of the minor which would be prejudicial to her interests. The application was contested by Mst. Fatma Bibi. The learned District judge without framing issues on the points in dispute between the parties appointed Khushia as guardian of the person of Mst. Rehmat Bibi on the ground that the second marriage of the mother of a minor girl to a person not related to the minor within prohibited degrees disqualifies that woman for the guardianship or custody of the child. Against the order of the District Judge Mst. Fatma Bibi preferred an appeal to this Court. As the learned District judge had not considered the welfare of the minor in appointing a guardian of her person, it was thought proper to send the case back to him with the direction that‑he should frame proper issues in the case and then decide the application. On remand the learned District judge framed three issues for deciding the points in dispute between the parties. The first issue was whether Khushia applicant tried to support the minor while she had been living with her mother and if not how this fact affected his right to have the custody of the minor. The second issue was whether Khushia wanted to marry the minor as he desired and for that reason he had applied for her custody. The third issue related to the relief to which the applicant was entitled. After the issues had been framed the parties were directed to produce evidence. The learned Counsel for the parties simply examined their clients as witnesses and closed the proceedings. The learned District judge then gave the same judgment as given by him previously. This judgment is now under appeal. The manner in which the learned District Judge proceeded with the case after remand indicates that either he did not read the judgment of the High Court carefully or misinterpreted it intentionally because the important consideration which resulted in the case being sent back to the District judge was that there was no material on the record for concluding whether it will be in the interest of the welfare of the minor to appoint a guardian of person when her father had left absolutely no property and she had been living with her mother since her birth which took place after the death of her father. It seems that the learned District Judge laboured under the impression that the mother of the minor also wanted to be appointed guardian of her person and consequ ently he had to judge between the rights of the grand father and mother of the minor for appointment as guardian. But this was not the case here. The important question in this case was whether it was necessary to appoint any person as guardian of the minor and this was altogether overlooked by the learned District Judge. Under section 17 of the Guardian and Wards Act, it is open to the Court to appoint a guardian if it is considered that the appointment will be for the welfare of the minor and it is decided that a guardian should be appointed then the Court is restricted in the choice of the guardian by the provisions of section 17 and an appointment must under that section be consistent with the law to which the minor is subject. If the mother were petitioner on one hand and the grandfather on the other hand and both of them desired to be appointed guardian of the person of the minor, then certainly the grandfather would be in a position to defeat the mother, the latter having lost her right for the custody of the minor owing to her re‑marriage with a stranger. The primary question for decision; however, in this case is whether it is for the welfare of the minor that a guardian of her person be appointed at all. In my opinion considering that the minor had been living with her mother since her birth it would certainly not be for her welfare that she should be taken away from her mother and handed over to her paternal grandfather. It is clear that the person who has her interest most at heart is 'her mother and not paternal grandfather. I examined the mother of the minor as well as her second husband and both of them have stated that they would not marry the minor without the consent of her paternal grandfather. In my opinion it is, therefore, not for the welfare of the minor that a guardian of her person be appointed in this case. A I R 1928 Oudh 220 quoted by the learned counsel for the respondent is not at all applicable to this case. It only lays down that when an appointment of a certain guardian cannot be made under Muhammadan Law then it is not proper for the Court to disregard it though the appoint ment may be in the interest of the minor‑ In other words where a choice is to be made between the two guardians of the minor then it should be in accordance with the personal law of the minor and it is not necessary to appoint a guardian bf the person of the minor in every case. My opinion being that it is not necessary to appoint a guardian of the person of the minor in the present case the order of the District judge cannot be maintained. I, therefore, accept the appeal and set aside the appointment of the respondent as guardian of the person of the minor. The costs of the appeal are ordered to be borne by the parties in the special circumstances of the case. K. M. A. Appeal accepted.