JUDGMENT S.K. Verma, J. - This is a first appeal under Section 47 of the Guardians and Wards Act against the order of the learned II Additional District Judge of Allahabad. 2. The dispute is concerning the custody of two minor girls Km. Sayeeda Khatoon, aged about 161 years, and Km. Umra Khatoon, aged about 15 years. The appellant, Sultan Ahmad, is the father of the two girls and the respondent, Smt. Sabira Bibi, is their mother. The following facts are not in dispute. The appellant was married to Smt. Sabira Bibi in the year 1951. Km. Sayeeda Khatoon was born of this marriage on 6-9-1952. In the year 1953 the appellant divorced his wife and at that time Km. Umra Khatoon was in her mother's womb and she was born on 18th December, 1953, that is to say, about 61 months after the divorce. The two minor girls have been, since their birth, residing with their mother, the respondent. The appellant has another wife and from her he has four children. He is in the service of the Railway and, at the relevant time, was living in a rented room at Kanpur which he shared with another man. His wife lived at Allahabad with her four children. About eight years prior to the date when the case was heard by the court below the respondent married one Sadaqat Husain who was not related to the children within the prohibited degrees. The appellant took no interest in the two minor girls since their birth. He never even saw Km. Umra. The respondent had to file a suit against the appellant for maintenance allowance for her two minor daughters. The suit was decreed, but the appellant never paid the maintenance allowance of his own accord and every time execution proceedings had to be initiated. When the case was pending in the court below there was an execution pending for Rs. 128/- as arrears of maintenance. The respondent had married Sadaqat Husain eight years prior to the proceedings in the court below and the appellant never claimed the custody of the two girls during these eight years; he decided to apply- for their custody only after a decree for their maintenance allowance was passed against him. 128/- as arrears of maintenance. The respondent had married Sadaqat Husain eight years prior to the proceedings in the court below and the appellant never claimed the custody of the two girls during these eight years; he decided to apply- for their custody only after a decree for their maintenance allowance was passed against him. The minors, who had attained an age when they could express their preference independently, stated in the court below that they wanted to live with their mother, The appellant applied for the custody of the two minor girls and the court below came to the conclusion that the application had been made mala fide only with a view to escape the liability to pay maintenance allowance. The court below was of the view that it was in the interest of the minors' welfare that their custody should remain with their mother in preference to their father; hence this appeal. 3. Learned counsel for the appellant has relied upon Section 354 of Mulla's Principles of Mahomedan Law (16th Edn.) . This section reads as follows :- "354. Females when disqualified for custody. A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody- (1) if she marries a person not related to the child within the prohibited degrees, e.g., a stranger, but the right revives on the dissolution of the marriage by death or divorce; or (2) if she goes and resides, during the subsistence of the marriage, as a distance from the father's place of residence; or (3) if she is leading an immoral life, as where she is a prostitute; or (4) if she neglects to take proper care of the child." 4. Learned counsel has also placed reliance on a Division Bench decision of this Court in Kundan alias Rafiqa Begam v. Aisha Begam, 1938 ALJ 982. In this case the dispute was between the grandmother of a minor girl, Hasina Begam, and her mother, Aisha Begam. The grandmother was a prostitute prior to her marriage and, after her husband's death, she lapsed into her former way of life. She lived with some of her female relations who carried on the profession of prostitution. The learned District Judge had awarded the custody of the minor girl to the mother, Aisha Begam. The grandmother was a prostitute prior to her marriage and, after her husband's death, she lapsed into her former way of life. She lived with some of her female relations who carried on the profession of prostitution. The learned District Judge had awarded the custody of the minor girl to the mother, Aisha Begam. The learned Judges constituting the Bench came to the conclusion that the minor had attained majority and that she was at liberty to live wherever she liked, either with her grandmother or with her mother. They, however, went on to observe : "It cannot be disputed that a female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody if she marries a person not related to the child within the prohibited degrees, for example, a stranger." 5. This case was distinguished by the court below on the ground that there was no decree for maintenance against the person claiming custody of the minor. This case, in my opinion, is distinguishable on a number of grounds. Firstly the minor girl was held to be a major. If she had not been a major I doubt very much if the custody would have been given to the grandmother in preference to the mother. Secondly, the minor girl was quite unwilling to go and live with her mother. In the case in hand the two minor girls, who were old enough to know their minds, have expressed their desire to live with their mother. Thirdly, in Kundan alias Rafiqa Begam v. Aisha Begam the learned District Judge had given no reasons at all for preferring the mother as guardian (and this fact has been emphasised by the learned Judges of the Division Bench) whereas in the case in hand the court below has given excellent and detailed reasons why the mother should be preferred to the father. The wide proposition (quoted above) that the Bench apparently laid down must be interpreted in the context of the facts of that case. It does not mean that a Muslim mother who marries a stranger can in no case be appointed a guardian of her minor children. 