P L D 1963 (W (PLP)

11. The next question is as to when does guardianship terminate under the Muhammadan Law. The rule is stated as follows by Tyabji:‑ "Section 277.‑No person has the right to the custody of a male child after the child has attained majority. Under Hanfi Law, after a child has attained puberty, `if he is of ripe discretion, and may be trusted to take care of himself, he is to be set free, and allowed to go where he pleases, but if he cannot be trusted to take care of himself, the father should join him to himself or keep him by him, and be his guardian'. The Shia law is similar: `When a child has attained puberty and discretion, the power of the parents is at an end, and he is free to join himself to whomsoever he pleases." Section 278 (1).‑No person has under Muhammadan Law the right to the custody of a virgin after she has attained puberty and the age of discretion. (2) The powers of the guardian of the person of a female ward ceases on her marriage to a husband who is not unfit to be the guardian of her person; provided that where a guardian of her person has been appointed or declared by the Court, his powers do not cease, unless the Court is of opinion that the husband is not unfit."

12. According to the Hedaya (Column 2 on page 139) "A boy or girl, having passed the period of Hizanat, have no option to he with one parent in preference to the other, but must necessarily thenceforth remain in charge of the father. Shafei maintains that they have an option to remain with either parent, because of a tradition of the Prophet to this effect. The argument of our doctors is, that young persons, from want of judgment, will naturally wish to stay with the parent who treats them with most indulgence, and lays them under less restraint, wherefore giving them a choice in this matter would not be tenderness, but rather the reverse, as being contrary to their true interest; and it appears in the Nakl Saheeh that the Companions withheld this option from children. With respect to the tradition cited by Shafei, it may be observed that, in the instance there alluded to, where the Prophet gave a boy his choice, he first prayed to God to direct him therein, and the boy then chose, under the influence of the Prophet's prayer." It will be seen that the discussion in Hedaya does not provide us with any definite answer to the question of termination of guardianship. However, some light is thrown on the subject by Baillie in his Digest of Muhammadan Law on page 438 of the 1957 Edition. It is stated that: "After a boy is independent of a woman's care, and a girl is adult, the asubat has the better right to their custody, the nearer being preferred to the more remote, as already mentioned. And these are to retain the custody of the child, if a male, till he has attained to puberty; after which, if he is of ripe discretion, and may be trusted to take care of himself, he is to be set free, and allowed to go where he pleases. But if be cannot be trusted to take care of himself, the father should join him to himself, or keep him by him, and be his guardian. With regard to a female, if she be suyyib (that is a woman who has known sexual intercourse), but cannot be safely left to herself, she is not to be set free, and the father ought to keep her with himself. If, however, she may be trusted to take care of herself, her father has no right to retain her, and she should be left free to reside where she pleases. If she is adult and a virgin, her guardians have right to retain her, though there should be no apprehension of her doing anything wrong, while she is of tender age. But if more advanced in years, and of ripe discretion and chaste, they have no right to retain her, and she may reside wherever she pleases."

13. While discussing the subject of the "Wilayet‑ul‑Jabar", or the Doctrine of Patria Potestas, in Chapter IV of his book on Muhammadan Law, Ameer Ali states that: "Puberty is presumed on the completion of the fifteenth year, according to most of the schools, unless there is evidence to the contrary. As a general rule, however, a person who com pletes the fifteenth year is considered, without distinction of sex, to be adult and sui juris, possessed of the capacity to enter into legal transactions (page 235)." Earlier on page 234, the learned author observes. "Under the Muhammadan Law, according to all the schools, the power of the father to give his children in marriage without their consent can be exercised in the case of sons until they have attained their bulughyet or puberty, when they are emancipated, so far as their personal rights are concerned, from the Patria Potestas, and are at liberty to contract themselves in marriage. As regards female children, there is considerable divergence among the several schools . . . . . The right of jabr, in its harsher form, terminates practically with puberty."

