The definition of "guardian" in section 4(2) of the Guardians and Wards Act is wide enough to include persons who are not legal guardians but who have the care of the minor.

Headnote:
GUARDIAN AND WARDS ACT - SECTION 7, 10, 19, 25 - MAHOMEDAN LAW - CUSTODY OF MINORS - APPOINTMENT OF GUARDIAN - JURISDICTION - EVIDENCE BY AFFIDAVITS - INTERPRETATION OF STATUTES - PERSONAL LAW - WELFARE OF THE MINOR.
Fact of the Case:

The petitioner, Shamim Banu, filed an application under sections 7 and 25 of the Guardian and Wards Act, seeking appointment as the guardian of her minor children, Mohomed Raees and Waheeda Begum, and for the return of the minors to her custody. The respondent, Mohomed Shafi, the father of the minors, opposed the application, claiming that he was the natural father and legal guardian of the minors and that the petitioner was not fit to be appointed as a guardian.
Finding of the Court:

The court held that the petitioner was entitled to make an application under section 25 of the Act as she had the care of the minors and that the minors were removed from her custody. The court further held that the definition of "guardian" in section 4(2) of the Act is wide enough to include persons who are not legal guardians but who have the care of the minor. The court also held that the provisions of the personal law applicable to the parties, in this case, Mahomedan Law, are superseded to the extent to which they are inconsistent or contrary to the provisions of the Guardians and Wards Act.
Issues: 1. Whether the petitioner was entitled to make an application under section 25 of the Act? 2. Whether the definition of "guardian" in section 4(2) of the Act includes persons who are not legal guardians but who have the care of the minor? 3. Whether the provisions of the personal law applicable to the parties are superseded to the extent to which they are inconsistent or contrary to the provisions of the Guardians and Wards Act?
Ratio Decidendi: 1. The court held that the petitioner was entitled to make an application under section 25 of the Act as she had the care of the minors and that the minors were removed from her custody. The court relied on the definition of "guardian" in section 4(2) of the Act, which includes "a person having the care of the person of a minor". The court also held that the provisions of the personal law applicable to the parties, in this case, Mahomedan Law, are superseded to the extent to which they are inconsistent or contrary to the provisions of the Guardians and Wards Act. 2. The court held that the definition of "guardian" in section 4(2) of the Act is wide enough to include persons who are not legal guardians but who have the care of the minor. The court relied on the observations of Chief Justice Sulaiman in Mt Siddiqunnisa v. Nizamuddin, where it was held that "any person who has the care of the person of the minor is a guardian of the person, and any person who has the care of the property of the minor is a guardian of the property within the meaning of this Act." 3. The court held that the provisions of the personal law applicable to the parties, in this case, Mahomedan Law, are superseded to the extent to which they are inconsistent or contrary to the provisions of the Guardians and Wards Act. The court relied on the observations of Chief Justice Sulaiman in Mt Siddiqunnisa v. Nizamuddin, where it was held that "if there is any conflict or inconsistency between section 4 of the Guardians and Wards Act and the provisions of the Mahomedan Law applicable to the parties, then it is the provisions of the Guardians and Wards Act which will prevail over the personal law."
Final Decision: The court partly allowed the appeal. The order passed by the learned Assistant Judge with regard to the appointment of the petitioner as guardian under section 7 read with section 10 of the Guardians and Wards Act was set aside and the matter was remanded to him for re-trial in the light of the judgment above and disposal in accordance with law in regard to the claim of the petitioner to be appointed a guardian in preference to the father. The order passed in regard to the return of the custody of the minor Mahomed Raees and Waheeda Begam was maintained.

JUDGMENT This first appeal is against the judgment and order passed by the Assistant Judge, Akola in Misc. Civil Application No. 57 of 1976 declaring and appointing petitioner as the guardian of minors Mohomed Raees and Waheeda Begum, and also directing the return of the minors to the guardian declared by his orders.

2. An application for appointment of herself as guardian and for the custody or returning the minors to her custody was filed by Shamim Banu against her husband Mohomed Shafi under sections 7 and 25 of the Guardian and Wards Act. She alleged therein that she was married to Mohomed Shafi and bore three children from respondent Mohomed Shafi, namely Mohomed Raees whose age was given as 4 years, Waheeda Begum, whose age was given as 21/2 years and Farooque who was aged It years at the time when this application was presented. She then stated that she was given very cruel treatment by the respondent who wanted to marry another woman and drove her out, and at that time snatched Mohomed Raees and Waheeda Begum from her. Farooque was then only a month old and was allowed to be retained with her. She, therefore, filed this application for custody or return of the custody of the minors to herself, namely, Mohomed Raees and Waheeda Begum, and for appointment of herself as the guardian under section 7. She also stated in the application that the respondent has married Sajjidabegum after the petitioner was driven away and that the respondent and his newly married wife are living together along with the minors who were, according to her, treated cruelly by the wife, step-mother, and the respondent.

3. The respondent filed his written statement to this application and denied that the petitioner was driven away and was treated cruelly. He claimed that he was the natural father of the minor children whose ages were not disputed and was, therefore, entitled to their custody. He contended that the petitioner was divorced by him on 7th November 1975 and that she was a woman of suspicious character and had connections with others and used to leave the house of the respondent at night in the company of somebody secretly. That she has left him with a view to carryon her affair with her boy friend. In these circumstances and also under the personal law to which the parties belong, namely, Mahomedan Law, he claimed that he was entitled to the custody of the children and was the proper and legal guardian of the minors. It is his claim that the application is motivated by the proceedings which she has commenced under section 125 of the Code of Criminal Procedure against him. He did not deny that he has married a third time, but denied that either the minors were given cruel treatment by him or his new wife. Lastly, he contended that the minors are being properly looked after and that the petitioner who is staying with her father has no means of income as also her parents which could be sufficient to bring up these minor children. That they would be practically starving whereas the respondent has sufficient earnings of his own. That there are other members in his family who come to him and look after his children by the petitioner.

4. At the hearing of the application, the parties filed a joint pursis Exhibit-9 stating that evidence in the case may be received by affidavits. Accordingly, on behalf of the petitioner affidavit was filed by the petitioner and of two other persons. On behalf of the respondent, affidavit was filed of himself and also of one Shaikh Kadir. Upon consideration of these affidavits and the arguments which were advanced before the learned Assistant Judge who heard the application, the learned Assistant Judge came to the conclusion that the application was maintainable and that it was necessary to appoint the petitioner as a guardian of the minors and also to direct the return of the minors to the custody of the guardian. In that view, he appointed the petitioner as the guardian of the minors and also directed their ret

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