Law: Guardians and Wards Act (VIII of 1890)

Section: 17,25

 (a) Guardians and Wards Act (VIII of 1890)-------   ------Ss. 17 & 25--- Phrase "consistently with the law to which the minor is subject" in S.17-Does not apply to S. 25-Mother's hizanat of minor children --No Quranic or Traditional Text on point-Conflict of law in rule propounded in different Text Books of Muslim Law-Courts, keep ing interest of minors in view, competent to come to their own conclusions--Minor son and daughter remaining in custom of mother for 9 years and reared and brought up by her without any support from father-Welfare of minors, held. lay in allowing minors to remain in custody of their mother.   Where there is no Quranic or Traditional Text or an Ijma on a point of law, and if there be a difference of views between A'inima and Faqihs, a Court may form its own opinion on a point of law. It would, therefore, be' permissible for Courts to differ from the Rule of Hizanat stated in the Text Books on Muslim Law where there is no Quranic, or Traditional Text on the point. Courts which have taken the place of Qazis can, therefore, come to their own conclusions by process of Ijtihad which, according to Imam -Al-Shafai, is included in the doctrine of Qiyas. Where the rule propounded in different Text Books on the subject of Hizanat is not uniform, it would be permissible for the Courts to depart from the rule stated therein if, on the facts of a given case, its appli cation is against the welfare of the minors.   Where, therefore, in an application under section 25 of the Guardians and Wards Act, 1890, it was found that the mother for nine years had reared and brought up her two minor children, a son and a daughter, without any short comings and all these years the father had not only not seen the children but had not contributed a single pie towards their maintenance, it was held, that it was in the welfare of the two children to remain in the custody of their mother.   Mst. Aishan v. Jodha Rain and others A I R 1938 Lah. 719; Muhammad Bakhsh v. Crown and others P L D 1950 Lah. 203; Mst. Muni v. Habib Khan P L D 1956 Lah. 403; Principles of Muhammadan Law by, Mulla, 14th Edition, page 243;…