Citation Codes

Equivalent Citations

citation codes

Case Number

O.P No. 329 of 1950

Advocates

For the Appellant: S. Azizuddin, Syed Mohammad, Advocates.

Judges

Krishnaswami Nayudu, J.

Acts

See more information ...

Smart Summary

Structured Summary of the Opinion (Guardianship Removal Application)

Factual and Procedural Background

The petitioner (the father of the minor) applied for removal of the respondent, Mujeebunnissa Begum (the mother and current guardian), from guardianship of the person of the minor and for appointment of himself as guardian. The respondent was previously appointed guardian by this Court in O.P. No. 59 of 1947 by an order dated 20-3-1947, with the petitioner's consent; the minor was then about two years old. Subsequent proceedings under Section 488 of the Criminal Procedure Code fixed monthly maintenance of Rs. 12/-, which the opinion states "is still in force."

The petitioner's present ground for removal is that the respondent has married a second husband and, under Muhammadan (Muslim) law, a mother who marries a second husband forfeits the right to custody (hizanat) and, the petitioner contends, the right to be guardian while the father is alive. The present application seeks removal of the respondent from guardianship on that basis.

Legal Issues Presented

Whether a mother who has married a second husband forfeits her right to the custody (hizanat) of the minor and thereby forfeits her right to be guardian of the person of the minor under the personal law applicable (Muhammadan law).
Whether, consistent with Section 17 of the Guardians and Wards Act (the Court being guided by the welfare of the minor "consistently with the law to which the minor is subject"), the father should be appointed guardian instead of the mother who remarried.
Whether the mother's remarriage constitutes a valid ground for removal of an already-appointed guardian under Section 39 of the Guardians and Wards Act ("by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject").
Whether the petition is maintainable or is an attempt to escape maintenance liability (i.e., whether there is an ulterior motive).

Arguments of the Parties

Petitioner's Arguments

The petitioner applied for removal on the ground that the respondent, having married a second husband, has forfeited her right to be the guardian under the personal (Muhammadan) law applicable to the parties.
The petitioner relies on the legal principle (as stated in authority and treatise) that a mother who marries a second husband loses the right to custody (hizanat) and that the father is the legal guardian while alive.

Respondent's Arguments

The respondent contended that the mother is entitled to hizanat (custody) until the minor attains puberty and that this right is not taken away by her marriage to a second husband. The respondent relied on observations in Jumina Khatun v. Gaharajan Bibi.
The respondent argued that the petitioner (father) is unfit to be guardian: he had allegedly treated the mother brutally, might lack affection for the child, the child has indifferent health requiring medical treatment (which the respondent is best placed to provide), and the petitioner's character was attacked as being loose.
The respondent suggested the petition might be instituted to escape maintenance liability already fixed by the Criminal Court; in other words, that the petition was not maintainable and had an ulterior motive.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ulfat Bibi v. Bafati, 49 All 773	The proposition that a mother is entitled to hizanat (custody) of a male child until seven and a female child until puberty, but that where the mother marries a second husband she loses the right to custodial hizanat and custody then belongs to the father.	The Court relied on this authority (and the approving statement in Mulla's text) to hold that because the respondent had married a second husband she had forfeited her right to be guardian of the person of the minor under the personal law applicable.
Jumina Khatun v. Gaharajan Bibi, 76 Cal L Jour 303 (pp. 303–305)	Observation that the Muhammadan Law does not lay down that a woman who had married a stranger to the minor is "disqualified" from being appointed guardian under any circumstances; rather, marriage to a stranger may only extinguish a preferential right but does not bar appointment where no preferable person exists and welfare dictates.	The Court distinguished this decision: it concerned a maternal aunt and the question whether she was disqualified where no preferential relation existed; it did not decide the question whether a mother forfeits the right to be guardian by remarriage. The Court therefore did not treat it as controlling on the present point concerning the mother.
Sami-un-nissa v. Saida Khatun, ILR (1944) All 368	Relied on Section 17 of the Guardians and Wards Act; emphasizes the Court's primary consideration is the welfare of the minor and that appointment of a stranger is permissible if more suitable persons cannot be found, and that Muhammadan Law does not forbid such an appointment.	The respondent relied on this case to argue that remarriage does not automatically disqualify a woman and that welfare may permit appointment despite remarriage. The Court acknowledged the welfare principle but applied it consistently with the applicable personal law and preferred the father's claim here.
Mulla, Principles of Mahomedan Law (13th ed.), p. 295 (treatise)	States the rule: "The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father."	The Court cited and relied on this treatise's statement (which approves Ulfat Bibi) when concluding that the mother, by remarriage, had forfeited the custodial right and thereby could be removed as guardian under the relevant statutory ground.

