JUDGMENT Chaudhuri, J. - These are two applications for the guardianship of the person and property of a Mahomedan infant of the name of Hurunnessa Bibee. I shall first deal with the application of Golam Kadir, the husband of the minor's sister. The Guardians and Wards Act provides that in appointing the guardian of a Mahomedan, no appointment shall be made inconsistent with the Mahomedan Law. The point for me to decide is whether the appointment of Golam Kadir, the husband of the infant's sister, would be consistent with the Mahomedan Law. I am clearly of opinion that it would not. The Rt. Hon'ble Mr. Ameer Ali, in his Mahomedan Law, Vol. II, p. 239 (3rd Ed.) says, "No male has a right to the custody of a female child, unless he is a Mahram, that is, stands to her within the prohibited degrees of relationship and cannot under any circumstances marry her." 2. It is contended on behalf of Golam Kadir that there is no authority for the statement "cannot under any circumstances marry her" in the passage I have quoted. In this connection I was referred to the case of Aizunnessa Khatoon v. Karimunnessa Khatoon I. L. R. 23 Cal. 130 (1895), in which a question arose whether under the Mahomedan Law marriage with the wife's sister, who was legally married, was void or not. It was held that the children of such marriage were illegitimate and could not inherit. In dealing with the question then before the Court, their Lordships referred to the passage I have quoted, but I do not find any authority or sanction for the contention that the words, "cannot, under any circumstances marry her" have been wrongly introduced by the learned author. 3. Wilson's Mahomedan Law, p. 205, sec. 108 (2nd Ed.) was also referred to and Mr. Rahim's book on Mahomedan Law and Mr. Tyabji's, but they throw no light on the point. 4. Now it is conceded that the mother of a Mahomedan infant girl loses her right of guardianship by marrying a stranger. In the case of Yakub Sheikh v. Nafrujai Bibee 11 C. L. J. 633 at p. 634 (1910) it is stated, as seems to be the correct law, that the mother is not disqualified, if she marries one related to the minor within the prohibited degrees. In the case of Yakub Sheikh v. Nafrujai Bibee 11 C. L. J. 633 at p. 634 (1910) it is stated, as seems to be the correct law, that the mother is not disqualified, if she marries one related to the minor within the prohibited degrees. It would be very curious that if the mother were disqualified by marrying a stranger, that a sister would not be thus disqualified, and that a stranger marrying her would be qualified for appointment as guardian. Learned Counsel appearing on behalf of the maternal uncle has placed certain original texts before me with translations, which were circulated among the parties to test their correctness. The texts and translations have not been challenged. . I. The woman entitled to the custody of a child loses her right by marriage with a person not within the prohibited degrees to it, i.e., the minor. (Durr-al-Mukhtar, Vol. II, p. 656, ed. Cairo.) II. "By marriage with a person not within the prohibited degrees to it" :--i.e., whether the marriage is consummated or not. The author [of the Durr-al-Mukhtar] should have said, "a person not within the prohibited degrees on the ground of consanguinity. For, one within the prohibited degrees on the ground of fosterage is like a stranger as regards her loss thereby [marriage] of the right to the custody of the minor." (Radd-al-Mukhtar, Vol. II, p. 656, ed. Cairo.) III. "With a person not within the prohibited degrees":--i.e., on the ground of consanguinity. So if he is one within the prohibited degrees not on the ground of blood-relationship (e.g., a foster paternal uncles or a relation on the ground of consanguinity but within the prohibited degrees on the ground of fosterage (e.g., the child's uncle's son on the ground of consanguinity, but its uncle by fosterage), he is like a stranger. (Radd-al-Mukhtar, Vol. II, p. 651, ed. Cairo.) IV. Then if there be no agnates, [the guardianship] belongs to uterine relations. So it [the child] should be handed over to the uterine brother, then to his son, then to uterine paternal uncle then to full maternal uncle and then to uterine maternal uncle. (Radd-al-Mukhtar, Vol. II, p. 656, ed. (Radd-al-Mukhtar, Vol. II, p. 651, ed. Cairo.) IV. Then if there be no agnates, [the guardianship] belongs to uterine relations. So it [the child] should be handed over to the uterine brother, then to his son, then to uterine paternal uncle then to full maternal uncle and then to uterine maternal uncle. (Radd-al-Mukhtar, Vol. II, p. 656, ed. Cairo.) V. A minor girl should not be handed over to an agnate not within the prohibited degrees (e.g., an emancipated slave; the son of a paternal uncle), so long as there is a non-agnate within the prohibited degrees like the maternal uncle. She should rather be handed over to the maternal