A mother who marries a second husband forfeits her right to be the guardian of her minor child.

JUDGMENT :- The father of the minor applies for removal of the present guardian Mujeebunnissa Begum, who is the mother of the minor, from guardianship, and for appointment of himself as the guardian of the person of the minor. The present guardian, who is the Respondent, was married to the Petitioner and owing to certain differences there was a divorce of this marriage. She applied in O.P. No. 59 of 1947 for appointment of herself as the guardian of the person of the minor, who was then a child of about two years of age. The Petitioner consented to her being appointed and by an order of this Court dated 20-3-1947 made in the said O.P. No. 59 of 1947, the present Respondent was appointed as the guardian of the person of the minor. Subsequent to this, there were certain proceedings in the Presidency Magistrates Court under Section 488 of the Criminal Procedure Code for orders as maintenance of the minor and a sum of Rs. 12/- was fixed as the monthly maintenance to be paid to the Petitioner. The said order is still in force.

2. It is now stated that the Respondent has married a second husband and by him she has now a female child and that under the Muslim Law, the mother is not the natural guardian, while the father is alive, and that by virtue of the second marriage, she has forfeited her right to be the guardian of the person of the minor and to have her custody. The present application is for removal of the Respondent from the guardianship on the ground that she has forfeited her right to be the guardian under the personal law applicable to the parties.

3. The custody, or what is called hizanat of a minor girl until she attains puberty and of a minor boy until he attains the age of 7 years is with the mother. But even then the legal guardian is only the father. The right to the custody of the minor girl until she attains puberty continues with the mother, though she is divorced by the father of the child. However, the mother cannot continue to have the custody of the child, if she marries a second husband, in which case the custody belongs to the father. This is the proposition that has been laid down in Ulfat Bibi v. Bafati, 49 All 773, Mulla in his book on Principles of Mahomedan Laws 13th Edition, page 295 states as follows:

"The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father."

The principle laid down in Ulfat Bibi v. Bafati, 49 All 773 has been approved by the author in his book referred to. There is no dispute as to the Petitioner being the legal guardian. But it is contended on behalf of the Respondent that the mother is entitled to hizanat or custody until the minor attains puberty and that this right is not taken away, even if she marries a second husband. That is contrary to what is laid down in Ulfat Bibi v. Bafati, 49 All 773. But the learned counsel relies on certain observations made in Jumina Khatun v. Gaharajan Bibi, 76 Cal L Jour 303 at p. 305. In that case a maternal aunt was held to have a preferential right to the custody of the minor over that of paternal grandmother. It was held that having regard to the welfare of the minor, a maternal aunt who has married a stranger, in the absence of any preferential person, is not disqualified from being appointed guardian of the minor, that the Mahomedan Law does not lay down that a woman who had married a stranger to the minor is disqualified from being appointed a guardian under any circumstances and that it merely lays down that such a woman loses any preferential right which she had by virtue of her relationship to the minor. The question that arises in this case is not whether by reason of the marriage to a stranger the mother loses the right to continue to have the custody of the minor, b