14. Again, on page 250 Ameer Ali observes that: "Among the Hanafis the mother is entitled to the custody of her daughter until she arrives at puberty; among the Malikis, Shaf'eis and Banbalis the custody continues until she is married, . . . Fatawa‑i‑Alamgiri which gives the opinions of several jurists, points to the conclusion that thz right of Hazanat terminates when the girl is marriageable. The Malik is hold that it should continue until she is actually married."

15. The subject is dealt with in the Fatawa‑i‑Alamgiri from pages 400 to

403. On page 402, it is stated that when the daughter attains puberty, then the right of her custody passes to the assubat, and they can keep her with them until such time as she reaches the age of discretion. This rule is the same as stated by Baillie, and referred to in paragraph 12 above.

16. In the compilation of Tagore Law Lectures, 1891‑92, Volume II, by Muhammad Yusoof Khan Bahadur, on page 263, the position with regard to the termination of guardianship is stated in the same terms as by Baillie.

17. It will be seen that the consensus of opinion among Muslim Jurists appears to be that the guardianship of the father or, in his absence, of the other male relatives, in the order specified, terminates when the child attains the age of discretion, i.e., Sinee Rushd. On reaching that age the child is emancipated from the control of his guardian and is to be regarded as major or sui juris for all purposes. As a general rule, the age of dis cretion or majority and the age of puberty are equated, with the result that majority is attained at the age of fifteen years, except in a case where the child is not of ripe discretion at that age, in which case guardianship would extend until he attains a ripe discretion.

18. Now, in the present case, if the rule of decision was only the personal law of the minor, then it is clear that Mst. Aisha Bibi having attained the age of fifteen years, and there being nothing to show that she is not of ripe discretion, she would have to be regarded as major and emancipated from the authority of the natural guardian, namely, her father. However, as already observed, the application of the personal law in the matter of minority and guardianship is, as provided in section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 19‑2), subject to the provisions of "any enactment for the time being in force". We may first examine the effect of the Majority Act, 1875, according to which Mst. Aisha Bibi continues to be a minor until she attains the age of 18 years. Section 2 of the Majority Act gives the exceptions to this rule, namely, in the matter of marriage, dower, divorce, adoption, religion, religious rites and usages etc., but in the present case we are not concerned with any of these matters. In most of the text‑books to which reference has been made in the earlier part of this order, the learned authors have assumed that minority of a Muslim child continues until the age of 18 years and that the child would be regarded as subject to the guardianship of the father until he or she attains that age. For instance, in section 348 of Mulla's Principles of Muhammadan Law, Fifteenth Edition, it is stated that: "In this Chapter, `minor' means a person who has not com pleted the age of eighteen years." In the note below this section the learned author observes: "According to the Islamic law, the minority of a male or female terminates when he or she attains puberty. Among the Hanafis and the Sbias, puberty is presumed on the completion of the fifteenth year . . . Under the Muhammadan Law any person who has attained puberty is entitled to act in all matters affecting his or her status or his or her property. But that law has been materially altered by the Indian Majority Act, and the only matters in which a Muhammadan is now entitled to act on attaining the age of fifteen years are (1) marriage, (2) dower and (3) divorce. In all other matters his minority continues until the completion at least of eighteen years. Until then the Court has power to appoint a guardian of his person or property or both under the Guardians and Wards Act."

19. In "Islamic Law in Theory and Practice" by Aziz Ahmad, 1956 Edition, the same definition of the term "minor" is adopted as is given in the Majority Act (page 266) and, I think, it is assumed in the subsequent discussion that the guardianship of the father will continue until the age of majority as laid down by the Majority Act, 1875, is attained. The same appears to be the case in Tyabji's book on Muhammadan Law. In section 229, after stating that under the law of Islam persons of either sex are minors till they attain puberty, the learned author refers to the provisions of the Indian Majority Act, 1875, and points out that these provisions, however, do not affect the capacity of any person to act in the matters of marriage, dower, divorce, etc.

