JUDGMENT
1. 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 under Section 25 of the Guardians and Wards Act. Parties were married on 14.12.1941 and have-four children, Mumtazucnisa aged about seven years, Ghiasunnisa aged about five years, Jameelunnisa aged about three years, and Ravaofuddin aged about one year and ten months. Ghiasunnisa and Ravoofuddin 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, Ravoofuddin, 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. 2,000 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.
2. The main attack of the respondent is against the uncle of the petitioner who is stated to be an 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.
3. The petition is also opposed on the ground that a petition under Section 25 of the Guardians and Wards Act in the circumstances is not maintainable, since the respondent, being the father and not the petitioner who is the mother, in the natural guardian as well as the legal guardian; and as such S. 25, 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, 45 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 Rex 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 S. 257 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”.
4. 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. S. 28, Guardians and Wards Act provides that:
“If 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 make 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.”
5. Relying on the language of S. 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 Law, the 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’ under 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 under S. 25. It is sufficient if she is a person having the care of the person of the micors. It is therefore for aonsideratron 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 under 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 guar than, who is the father. But 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 under S. 25 of the Act is maintainable if there has been re moval by the respondent of these two children from her custody.
6. 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.
7. The question of maintainability of a petition of this nature has been considered in the decisions: Noshirwam Manekshaw v. Sharaoshbanu Noshirwan, A.I.R(21) 1934 Bom 311 and Venkataram Ayyangar v. Thulasi Ammal, 1949-2 Mad L. Jour. 802. Both the decisions hold that the word ‘guardian’ in S. 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 guirdian or even a de facto guardian. In view of this, the correct conclusion that could be arrived at on a reading of S. 4(2) is that the petitioner is a guardian as defined in the Act. I therefore find that the petition is maintainable.
8. The other objection is that even though the mother is entitled to hizanat, she has lost that right by reason of her having gone and resided 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 Road and the respondent in Triplicate, 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 Mahomedan 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.”
9. Wilson in his Anglo Mahomedan Law mentions the same four categories of disqualifications. Wilson says at page 185 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.”
10. 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.”
11. 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 as 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.”
12. 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.
13. 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 show 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 Btgam v. Jawwad Ali, 1934 All. L. Jour 399 where the mother was living in Lucknow and the father in Gorakhpur and it was held that the mother had the preferential claim under the Hanafi Law. In Mt. Saktna Begam v. Malka Ara Begum, A.I.R(35) 1948 All. 168 a Bench of the Allahabad High Court held as follows:
“According to the Hanafi Law as between a mother and a lather, the mother has a preferential claim to the custody of their children. It cannot be laid down as an absolute proposition that she loses the right of custody if she goes and resides at a distance from the fathers place. It all depends upon circumstances. If the stay is only temporary or is forced or is due to circumstances-beyond her control, it 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 of character such as would render her unfit to have the custody of her own child.”
14. 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.
15. 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.
16. In Hamilton's Musealman Laws at p. 388, dealing with the length of the term of Hizanat, Hamilton says as follows:
“The right of Hizanat, with respect to a male child, appertains to the mother, ‘grandmother, or so forth, until he becomes independent of it himself, that is toss, become capable of shifting, eating, drinking, and performing the other natural functions without assistance; after 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 says 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 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 reunions are most competent; but after that period the charge of her property be longs to the father because a girl, after maturity, requires some person to superintend her conduct, and to this the father is mostly completely qualified.”
17. This statement of law, though applicable to those professing the Hanafii 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.
C.R.K/K.S
18. Application allowed.
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