uncle to guard against mischief. (Inayah, Vol. IV p. 187, ed. Cairo). VI. If she [woman entitled to guardianship] dies or marries, then the full sister; then if she [full sister] dies or marries, then the uterine sister.......The right to guardianship which belongs to these women is lost by marriage when they marry a stranger. But if they marry a blood-relation of the child standing to it within the prohibited degrees, e.g., its grand-mother [mother's mother] marries its grandfather [father's father] or if the mother marries the paternal uncle of the child; then, the right to guardianship is not lost. Thus it is laid down in the Fatawa Qadi Khan (Fatawa Alamgiri, Vol. I, p. 728-729, ed. Cal.) VII When the minor girl has no agnate, she should be handed over to the uterine brother; then to his son, then to uterine paternal uncle, then to full maternal uncle, then to consanguine maternal uncle, then to uterine maternal uncle, (Fatawa Alamgiri, Vol. I, p. 729, ed Cal) 5. These texts supply clear authority for the proposition that a brother-in-law not within the prohibited degrees is not entitled to be appointed guardian. That being so, I hold that the brother-in-law Golam Kadir is not entitled to be appointed guardian specially in the presence of a person who is competent under the Mahomedan Law, viz., the maternal uncle Syed Mahomed Yakub who is the other applicant. 6. The step father also appeared and stated through his counsel that though he considered he had no right and was not in Court for the purpose of asserting any right in himself, yet he submitted that if the Court so desired, he was willing to be appointed. 6. The step father also appeared and stated through his counsel that though he considered he had no right and was not in Court for the purpose of asserting any right in himself, yet he submitted that if the Court so desired, he was willing to be appointed. The maternal uncle has been examined and cross-examined before me. There were certain charges made against him in the affidavit of the step-father and both the step-father and brother-in-law were allowed to cross-examine him in order to help the Court to consider whether he was eligible or not. I do not think that any of the charges made against the maternal uncle has been substantiated. The only ground for alleging that he is a man of dissolute habits is that some years ago he went to a questionable quarter of the town, and heard some music with his brother-in-law in the house of a woman of bad repute. Nothing else is alleged against him. It is also strenuously contended that inasmuch as he instituted certain proceedings in the Police Court challenging the marriage of Khaja Golam Kadir, and because he subsequently withdrew from the prosecution and consented to Golam Kadir being appointed guardian of the person of his wife, stating that he was convinced that they had been legally married, showed that he was a person in whom the Court could not place any confidence, that he had by his conduct shown that he was disqualified from acting as the guardian of the infant. It was said that he had extorted Rs 2,500 to give his consent as above and that he might utilise this occasion also for extorting some money from the young man, the son of a tailor, to whom the infant had been married. It appears that Syed Mahomed Yakub was promised payment of his costs in the Police Court and of the High Court in respect of the criminal proceedings, when the matter was amicably settled. He was not paid the amount, but that subsequently His Lordship Mr. Justice Imam who arbitrated for the parties in certain matters took evidence, allowed him Rs. 2,500 out of Rs. 3,500 which had been promised to be paid by Khaja Golam Kadir. His Lordship allowed Rs. 1,000 thereout to be paid to the wife. He was not paid the amount, but that subsequently His Lordship Mr. Justice Imam who arbitrated for the parties in certain matters took evidence, allowed him Rs. 2,500 out of Rs. 3,500 which had been promised to be paid by Khaja Golam Kadir. His Lordship allowed Rs. 1,000 thereout to be paid to the wife. Even if the facts were as alleged by the other side, I could hardly have held that this man was disqualified. He is now living with his wife who is 18 years old ; a girl of that age is competent in this country to look after her own household. Mr. Rasul on behalf of the step-father urged that it was necessary in the interest of the minor that she should repudiate her marriage with the tailor's son on attaining puberty, as it was a marriage below her station in life and altogether undesirable. It is said that the repudiation must be at the exact moment of time that she attains puberty, and that some female ought to be present at that time, competent to ascertain that critical moment. Therefore some woman, preferably a female relative, ought to be placed near her so that at that very moment she might repudiate the marriage if so