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Rajasthan High Court · body

1962 DIGILAW 261 (RAJ)

Rafiq v. Bashiran

1962-12-04

JAGAT NARAYAN

body1962
Jagat Narayan, J.—This is an appeal by one Rafiq a Muslim father, against an order of the Civil Judge Bundi passed under sec. 25 of the Guardians and Wards Act directing him to deliver the custody of his 3-1/2 years old daughter to his wifes mothers fathers sister Smt. Bashiran. 2. Rafiq divorced the minors mother Smt. Gulshan on 12.1.59. After the divorce the minor remained in the custody of her minor who was living with her father Bahauddin 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 sec. 25 of the Guardianship Act was then filed on 1 .8.60 by Bahauddins sister Smt. Bashiran. This application was granted by the learned Senior Civil Judge on the ground that under the Mahomedan Law Smt. Banshiran had a preferential right to the custody of the minor, being the maternal aunt of her mother. According to Tyabjis Mahomedan Law, Third Edition, sec. 236 (at pages 275) the following persons have a preferential right over the father to the custody of a minor girl before she attains the age of puberty:– 1. Mothers mother. 2. Fathers mother. 3. Mothers grandmother howsoever high. 4. Fathers 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 sec. Fathers mother. 3. Mothers grandmother howsoever high. 4. Fathers 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 sec. 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 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." 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 sec. 19 of the Guardians and Wards Act prevail over the provisions of sec. 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. 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." In Siddq-un-Nissa Bibi Vs. Nizam-Uddin Khan(l) Sulaiman Acting C., J. observed at page 134— "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 — "There can be no doubt that so far as the power to appoint and declare the guardian of a minor under sec. 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 sec. 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. 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. Sec. 19 then provides that "Nothing in 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 bus-band 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 sec. 17 to appoint or declare a guardian is ousted where the case is covered by sec. 19." 3. 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 Vs. G.H. Sarkar(2) there is a presumption that the parents will be able to exercise good care in the welfare of their children. 4. 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 sec. 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. 5. The minor was delivered to the custody of Smt. Bashiran 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 sec. 5. The minor was delivered to the custody of Smt. Bashiran 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 sec. 100 of the Code of Criminal Procedure.