Court's Reasoning and Analysis

The Court began by stating the applicable Muhammadan law principle regarding custody (hizanat): the mother is entitled to custody of a male child until age seven and of a female child until puberty, but the legal guardian is the father. The Court observed that this custodial right continues after divorce unless the mother marries a second husband, in which case custody belongs to the father. That principle was drawn from Ulfat Bibi v. Bafati and is recorded in Mulla's treatise.

The Court addressed the respondent's reliance on Jumina Khatun v. Gaharajan Bibi and similar observations that remarriage to a "stranger" does not always disqualify a woman from appointment. The Court carefully distinguished that authority: Jumina Khatun concerned a maternal aunt and dealt with whether such a relation, having married a stranger, was disqualified from appointment when there was no preferential person available. The court in that case emphasized the welfare of the minor and did not hold that remarriage universally disqualifies a woman from guardianship. The present issue, by contrast, was whether a mother (a primary preferential person) forfeits the right to be guardian by marrying a second husband.

The Court also considered Sami-un-nissa v. Saida Khatun in which Section 17 of the Guardians and Wards Act and the welfare principle were emphasized. The Court accepted that welfare is the paramount consideration but clarified that the welfare determination should be made "as far as possible consistent with the personal law relating to the parties" and that preferential claims under the personal law cannot be ignored unless the preferential person is totally unfit.

Applying the law to the facts, the Court held that by reason of her marriage to a second husband the respondent had forfeited her rights to custody and thus her right to be guardian under the personal law. The Court then examined the petitioner's fitness: allegations of brutality and loose character were considered, but the Court found no material evidence rendering the father unfit. The petitioner was a government-employed lecturer with a steady income; he had also married a second wife but had no issue by her—this was held not to be materially adverse to his claim.

The Court also addressed the contention that the petition was instituted to evade maintenance liability. The Court stated it was not satisfied that an ulterior motive was present and observed that the petitioner, as the legal guardian, naturally wishes custody of the child.

As to statutory grounds for removal, the Court relied on Section 39 of the Guardians and Wards Act, which permits removal where the guardianship has ceased or is liable to cease under the law applicable to the minor. Finding that the respondent's guardianship had ceased under the personal law by her remarriage, the Court concluded removal was justified. The Court therefore ordered removal of the respondent from guardianship and appointed the petitioner as guardian of the person of the minor, directing delivery of custody by a specified date.

Holding and Implications

Holding: The application was allowed. The Court removed the respondent (mother) from guardianship and appointed the petitioner (father) as guardian of the person of the minor. The respondent was ordered to deliver custody of the minor on or before 15th February 1951. The Court made no order as to costs.

Implications: The direct effect of the decision is the transfer of custody and legal guardianship from the mother to the father in this specific case. The Court applied established principles of Muhammadan law (as in Ulfat Bibi) together with the statutory framework (Sections 17 and 39 of the Guardians and Wards Act) and the welfare standard to reach its conclusion. The opinion does not purport to set out broader novel precedent beyond applying these existing authorities and statutory provisions to the facts before the Court.

Order extracted from the opinion: "Application allowed." (with removal of respondent and appointment of petitioner as guardian; delivery of custody directed by 15th February 1951; no costs).

Show full summary ...

Mir Mohamed Bahauddin v. Mujee Bunnisa Begum Sahiba .

1. The father of the minor applies for removal of the present guardian Mujeebunnissa Begum, who is the mother of the minor, from guardianship, and for appointment of himself as the guardian of the person of the minor. The present guardian, who is the Respondent, was married to the Petitioner and owing to certain differences there was a divorce of this marriage. She applied in O.P No. 59 of 1947 for appointment of herself as the guardian of the person of the minor, who was then a child of about two years of age. The Petitioner consented to her being appointed and by an order of this Court dated 20-3-1947 made in the said O.P No. 59 of 1947, the present Respondent was appointed as the guardian of the person of the minor. Subsequent to this, there were certain proceedings in the Presidency Magistrate's Court under Section 488 of the Cr PC for orders as maintenance of the-minor and a sum of Rs. 12/- was fixed as the monthly maintenance to be paid to the Petitioner. The said order is still in force. It is now stated that the Respondent has married a second husband and by him she has-now a female child and that under the Muslim Law, the mother is not the natural guardian, while the father is alive, and that by virtue of the second marriage, she has forfeited her right to be the guardian of the person of the minor and to have her custody. The present application is for removal of the Respondent from the guardianship on the ground that she has forfeited her right to be the guardian under the personal law applicable to the parties.

