JUDGMENT

Sulaiman, Actg., C.J. - This is an appeal by the maternal grandmother of Musammat Wajida Khatun from an order of the District Judge of Ghazipar directing that she should make over the child who was about seven years old to the respondent, her father. The mother of the girl died a few days after her birth at Sasaram which is the residence of the father, the maternal grandmother is residing in another District at Zamania. The girl was undoutedly allowed to be brought by the grandmother from Sasaram to Zamania and has for these years been maintained and brought up by the appellant. An application was made by the maternal grandmother that she should be appointed the guardian of her parson. Objections were filed by the father, the grand father as well as the paternal grandmother to the appointment of the maternal grandmother as her guardian and there was also a prayer that either of these persons be appointed a guardian of her person. The learned District Judge came to the conclusion that in view of the provisions of Section 19 of the Guardians and Wards Act he had no power to appoint a guardian at all, but he granted a separate application of the father made u/s 25 of the Act for the return of the girl to him. The grandmother has accordingly appealed and challenges the propriety of the order passed.

2. The learned Counsel for the parties have placed before us a large number of rulings which show that there has to some extent been a conflict of opinion on the interpretation of some of the sections of the Act.

3. There can be no doubt that so far as the power to appoint and declare the guradian of a minor u/s 17 of the Act is concerned the personal law of the minor concerned is to be taken into consideration, but that law is not necessarily binding upon the court, which must look to the welfare of the minor consistently with that law. This is so in cases where Section 17 applies. In such cases the personal law has to this extent been superseded that it is not absolutely binding on the court and can be ignored if the welfare of the minor requires that some one else, even inconsistently with that law, is the more proper person to be appointed guardian of the minor. Section 19 then provides that

nothing in the chapter shall authorise the court...to appoint or declare a guardian of the person (a) of a minor who is a married female and whose husband is not, in the opinion of the court unfit to be guardian of her person or (b)...of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

4. The language of the section, as it stands, obviously implies that when any of the three contingencies mentioned in the sub-clauses exists there is no authority in the court to appoint or declare a guardian of the person of the minor at all; that is to say, the jurisdiction of the court conferred upon it by Section 17 to appoint or declare a guardian is ousted where the case is covered by Section 19.

5. The learned Advocate for the respondent has argued before us that the section must be read as if it was meant that nothing shall authorise the court to appoint or declare a guardian of the person of the minor 'other than the husband or the father as the case may be'. This, in my opinion would be interpolating new words into the section which are not there. If an application for appointment of a guardian is made to the court, and it is brought to its notice that the minor has a husband who is alive and is not unfit to be the guardian of the minor, or that he or she has a father who is living and is not unfit to be the guardian of the person of the minor then there is no authority in the court to appoint or declare a guardian of the person of the minor. The section means not only that in the presence of the husband or the father no one else should be gi