6. In Mt. Hallman Khatoon v. Mt. Ahmadi Begum, A.I.R. 1949 Alld. 627 Mt. Haliman Khatoon, the mother of the minor, had married her father's sisters' son. It does not mean that a Muslim mother who marries a stranger can in no case be appointed a guardian of her minor children. 6. In Mt. Hallman Khatoon v. Mt. Ahmadi Begum, A.I.R. 1949 Alld. 627 Mt. Haliman Khatoon, the mother of the minor, had married her father's sisters' son. She applied for the guardianship of her minor son Mohd. Ayub. The other two persons claiming the custody of the minor were Mt. Ahmadi Begum, the minor's father's mother's mother, and Zohra Khatoon, the minor's father's sister. The learned District Judge had refused to give the custody of the minor to the mother Mt. Haliman Khatoon on the ground of her marriage with her father's sister's son.. Reversing the decision, a Division Bench. of this Court observed as follows :- "It is urged that even if Zohra Khatun has lost her right, the appellant having lost her right, can in no case, be appointed as the guardian of the person of her minor son and that therefore her appeal must be dismissed. Reliance has been placed upon a ruling of this Court reported in Mt. Kundan Begam v. Mt. Aisha Begam. In that case there was a contest about the guardianship of a female minor aged sixteen between her mother and her grandmother. The girl was quite unwilling to go and live with her mother. Harries and Misra, JJ., held that in view of the fact that the mother had married a stranger i.e., a person not within the prohibited degrees of the female minor she was dis-entitled to be appointed the guardian of the minor,. They further observed that under Section 17 the Court had no power to subordinate the law to which the minor was subject to the consideration of what would be for the minor's welfare. This case was considered by the present Chief Justice in a later case reported in Mt. Samiunnissa v. Mt. Saida Khatun, AIR 1944 Allahabad 202. We agree with the following observations of his Lordship : "There can be no doubt that Section 17, Guardians and Wards Act does apply to Muslims, and it is open to the Court to appoint a stranger as guardian to the person of a minor, the guardian so appointed not being a guardian under the Mohammedan Law, if no guardian under the Mohammedan Law is forthcoming or is available. The mother may have lost her right to guardianship under the Mohammedan Law but she cannot be in a worse position than a stranger and I cannot find any provision under the Mohammedan Law which forbids her appointment as a guardian, if the Court cannot find a more suitable person. Strictly speaking, under the Mohammedan law the mother is not a natural guardian at all, see Imambandi v. Mutsaddi, 45 IA 73 : AIR (5) 1918 PC 11. She has merely the right of hizanat, custody of the child, upto a certain age according to the sex of the child. To my mind if the Court, keeping in view the welfare of the minor, considers that the mother should be appointed a guardian in preference to any other natural guardian under the Mohammedan Law, the order passed cannot be challenged on the ground that the Court had no power to do it. Though, as I have already stated, the Court should make an attempt, so far as possible, to follow the line of guardianship fixed under the personal law of a minor, I am not prepared to hold that they must subordinate the welfare of the minor and must, whatever the consequence, appoint the natural guardian under the personal law." 7. A comparison of Section 17 which applies to the present case and Section 19, Guardians and Wards Act, will bear this out. Under Section 19, the Court has no jurisdiction to appoint as guardian, anybody other than the persons mentioned therein, unless such persons are unfit to be appointed as such. The language of Section 17, however, is different. It gives a much wider discretion to the Court and whenever the Court is of the opinion, consistently of course with the law to which the minor is subject, that it is for the welfare of the minor that certain person should be appointed guardian the Court can exercise its jurisdiction and appoint such a person as the guardian. (9) The true rule in our opinion under Section 17, Guardians and Wards Act may be stated thus-One has to see who out of several applicants has a preferential right to be appointed a guardian of the minor under the personal law of the minor. If that person is unfit to be appointed as guardian, he will not be appointed. (9) The true rule in our opinion under Section 17, Guardians and Wards Act may be stated thus-One has to see who out of several applicants has a preferential right to be appointed a guardian of the minor under the personal law of the minor. If that person is unfit to be appointed as guardian, he will not be appointed. Even though that person may not be unfit to be appointed as guardian, yet if there are weighty considerations against his appointment in comparison to another person, he will not be appointed as guardian and the other person will be appointed as guardian. But, if the considerations are not very weighty and there is merely a slight preference in favour of that other person, the guardian, pointed out by the personal law of the minor, should be preferred. If, however, none of the persons applying for guardianship is a guardian under the personal law, the Court can appoint any one who appears to be most suitable as the guardian of the minor. (10) It has not been shown that Mt. Haliman Khatun is, in any way, unfit to be the guardian of her minor son." 8. The facts of the Single Judge decision Mt. Samiunnissa v. Mt. Saida Khatun approved of by this Division Bench were these. The dispute was concerning the