20. The question of the effect of the Majority Act, 1875, on the personal law applicable in the matter of minority and guardianship came up for consideration in Reade v. Krishna (I L R 9 Mad. 391) before a Division Bench of the Madras High Court as early as 1886. In that case, a Brahman boy, 16 years of age, having left his father's house went to and resided in the house of a Missionary, where he embraced Christianity and was baptized. The father filed a suit to recover possession of his son from the Missionary. One of the contentions raised before their Lordships was that the boy was no longer a minor under the Hindu Law and, therefore, the father had no right to his custody. Dealing with this contention their Lordships observed as follows on page 397 of the Report:‑ "Nor do we see our way to uphold the contention that it is the Hindu Law and not Act (IX of 1875) that governs this case in regard to the age at which minority ceases. It is no doubt true that under Hindu law a boy or girl was sui juris on the completion of his or her 16th year, but Act (IX of 1875) altered this. The Act is applicable to all persons domiciled in British India and it provides (section 3, paragraph 2) that every person domiciled in British India shall be deemed to have attained his majority when he shall have completed his age of 18 years and not before. The suit before us is one brought by the father to enforce his parental right to the custody and control of his minor son, and as that right is an incident of guardianship, and as it is not excepted from the operation of the Act, we cannot say that the case falls to be decided under Hindu Law as to the age of majority. The personal law applicable to Hindus has been repealed, and a territorial law has been substituted for it, and our decision must be in accordance with the latter. As a minor may be sui juris for some purposes, though not for others, the next question for decision is whether the father's right is specially taken away by the Act in any case . . . . . . The construction (of section 2 of the Majority Act) suggested for the appellant is that when a Hindu youth of 16 changes his religion, his father's right to custody ceases and adopting as we must do, the finding of the District Judge that the youth had completed his 16th year, he was according to Hindu Law sui juris and therefore competent to change it; still this would not affect the right of the father to the custody and control of his minor son, and that right is not taken away by the Act; and in this suit the question with which we have to deal is, as the District Judge very properly remarks, not a question of interference with the right of a Hindu son to change his religious persuasion, but whether a Hindu father is entitled to the custody of his son and to such control over him as he may lawfully be entitled to exercise."

21. This decision was followed by the same High Court in Mohideen Ibrahim Nachi v. L. Mahomed Ibrahim Sahib ((1916) 33 I C 894). The minor in this case was a Muslim boy, between 15 and 16 years of age, and the applicant under section 25 of the Guardians and Wards Act was his father. One of the contentions raised was that the parties being Shafeis and the boy being 16, he had a discretion in law to reside with his mother and in her absence with his grandmother. After dealing with Shafei Law as laid down in various text‑books on the subject, their Lordships of the Division Bench observed thus: "The Shafei Law also seems to fix the age of 15 as the age of majority unless signs of puberty have shown themselves earlier (but not earlier than 9). In Reade v. Krishna I L R 9 Mad. 391 it was held that though under Hindu Law the father is not entitled to the custody of the person of his son after the boy attained 16 years of age, the passing of the Indian Majority Act of 1875 (section 3) by continuing the minority of the boy till he completed the 18th year of his age, extended the right of the father to the custody of the boy's person till such age of.

18. Notwithstanding the able arguments of Mr. Srinivasa Aiyangar that that decision is unsound so far as it deals with the right of a Hindu son to personal emancipation from the Patria Potestas after he attains his 16th year, I am not prepared to dissent from that decision, especially as section 2, clause (c), of the Indian Majority Act impliedly affects the `capacity' in all ways of any person who had not attained majority under the law applicable to him before 2nd March 1875, other than in respect of the matters excepted in the section. If notwithstand ing the personal emancipation under Hindu Law, a Hindu boy continues under the custody of his father till 18, Mussalman boy also is bound to remain in the custody of his guardian till he attains 18 notwithstanding that under the Shafei Law to which he is subject, his personal emancipation would have taken place when he attained the age of 15 or when he attained puberty between the ages of 9 and 15."

22. In re: Lovejoy Patell and another ((1918) 44 I C 293), it was observed that: "Under the Mussalman Law, any person Who has attained puberty is entitled to act in all matters affecting his or her status or his or her property. This indigenous Mussalman Law has been materially altered by the Indian Majority Act and the only matters in which a Mahomedan is now entitled to Act on attainment of puberty are marriage, dower and divorce. In all other matters his minority continues until the completion of 18 years."