2. The custody, or what is called ‘hizanat’ of a minor girl until she attains puberty and of a minor boy until he attains the age of 7 years is with the mother. But even then the legal guardian is only the father. The right to the custody of the minor girl until she attains puberty continues with the mother, though she is divorced by the father of the child. However, the mother cannot continue to have the custody of the child, if she marries a second husband, in which case the custody belongs to the father. This is the proposition that has been laid down in ‘Ulfat Bibi v. Bafati’, 49 All 773, Mulla in his book on Principles of Mahomedan Law's 13th Edition, page 295 states as follows:

“The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.”

3. The principle laid down in ‘Ulfat Bibi v. Bafati’, 49 All 773 has been approved by the-author in his book, referred to. There is no dispute as to the Petitioner being the legal guardian. But it is contended on behalf of the Respondent that the mother is entitled to hizanat or custody until the minor attains puberty and that this right is not taken away, even if she marries a second husband. That is contrary to what is laid down in ‘Ulfat Bibi v. Bafati’, 49 All 773. But the learned counsel relies on certain observations made in ‘Jumina Khatun v. Gaharajan Bibi’, 76 Cal L Jour 303 at p. 305. In that case-a maternal aunt was held to have a preferential right to the custody of the minor over that of paternal grandmother. It was held that having regard to the welfare of the minor, a maternal aunt who has married a stranger, in the absence of any preferential person, is not disqualified from being appointed guardian of the minor, that the Mahomedan Law does not lay down that a woman who had married a stranger to the minor is disqualified from being appointed a guardian under any circumstances and that it merely lays down that such a woman loses any preferential right which she had by virtue of her relationship to the minor. The question that arises in this case is not whether by reason of the marriage to a stranger the mother loses the right to continue to have the custody of the minor, but whether she has forfeited her right to be the guardian by virtue of her second marriage. That is not the point that was considered in that decision.

4. The Mahomedan Law fixes the order of preference “as regards custody in the case of a boy under the age of seven years and of a girl who has not attained puberty as follows: failing the mother, mother's mother, how high soever; father's mother, how high so ever; full sister; uterine sister; consanguine sister and so on in the order prescribed; and only such female relation in the said order of preference would be entitled to the custody of the minor. But she loses the right to custody under certain circumstances—if she marries a person not related to the child within the prohibited degrees e.g a stranger; or, if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or, if she is leading an immoral life, as where she is a prostitute; of if she neglects to take proper care of the child.

5. The question that arose for decision in ‘Jumina Khatun v. Gaharajan Bibi’, 76 Cal L Jour 303, was whether by reason of her marriage to a stranger, the maternal aunt was disqualified to be the guardian, and Sen J. observed as follows:

“The Mahomedan Law nowhere directs that a woman having minor relations should always marry the relations of such minors or that the marriages of such a woman with strangers are looked upon with disfavour. It laid down this rule regarding the custody of the minors by females in order to protect them as far as possible from harsh treatment by strangers. Further the passages in Bail-lie and the Hedaya stating a woman loses the right of Hizanit by marriage with a stranger to the minor occurs where the question of the preferential right of guardianship is being discussed. It is nowhere suggested that where there are no other eligible relations the Judge cannot appoint a woman who has lost her right of hizanit by her marriage to a stranger. The word ‘disqualified’ is nowhere used. I do not consider therefore, that the Mahommedan Law lays down that a woman who had married a stranger to the minor is ‘disqualified’ from being appointed a guardian under any circumstances.”

6. Considering the welfare of the minor, the maternal aunt was held to be not disqualified from being appointed guardian of the minor, in the absence of any preferential person, though she has married a stranger.

7. To a similar effect is the decision in ‘Sami-un-nissa v. Saida Khatun’, ILR (1944) All 368, relied on behalf of the Respondent. In that case the learned Judge relied on section 17 of the Guardians and Wards Act and held that the primary consideration for the Court is the welfare of the minor, that it is open to the Court to appoint a stranger, if it cannot find a more suitable person and that there is no provision of Muhammadan Law, which forbids such appointment.

