JUDGMENT :- This appeal is directed against an order of the District Judge of Bahraich passed on an application made by the respondent under Section 25 of the Guardians and Wards Act for the returning of the custody of her ward, her minor son, then aged about 4 years.

2. The parties to this litigation are Mahomedans, the appellant being the father and the respondent the mother of the minor. There has been a divorce between them. The allegations in the application were that during the period they were in lawful wedlock the minor was born and though there has been a divorce since then he has been living with the mother. A few days prior to the making of the application by the respondent before the District Judge, it was alleged, the minor was taken away on some pretext by the father. It was in these circumstances that the application was made under Section 25 by the mother to the effect that it will be for the welfare of the ward, the minor, to be returned to the custody of his guardian, the mother. That application has been allowed. The father has come up in this appeal and challenges that order.

3. Section 25 (1) of the Guardians and Wards Act provides :

"25 (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian."

4. In order to attract the application of this provision of law there must be a ward or a minor. He must have left or been removed from the custody of the guardian of his person and it should be for the welfare of that minor to return him to the custody of the guardian. In these circumstances the court may make an order for his return.

5. A "guardian" has been defined under Section 4 (2) of the Act as meaning a person having the care of the person of a minor or of his property, or of both his person and property. In this case we are not concerned with the property but we are concerned with the person.

6. In the light of this definition let us examine whether the mother, who made the application under Section 25, was the guardian of her minor son.

7. Under the Mahomedan Law the mother is entitled to the 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 3. second husband in which, case the custody belongs to the father.

8. The word hizanat has been translated as "custody" by the authors on Mahomedan Law (See Mulla's Principles of Mahomedan Law, Sixteenth Edition, Article 352).

9. Ameer Ali in his Mahomedan Law, Volume II, Fourth Edition, quotes Tanwir-ul-Absar by pointing out that "the hazina is the woman to whom belongs the rearing up a child". He also quotes Fatawai Alamgiri which is to the effect that "the mother is of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution". After quoting from Radd-ul-Muhtar he points out that it will be seen that this right belongs to her qua mother, and nothing can take it away from her except her own misconduct. At page 295 he further points out that among the Hanafis the accepted doctrine is that the mother's hizanat of a male child ends with the completion of his seventh year. At page 310 he further points out that the mother can on no account give up her right of hizanat; for even if she were to obtain a khula in lieu of abandoning her right to her child's custody, the Khula will be valid and she will retain her right of hizanat.

10. Obviously under the personal law applicable to the parties to this litigation the mother, i.e., the respondent, who made the application before the District Judge, was entitled to the hizanat or the custody of the

Click Here to Read the rest of this document