custody of a minor girl, Rashida Khatun, aged about 10 years. The grandmother of the minor, Mt. Samiunnissa, filed an application to be appointed as guardian. This was opposed by the minor's mother, Mt. Saida Khatun. Mt. Samiunnissa's brother, Sayeed Ahmad, also filed an application supporting the application of Mt. Samiunnissa. He also prayed that, in the alternative, he should be appointed guardian. The antecedents of the mother Mt. Saida Khatun were as follows. She had married a christian and was known as Daisy Lal. On her christian husband's death she embraced Islam and married one Jamil Ahmad who worked as a motor driver. The minor girl was the daughter of Jamil Ahmad and Mt. Saida. Khatun. Jamil Ahmad died in the year 1933 and, in January, 1936, Mt. Saida Khatun married one Abdul Aziz, L.M.S. medical practitioner. Abdul Aziz was not related to the minor within the prohibited degrees. The contention of the grandmother, Mt. Samiunnissa, was that, on her marriage, Mt. Saida Khatoon lost her right of guardianship under the Mohammedan Law. Saida. Khatun. Jamil Ahmad died in the year 1933 and, in January, 1936, Mt. Saida Khatun married one Abdul Aziz, L.M.S. medical practitioner. Abdul Aziz was not related to the minor within the prohibited degrees. The contention of the grandmother, Mt. Samiunnissa, was that, on her marriage, Mt. Saida Khatoon lost her right of guardianship under the Mohammedan Law. This argument was not accepted by Malik, J., as he then was and his observations have been quoted with approval by the Division Bench in Mt. Haliman Khatoon v. Mt. Ahmadi Begum. 9. In Haidari Begam v. Jawwad Ali Shah, 1934 ALJ 399 a Division Bench of this Court laid down that the main question for consideration was what would be more conducive to the Child's welfare. In Mt. Siddiquinnisa Bibi v. Nizamuddin Khan, A.I.R. 1932 Alld. 215 a Division Bench of this Court said :- "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." 10. This brings me to consideration of a Division Bench decision of Jammu and Kashmir High Court in Hassan Bhat v. Ghulam Mohammad Bhat, A.I.R. 1961 J & K 5. The learned Judges relied upon Section 17 of the Guardians and Wards Act which reads as follows :- "17. Matters to be considered by the Court in appointing guardian- (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, appear,s 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." 11. (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." 11. The learned Judges observed as follows :- "Sub-sec. (2) of Section 17, above, mentions the competency of a guardian to be appointed and it lays down the tests to determine the welfare of a minor and one of the tests indicated in this section is the character and the capacity of the proposed guardian. Sub-sec. (1) above, no doubt, provides that the Court is to be guided by personal law but the words "subject to the provisions of this section" clearly indicate that the consideration of the welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor." 12. In Abdul Mohit v. Mt. Zebunnessa Khatun, AIR 1951 Calcutta 205 also the mother had married a stranger who was not within the prohibited degrees. A Division Bench of the Calcutta High Court relied upon the following observations of an earlier Bench decision of that Court in Tumina Khatun v. Gharjan Bibi, AIR 1942 Calcutta 281 in which it was observed as follows :- "The Mohammedan Law, however, has not forbidden the appointment of a. woman who has married a stranger to the. minor to be guardian of the minor; all that it has laid down, as I have explained above, is that a woman who has a preferential right to the custody of an infant loses such right on her marriage to a stranger." The learned Judges went on to observe as follows :- "This is a decision on the question as to whether a female relation, who had married to stranger, could be appointed a guardian of the minors, and this decision is an authority for the proposition that the fact that the woman has married a stranger will not stand in the way of her being appointed as the guardian of the minors. If that be so we do not see any reason to hold why such a woman should be removed from the guardianship if after her appointment she marries a stranger not within prohibited degrees. The point raised by Mr. Sen is thus concluded by the decision referred to above and it must be overruled." 13. If that be so we do not see any reason to hold why such a woman should be removed from the guardianship if after her appointment she marries a stranger not within prohibited degrees. The point raised by Mr. Sen is thus concluded by the decision referred to above and it must be overruled." 13. A careful analysis of the personal law relating to guardianship, Section 17 of the guardians and Wards Act and the relevant authorities thereon appear to lead to the following conclusions : 1. The Court while deciding the question of guardianship of a minor must. as far as possible, do so consistently with the personal law to which the minor is subject, 2. Where the dictates of personal law indicate one course of action and considerations of the welfare of the minor indicate another, the former must be sub-ordinated to the latter. The words that furnish a key to the correct legal position are to be found in Section 17 of the Guardians and Wards Act. Principles of personal law must be applied "subject to the provisions of this section". In other words, if there is a conflict between the personal law to which the minor is subject and considerations of his or her welfare, the latter must prevail. 14. I entirely agree with the court below and hold that it will not be in the interest of the minors that they should be uprooted from their surroundings in which they have lived for 16-} and 15 years respectively and be handed over to the father, the appellant, who has taken no interest in them since their birth. 15. The appeal is dismissed, but as no one has appeared for the respondent I make no order as to costs.