23. Another case which is of some indirect assistance in this connection is Abi Dhunimsa Bibi Ammal v. Muhammad Fathi Udini Sahib and others (A I R 1944 Cal. 433). While examining the effect of the Majority Act on the relinquishment of dower by a Muslim girl, their Lord ships observed that: "The Majority Act should not be construed so as to deprive a person of rights which he would otherwise be entitled to, The injunction of Mahomedan Law which prevents acts being done by a minor to his prejudice must be taken to operate till the age at which the minor attains majority under the ordinary law of the land." Their Lordships further observed: "When the Legislature by section 2 of the Majority Act permitted a person to act in the matter of dower it only intended to allow that person who was not otherwise competent under the ordinary law to act in that matter to initiate the religious acts or ceremony which under the personal law he or she was capable to initiate. The legal consequences flowing from this primary Act were not intended to be controlled by the section." It would be seen that the scope of the exceptions mentioned in section 2 of the Majority Act was restricted so as to confer maximum protection on the minor.

24. I find myself in respectful agreement with the view adopted by their Lordships of the Madras High Court in the case of Reade v. Krishna. We have already noticed that under the Muslim Law the period of guardianship of the father extends to the attainment of majority by the minor, and majority is attained, under the Muslim Law when the minor becomes of ripe discre tion. The Majority Act has clearly superseded this concept of the Muslim Law by fixing a definite age, namely, 18 or 21 years as the case may be, at which majority shall be attained by 411 citizens, irrespective of their religion. The only exception contemplated by the Legislature are in the matter of marriage, divorce, dower, adoption, religion or religious rites; with regard to all other matters the Majority Act is to operate. That being the case, the parental authority vesting in the father under the personal law applicable to the minor, would continue to exist until the minor attains emancipation from that authority, by becoming a major under the general law of the land. I canny persuade myself to hold that while enacting the Majority Act; 1875, the Legislature intended to create a vacuum in the matter of guardianship of Muslim children between the age of 15, when they would attain puberty or majority under the personal law, and the age of 18 when they would attain majority under the law of the land. Except in the matters specified, the Majority Act places definite disabilities on persons below the age of 18; for example, in the matter of management of property, entering into contracts and so on. If, therefore, the view be accepted that the authority of a Muslim father ceases when the child attains the age of 15, then for a period of three years there will be no person competent to deal with the minor's property or to enter into contracts on his behalf or to look after his person unless a guardian is appointed by a competent Court of Law.

24. That brings us to a consideration of the effect of the Guardians and Wards Act. According to clause (b) of section 19 of the Act, no guardian can be appointed or declared in the case of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor. This section clearly assumes that the father is in every case the natural guardian of his children and, therefore, in his lifetime no person can be appointed or declared to be a guardian, unless, of course, the father is unfit. If the view advocated on behalf of the respon dent in this case is adopted, namely, that the guardianship of the father has ceased at the age of 15, then the result would be that the minor would be left without the protection of any guardian, as section 19 would be a bar to the appointment of any other person as a guardian during the lifetime of the father. This bar applies to a mother as well, and it is no argument to say that the mother will continue to be the de facto guardian of the minor's person, for even the mother's right to the custody of her daughter up to the age of puberty is created under the Muslim Law. If there can be no extension of the guardianship of the father by applying the general law of the land, the same would hold good in the case of the mother.

