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Andhra Pradesh High Court
Judges : ALLADI KUPPUSWAMI, V.MADHAVA RAO
Khatija Begum - Appellant
Versus
Gulam Dastagir - Respondent
Decided On : 01-16-75
GUARDIANSHIP - MOHAMMEDAN LAW - CUSTODY OF MINOR GIRL - FATHER AS NATURAL GUARDIAN - GRANDMOTHER'S RIGHT TO CUSTODY - SECTION 19, GUARDIANS AND WARDS ACT - INTERPRETATION.
Fact of the Case:
The appellant, the maternal grandmother of a minor girl, filed a petition under Section 53 of the Hyderabad Children Act for the custody of the minor child, alleging ill-treatment by the father. The Magistrate granted custody to the appellant, but on revision, the High Court remanded the case for further proceedings. The Magistrate then dismissed the petition, and the appellant filed a petition under Sections 9 and 10 of the Guardians and Wards Act for guardianship and custody of the minor. The Additional Chief Judge granted the petition, but on appeal, the High Court set aside the order, holding that the father was the natural guardian and that the appellant could not be appointed as guardian unless the father was unfit.
Finding of the Court:
The High Court found that the father was not unfit to be the guardian of the minor, as the allegations of ill-treatment were not established. However, the court held that the appellant was entitled to the custody of the minor under Mohammedan law, as the father was legally incapable of having custody of a female child who had not attained puberty.
Issues: 1. Whether the appellant could be appointed as guardian of the minor under Section 19 of the Guardians and Wards Act, given that the father was living and not unfit to be guardian. 2. Whether the appellant was entitled to the custody of the minor under Mohammedan law, despite the father's guardianship.
Ratio Decidendi: 1. Section 19 of the Guardians and Wards Act prohibits the appointment of a guardian for a minor whose father is living and not unfit to be guardian. However, the court interpreted the term "guardian" in Section 19 to include the right to custody of the minor. 2. Under Mohammedan law, the mother is entitled to the custody of a female child until she attains puberty. In the absence of the mother, the custody belongs to the mother's mother. The court held that the father was legally incapable of having custody of the minor, as she had not attained puberty, and therefore he was unfit to be the guardian of the person of the minor in the limited sense of being unfit to have the right to custody.
Final Decision: The High Court allowed the appeal in part, dismissing the petition insofar as it sought to appoint the appellant as guardian, but allowing it insofar as it sought permission to retain custody of the minor. Each party was directed to bear their own costs.
( 1 ) THE appellant is the grandmother (mothers mother) of minor girl Jameela, whose mother died on 25-11-1968 after undergoing a caesarean operation at the Railway Hospital, Lallaguda and giving birth to the minor who fortunately survived. The child was thereafter taken to the Niloufer Hospital where she was treated for about a month. Thereafter the child was taken away by her father, the respondent herein, to his house. On the 5/02/1969 the appellant herein filed a petition under Section 53 of the Hyderabad Children Act for the custody of the minor child on the ground that he child was being ill-treated by the respondent. On this petition, a warrant was issued and the child was produced by the father in the Court. The father also filed a counter challenging the allegation, made against him by the appellant. The Magistrate passed an order directing that the child be given to the care of the appellant. As against this order, the respondent field Crl. R. C. 285/69 to this Court. The revision petition was allowed and the case was remanded to the Magistrate with a direction to dispose of the case after taking oral and documentary evidence. This court directed that the child should remain in the custody of the appellant till the enquiry was completed and final order was passed. After remand the Magistrate passed an order on 24-7-1970 dismissing the petition by the appellant.
( 2 ) MEANWHILE, on the 20/02/1970 when the petition before the Magistrate was pending after remand, the appellant herein filed a petition under Sections 9 and 10 of the Guardians and Wards Act, before the Chief Judge, City Civil Court, Hyderabad, praying that she may be appointed as the guardian of the person of the minor. Subsequently the petition was amended by including a prayer that the petitioner may have the custody of the minor child. In the petition it was alleged that the respondent beat his wife Ghousei Begum, the mother of the minor child severely and ill-treated her. On the night of 25-11-1968 due to such ill-treatment she became unconscious and was admitted into Railway Hospital Lallaguda under a different name, namely Akina Bee, wife of Abdul Waheb, the brother of the respondent. Ghousia Begum underwent caesarean operation the next day, but the child survived. The appellant filed a petition before the Magistrate for custody of the child under Section 53 of the Hyderabad Children Act and obtained custody of the child.
( 3 ) SHE was treating the child with love and affection. In the interests of the minor the appellant was the proper person to be appointed as the guardian, being its maternal grand-mother and to retain the minor in her custody. The Additional Chief Judge, City Civil Court, who heard the petition, after discussing he oral and documentary evidence, came to the conclusion that the interests of the minor require that the appellant should be appointed as the guardian and retain the custody of the minor. She, therefore, allowed the petition. In the course of the judgment it was observed that the respondent had married again. The respondents mother who, the respondent stated would be in the position to look after the child, had no other income but was depending on the charity of her children. The respondent had not paid anything towards the maintenance of the child during all the three years when the child was in the custody of the grand-mother. The minor being a female child, under Mohammedan Law, the maternal grand-mother was entitled to the custody of the minor in the absence of the mother, though the father as a natural guardian was entitled to have control and supervision of the child. It was in evidence that the minor was brought up with care and affection by the grand-mother and was in good health. For these reasons the learned Chief Judge took the view that the petition should be allowed.
( 4 ) THE respondent herein preferred an appeal, C. M. A. No. 498 of 1972 to this Court. Chinnappa Reddy, J. , did not bel
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