JUDGMENT

Misra, J. - These are two connected appeals directed against the order of the learned District Judge of Moradabad, dated 10th April 1937 by which he accepted the application of Mt. Aisha Begam and rejected that of Mt. Kundan to be appointed guardian of the person of a girl named Hasina Begam. Aisha Begam the mother, and Mt. Kundan alias Eafiqa Begam is the grandmother of the girl. The girl was living with her grandmother and the first application was made by the mother Aisha Begam on 22nd January 1936. The object of making the application was stated to be to take the girl from an undesirable environment in which she and her grandmother are alleged to have been living. It is said that this grandmother was originally a prostitute, that after the death of her husband she lapsed into her former life and that some female relations with whom she is living are still carrying on the profession of prostitution. About two months after the application by the mother, the grand, mother made a counter-application in which she asked that she should be appointed guardian of the girl in preference to the mother. Both these applications, were considered together by the learned District Judge. He held that although the mother Aisha Begam has married outside the prohibited degree of relationship to the girl, she is entitled to be appointed guardian in preference to the grandmother who, though she is a very old woman, is still living in the same house with her nephew Hari Singh whose sisters are professional prostitutes. Accordingly, he granted the application of the mother Aisha Begam and rejected that of the grandmother who is the appellant before us.

2. It may be observed that one of the questions before the learned District Judge was whether the girl had attained majority. The girl and the grandmother both alleged that she had become major and the guardianship proceedings were therefore incompetent. Evidence was led on this point and the finding arrived at by the learned District Judge was that the girl is about 16 years of age. It may be further observed that the girl herself was quite unwilling to go and live with her mother but the learned Judge thought that there was no justification for the fears which the girl entertained of her mother. On behalf of the appellant it is contended that the mother is disentitled under the Mahomedan law to be appointed as guardian of the girl, and the learned District Judge was therefore wrong in appointing her as such. We consider that this contention is right and must be accepted. The learned District Judge has given no reasons for overriding the express provisions of the Mahomedan law on the point. It cannot be disputed that a female including the mother, who is otherwise entitled to the custody of a child, loses the right of custody if she marries a person not related to the child within the prohibited degrees, for example, a stranger. Section 17, Guardians and Wards Act, on which learned Counsel for the mother relies says that the Court appointing the guardian of a minor shall be guided by what appears in the circumstances of the case to be for the welfare of the minor but that the appointment shall be in consonance with the personal law to which the minor is subject. As was pointed out in the Lahore case in Mt. Mehraj Begum v. Yar Mohammad AIR (1932) Lah. 493, the Guardians and Wards Act does not permit the Court to subordinate the law to which the minor is subject to the consideration of what will be for the minor's welfare. The learned Judge of the Lahore High Court quoted with approval the observations in the Oudh case in AIR 1928 220 (Oudh) in which it was held that where the law definitely lays down that an appointment cannot be made inconsistently with the personal law to which the minor is subject, the Court cannot disregard that law even in the interest of the minor.

3. For these reasons we cannot uphold the appointment of the mother as guardian, even though that appointment be considered