1. This is an appeal by one Rafiq, a Muslim father, against an order of the Civil Judge Bundi passed under Section 25 of the Guardians and Wards Act, directing him to deliver the custody of his 31/2 year old daughter to his wife's mother's father's sister Smt. Bashiran.
2. Rafiq divorced the minor's mother Smt. Gulshan on 12-1-59. After the divorce the minor remained in the custody of her mother who was living with her father Bahairddin. Smt. Gulshan however remarried on 29-7-60 and went to live with her husband leaving her minor daughter with her father Bahauddin. According to the finding of the learned Senior Civil Judge Rafiq took away his minor daughter from the house of Bahauddin without his consent. The present application under Section 25 of the Guardianship Act was then filed on 1-8-60 by Bahauddin's sister Smt, Bashiran. This application was granted by the learned Senior Civil Judge on the ground that under the Mahomedan Law Smt. Bashiran had a preferential right to the custody of the minor, being the maternal aunt of her mother.
According to Tyabji's Mahomedan Law, Third Edition, Section 236 (at page 275) the following persons have a preferential right over,the father to the custody of (sic)minor girl before she attains the age of puberty:
1. Mother's mother.
2. Father's mother.
3. Mother's grandmother howsoever high.
4. Father's grandmother howsoever high.
5. Full sister.
6. Uterine sister.
7. Daughter of full sister, howsoever low.
8. Daughter of uterine sister, howsoever low.
9. Full maternal aunt, howsoever high.
10. Uterine maternal aunt, howsoever high.
11. Full paternal aunt, howsoever high.
The learned Senior Civil Judge ignored the provisions of Section 19 of the Guardians and Wards Act, which runs as follows:
"Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian ef the person--
(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or
(b) 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, or
(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor."
He did not come to a finding that the father is unfit to be the guardian of the person of the minor.
It may be mentioned here that where the provisions of the personal law are in conflict with the provisions of the Guardians and Wards Act the latter prevail over the former. It is only where the provisions of the personal law are not in conflict with the provisions of the Guardians and Wards Act that the Court can take into consideration the personal law applicable to the minor in the appointment of a guardian. The provisions of Section 19 of the Guardians and Wards Act prevail over the provisions of section 17, which runs as follows:
"(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, 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.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) The Court shall not appoint or declare any person to be a guardian against his will."
3. In Mt. Siddiq-Un-Nissa Bibi v. Nizam-Uddin Khan, ILR 54 All 128 : (AIR 1932 All 215), Sulaiman Acting C. J. observed at page 134 [of ILR All) : (at p. 217 of AIR) :-
"The personal law has been abrogated to the extent laid down in the Act. Where, however, the personal law is not in conflict with any provision of the Act, I would not be prepared to hold that it has necessarily been superseded."
and at page 131 (of ILR All) : (at p. 216 of AIR--
There can be no doubt that so far as the power to appoint and declare the guardian of a minor under Section 17 of the Act is concerned, the personal law of the minor concerned is to be taken into consideration, but that law is not necessarily binding upon the Court, which must look to the welfare of the minor consistently with that law. This is so in cases where Section 17 applies. In such cases the personal law has to this extent been superseded that it is not absolutely binding on the Court and can be ignored if the welfare of the minor requires that some one else, even inconsistently with that law, is the more proper person to be appointed guardian of the minor. Section 19 then provides that
Nothing in the chapter shall authorise the Court ......... to appoint or declare a guardian of the person (a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or (b). ......
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, or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.
The language of the section, as it stands, obviously implies that when any of the three contingencies mentioned in the sub-clauses exists there is no authority in the Court to appoint or declare a guardian of the person of the minor at all; that is to say, the jurisdiction of the court conferred upon it by Section 17 to appoint or declare a guardian is ousted where the case is covered by Section 19.
4. There is nothing on record to show that the father of the minor is unfit to be the guardian of her person. As was observed in B. N. Ganguly v. C. H. Sarkar, AIR 1961 Madh-Pra 173 there is a presumption that the parents will be able to exercise good care in the welfare of their children.
5. I am accordingly of the opinion that Rafiq is entitled to retain the custody of the minor. The appeal is therefore allowed and the order of the Court below allowing the application of Smt. Bashiran under Section 25 of the Guardians and Wards Act is set aside. In the circumstances of the case, I direct that parties shall bear their own costs of these proceedings throughout.
6. The minor was delivered to the custody of Smt. Bashiram under the orders of the Court below. She shall deliver back the custody of the minor within 15 days failing which the learned Senior Civil Judge will issue a warrant for the recovery of the minor under Section 100 of the Code of Criminal Procedure.