8. In ‘Uifat Bibi v. Bafati’, 49 All 773, as in the present case, the mother married a second husband, and she was held disentitle to have the custody of the child. The learned Judges observe as follows:

“We are of opinion that a woman who has been divorced, if this appellant has been divorced, and has married a second husband is not a person either herself better suite than the father, however unsuitable the father may be, and not a person who ought to be heard to say that the father is unsuitable She has abandoned her home and husband either by her own free will, or as the result of her conduct, and in the eyes of the law sh has lost the right to assert a claim against the father for the child and probably the right assert this appeal.”

9. Though it cannot be stated that however ??? suitable the father may be, he may be appointed in preference to the mother, or any other near relation or stranger, certainly the mother, who has chosen to leave the father—though in this case under alleged ill-treatment—is not the person to whom the child could be entrusted, since it is unlikely that a woman who has married a second husband would be in a position to pay as much attention to the upkeep and well being of the child as she would, if she had not taken to a second husband. It cannot be denied that she is answerable to the husband primarily and to look after his comforts and answer his behests and, whatever attention she may bestow on the child could only be after she has been of such service to the second husband as he would require. In my view, unless the father is totally unsuitable, or there is any other relation who would take charge of the child, the mother who has married a second husband, is not at all the person to whom the child of the first marriage should be entrusted. It would be impossible for her under her changed circumstances to look after the child and care for her well-being.

10. section 17 of the Guardians and Wards Act provides that the Court should be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. The paramount consideration in cases coming up under the Guardians and Wards Act or appointment of guardian should be the welfare of the minor. But it must be as far as possible consistent with the personal law relating to the parties. The preferential right of any person to the guardianship cannot be ignored unless he is totally unfit to be appointed as guardian and Courts must necessarily consider his claims in preference to any others. If in this case, keeping in view, the welfare of the minor, no other person than the father could be considered as a fit person to be appointed as guardian there is no reason why the father should be passed over as he is also guardian under the personal law.

11. It is argued strenuously on behalf of the Respondent that the Petitioner is unfit to be the guardian, since he has brutally treated the mother and it is not likely that he will have any affection for the child, that the child is of indifferent health and often put to medical treatment and that the Respondent alone can bestow the necessary attention. Further, his character is attacked as being loose. But it must be noticed that apart from the treatment which he is alleged to have meted out to the mother, there is nothing against the father personally otherwise. He is an official in Government service employed as a Lecturer in Government Central Polytechnic, Madras, drawing a decent salary. He has also married a second wife; but he has no issue by the second wife. That, however, is not a very material circumstance in considering his claims for the guardianship. I do not find on the allegations made in the affidavits filed in this case that he is a person who could not be thought of for the guardianship of the minor. I consider him as a fit and proper person to take charge of the custody of the minor. It is also the duty of the legal guardian to look after the child, maintain her, educate and arrange for her marriage all at his cost. To take away the child from his custody and keep her with the mother until she attains puberty and then send that minor to him would be to deprive him of the attachment to the child, which must be cultivated by association and such association must commence at a very early age. It cannot be said that the child is of such tender years that she could not leave the mother's care. The child is about 7 years of age and could very well live with the father and it is stated that the father's mother is in the family to look after the child.

12. It was also argued that the application is not maintainable and that it is filed only with a view to escape the liability to pay maintenance, which the Petitioner is already paying under the orders of the Criminal Court, and that it is an attempt to dispute his liability in a suit which is said to have been instituted in the City Civil Court for the maintenance of the minor. I am not satisfied that the Petitioner has an ulterior motive in filing this Petition. Naturally, he wants to have the child as he is the rightful guardian and is entitled to custody. An argument was advanced that no grounds had arisen for removal of the mother, who has already been appointed as the guardian and unless she could be validly removed, no fresh guardian could be appointed. Section 39 of the Guardians and Wards Act lays down the grounds and circumstances under which a guardian could be removed. One of the grounds on which a guardian may be removed is “by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject.” I have already held that by reason of the marriage with the second husband, the Respondent has forfeited her rights to be the guardian. I therefore remove her from the guardianship and appoint the Petitioner as the guardian of the person of the minor. He will be entitled to the custody of the minor and the Respondent will deliver custody of the minor on or before the 15th February 1951. No order as to costs.

C.R.K/D.R

13. Application allowed.

Mir Mohamed Bahauddin v. Mujee Bunnisa Begum Sahiba .

Structured Summary of the Opinion (Guardianship Removal Application)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mir Mohamed Bahauddin v. Mujee Bunnisa Begum Sahiba .

Comments