Law: Guardians and Wards Act, 1890

Section: 17(1),25

Muhammadan Lass-Guardianship-Mother of minor marrying after divorce a stranger-Does not lose her right to hizanat (custody) of minor in all circumstances-Welfare of minor-Father's claim to guardianship-Guardians and Wards Act (VIII of 1890), Ss. 17 (1) and 25. The Muslim Law does not prohibit a mother who has married a person not related to her minor daughter within the prohibited degrees from being appointed her guardian under all circumstances. By marrying a stranger the right is not lost absolutely. She only loses her preferential right to the custody of the child which means that if there is another relation of the minor who possesses a right under the Muslim Law to the custody of the person of the minor and to whom the welfare of the minor can be safely and properly entrusted, such a female relation cannot claim the custody of the child as of right. Mst. Samiunnissa v. Mst. Saida Khatun A I R 1944 All. 202, Tumina Khatun v. Goharjan Bibi A I R 1942 Cal. 281, In re. Ghulam Muhammad A I R 1942 Sind 154 and Gunna (Old another- v. Dargahi A I R 1925 Oudh 623 ref. Mst. Mehraj Begum v. Yar Muhammad A I R 1932 Lah. 493, Mst. Ghulam rlanat v. Bahar Shah and others P L D 1952 B. J. 53 and Ansar Ahmad v. Samidan A I R 1928 Oudh 220, do not state lain correctly. A father applying under section 25, Guardians and Wards Act for restoration of custody of minor on the mother's marrying a stranger will only succeed if it is for the welfare of the minor to return to the custody of her guardian. The Court is not required, while dealing with an appli­cation under section 25 for the return of the minor to the custody of its guardian, to make an order "consistently with the law to which the minor is subject", as in the case of appointment of guardian under section 17 (1). A father who in order to avoid his liability for the maintenance of the minor, and for the dower debt of her mother, gave up all claim to the custody when the child was of render age, and who had taken no interest whatever in her existence, the minor being well looked after by the mother, and, being mature and of the age if discretion having refused to go to him did not succeed in his application under section…

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