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CALCUTTA HIGH COURT
Newbould, J., N.R. Chatterjea, J.
Hadish Bapari - Appellant
Versus
Bogamulla Sheik - Respondent
Decided On : 31-01-1917
Guardianship - Guardians and Wards Act, 1890 - Sections 17(2), 19, 20
Fact of the Case:
The appellant applied to be appointed and declared guardian of the person and property of his minor daughter under the Guardians and Wards Act, 1890. The District Judge refused the application, holding that under Sunni Muhammadan law, the mother's mother has a preferential claim over the father to the custody of the minor, and that it would be in the best interests of the minor to remain with her mother's relations.
Finding of the Court:
The court allowed the appeal in part and declared the appellant to be the guardian of the property of the minor daughter, as under Muhammadan law, the father has a preferential claim to be the minor's guardian for this purpose. However, the court upheld the refusal to appoint the appellant as the guardian of the person of the minor, as this was in accordance with the Sunni Muhammadan law and in the best interests of the child.
Issues: Whether the appellant should be appointed as the guardian of the person and property of his minor daughter under the Guardians and Wards Act, 1890.
Ratio Decidendi: The court's decision was based on the provisions of the Guardians and Wards Act, 1890, particularly Section 17(2), which brings the Act's provisions in line with Muhammadan law. Under Sunni Muhammadan law, the mother's mother has a preferential claim over the father to the custody of the minor, and this was in the best interests of the child. However, the father has a preferential claim to be the guardian of the minor's property.
Final Decision: The court allowed the appeal in part and declared the appellant to be the guardian of the property of the minor daughter, but upheld the refusal to appoint him as the guardian of the person of the minor.
JUDGMENT
1. This is an appeal against an order refusing the application of the appellant to be appointed and declared guardian of the parson and property of his minor daughter under the Guardians and Wards Act, 1890. The learned District Judge has refused the application, on the ground that according to the Sunni school of Muhammadans, which prevails in this case, the mother's mother has a preferential claim over the father to the custody of an infant on the death of the mother and also on the ground that it will be in the best interests of the minor that she should remain for the present with her mother's relations. These are good grounds for refusing the appellant's application to be appointed guardian of the person of the minor but no sufficient reason has been given why he should not be declared guardian of her property. According to Muhammadan Law he has a preferential claim to be the minor's guardian for this purpose. Though the Guardians and Wards Act gives to the Judge power of appointing anybody, Section 17(2) Jays down rules which bring the provisions of the Act into line with those of the Muhammadan Law. We are told that the real dispute between the parties is about the right to give the girl in marriage. It is sufficient to remark that the refusal to appoint the appellant guardian of his daughter's person in no way diminishes his rights as a father under the Muhammadan Law in this respect. The rules as to guardianship for contracting marriage on behalf of a minor depend exclusively upon Muhammadan Law and, therefore, are not affected by any order made under the Guardians and Wards Act.
2. We accordingly allow this appeal in part and declare the appellant Hadish Bepari to be the guardian of the property of his minor daughter Gul Banu who was born in Sraban 1320 B.S. The respondent did not appear and we make no order as to costs.
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