25. Mr. Akhlaque Hussain, appearing for the minor, con tended that section 41 of the Guardians and Wards Act clearly contemplates the cessation of the authority of a guardian and, therefore, there would be nothing unusual in the authority of the father ceasing on the minor attaining the age of

15. It seems to me, however, that the learned counsel has overlooked that the section lays down definite contingencies or situations in which the authority of the guardian would cease. There is no clause regard ing the cessation of the authority of a father on the minor attaining the age of majority under the personal law applicable to him. On the contrary, clause (c) of subsection (1) of section 41 says, "by the ward ceasing to be a minor", the word "minor" being clearly used in the sense in which it has been defined in the Act, namely, as understood in the Majority Act, 1875. Further, in clause (e) of subsection (1) it is contemplated that the powers of a guardian of the person would cease in the case of a ward whose father was unfit to be guardian of the person of the ward by the father ceasing to be so, or if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court. This provision clearly indicates the anxiety of the framers of this Act to restore the guardianship of father as soon as the father is fit to assume that responsibility. The cumulative effect of sections 19 and 41 of the Guardians and Wards Act is, to my mind, clearly to declare, in unambiguous terms, that if a father is alive and is not unfit, then he must be deemed to be the E natural guardian of his children, until they attain the age of 18 years. In other words the father must be regarded as the natural guardian of his children, both male and female, until they attain the age of 18 years. The view that a Muslim father must be regarded as the natural guardian of his minor children also finds support from the decisions in Bai Tara v. Mohanlal and others (A I R 1922 Bom. 405), Mst. Ulfat Bibi v. Bafati (A I R 1927 All. 581) and Mst. Bevi v. Shah Nawaz Khan and others (P L D 1961 Lah. 509).

26. Thus, after a consideration of the provisions of the Hanafi Law, the Majority Act, 1875, and Guardians and Wards Act, 1890, as well as the case‑law referred to above, I have come to the conclusion that a Muslim father is the legal and the natural guardian of his children until they attain the age of majority under the general law of the land, namely, Majority Act, 1875, i.e., 18 years. The mother has the right of custody or Hizanat up to the age of seven years in the case of a male child, and up to the age of puberty, i.e., 15 years, in the case of a female child. Even during this period, the right of Hizanat or custody is to be exer cised under the supervision and control of the father, who is responsible for the maintenance of the children. The right of Hizanat can be lost under certain circumstances, but in the present case we are not concerned with that aspect of the matter. The father has always to be regarded as having the constructive custody of his children, although the actual or physical custody may be with the mother or some other female relative, or some other person nominated by the father.

27. We may now take up the second objection, raised in the written statement, to the effect that as the minor in this case never remained in the custody of the petitioner ever since her birth in the house of her maternal grandfather, therefore, the question of her leaving the petitioner's custody or her being removed therefrom does not arise. There is no doubt that some cases do lay down that in order to attract the application of section 25 of the Guardians and Wards Act there must be actual physical custody, but that view has since long been superseded. One may refer to Mst. Ghuran v. Syed Riaz Ahmad (A I R 1935 Oudh 492), in which it was held that: "Hizanat is only custody for rearing up a child. Although the maternal grandmother has the right of Hizanat under the Mahomedan law, yet the father is responsible for providing funds for the maintenance of the minor and is her natural guardian. Thus he must be deemed to have the care of the person within the meaning of the definition of `guardian' in section 4, Guardians and Wards Act, even though the minor is not in his actual physical custody. The right of Hizanat is, therefore, liable to forfeiture in a case where the Hizana wilfully prevents the father, the natural guardian of the minor, from having anything to do with minor." The same view was expressed in Mst. Ulfat Bibi v. Bafati (A I R 1927 All. 581), Mst. Nazir Begum v. Ghulam Qadir Khan and others (A I R 1938 Lah. 313), and more recently in Muhammad Bashir v. Mst. Ghulam Fatima (P L D 1953 Lah. 73), as well as in Noor Jehan Begum v. Mufti Muhammad Sami (P L D 1956 Kar. 397). It is clear, therefore, that in order to invoke the provisions of section 25 of the Guardians and Wards Act, it is not necessary for a Muslim father to show that he had the actual custody of the minor, which the latter has left or from which it has been removed. As the minor is deemed to be in the constructive custody of the father, there would) be removal within the meaning of section 25 of the Act, when a person who has the actual custody of the minor refuses to hand over the said minor to the father.

28. For the reasons given above, the preliminary issue regard ing the competence of the present petition by the father it Muhammad Sadiq is decided in his favour, and against the respondent. The case shall now proceed on merits. A. H. Preliminary objections disposed of.