inclined, otherwise according to the Mahomedan Law the present marriage would become valid. The applicant's wife, I think, is quite capable of discharging this function. The applicant says, he disapproves of the marriage, and there is no reason to suppose that he will prevent the repudiation. It has been suggested that he is on friendly terms with this tailor's son. He denies it, and I have no reason to disbelieve his statement. I, however, think that having regard to the bitter feeling between the parties and the manner in which this matter and cognate matters are being fought out, some provision should be made for providing a governess, if possible, for the infant and that the guardian whom I intend to appoint--the maternal uncle, i.e., the applicant Syed Mahomed Yakub-- should be put on terms. 7. Mr. Rasul states that there is a Mahomedan lady of position who is keeping a school and that if an application be made to her, she may be in a position to help the guardian of the infant in finding a governess for her. 7. Mr. Rasul states that there is a Mahomedan lady of position who is keeping a school and that if an application be made to her, she may be in a position to help the guardian of the infant in finding a governess for her. It appears that Babu Panna Lal Dey, the Attorney for the applicant, went and visited this lady and a letter from her has been placed before me that she can recommend a lady of the name of Hamedunnessa Khatun as governess for the infant. It is stated that she will be able to stay with the girl at her house except from 11 A.M. to 4 P.M., when she has to attend the Pardanashin Madrassa, as teacher and that she is able to get this governess on a pay of Rs. 15 a month with free board and lodging. The applicant through his counsel undertakes to appoint her, or failing her, a proper person who would be able to remain with this girl and assist her with her studies and live with her as a companion. The properly of this infant yields an income of about Rs. 150 a month ; she can well afford to pay for a suitable governess. I also make it a condition that the applicant will at all convenient times allow the female relatives of the infant to visit her and also such male relatives as the custom of the country and the custom of the family may allow, that he will offer no difficulties in the way of their communicating with her, or coming to see her. I appoint him guardian of the person and property of the infant on the above conditions. The guardian will have to give proper security to the satisfaction of the Court. 8. It was said that in respect of certain properties belonging to the infant's paternal estate, the applicant's interest was adverse. The applicant explained that certain properties were acquired by the father of the minor in the applicant's name and that thereafter he made a deed of gift of these properties to him. The matter has been adjudicated upon in the administration proceedings, and I do not think that his interest in these properties is such as to disqualify him from being the guardian of the property of the infant upon his furnishing proper security. The matter has been adjudicated upon in the administration proceedings, and I do not think that his interest in these properties is such as to disqualify him from being the guardian of the property of the infant upon his furnishing proper security. The Court has ample jurisdiction, should sufficient ground be made out to change the guardian, when necessary in the interests of the infant. For the present, I see no reason to disallow the application. Mr. B.C. Mitter 9. I am entitled to my costs. Chaudhuri, J. 10. Yes, out of the estate. Mr. B.C. Mitter 11. The brother-in-law should pay the costs. Chaudhuri, J. 12. The costs of the applicant Syed Mahomed Yakub of this application will be paid out of the estate of the infant on taxation. The costs of the applicant in meeting the application of the brother-in-law will be paid by the brother-in-law, such costs to be taxed as costs of an application. His own application for guardianship will be treated as a hearing and will be assessed as such. The guardian will allow the minor to go and see her sister, should she so desire. If on any occasion the sister desires to stay with her elder sister for a day or so, such permission will be granted. The guardian also undertakes not to allow Abu Syed, the tailor's son, to come to the house or to communicate with the girl until she attains puberty. Mr. Akbari 13. She will be allowed to go and see her step-father. Mr. B.C. Mitter Objects. Chaudhuri, J. 14. No, only her sister. I will not make any special order about visits to the step-father. I feel sure that the guardian will not raise objections to any visit that the girl may intend to pay to her relatives, The letter produced by Babu Panna Lal Dey about the governess will be kept on the file and the texts incorporated as part of this judgment.