G.C. Mathur, J. - (1.) THIS is an application Under Section 491 of the Code of Criminal Procedure by the maternal grandmother of two infants, praying that the infants be produced before the Court and restored to the custody of the Applicant. The application is mainly directed against the lathe of the infants and against his mother. It appears that opposite -party no. Shri Ahmad Hasan married Smt. Salma Begum in 1965. Smt. Salma Begum was the daughter of the Applicant. By the marriage, Respondent No. 1 had two children, one a son named Babloo and the other a daughter named Babli. The daughter was born in December, 1969, a Allahabad and shortly after birth, her mother died. Both the children were brought up by the Applicant. According to the Applicant, Sri Ahmad, father of the two children surreptitiously took them away on March 30, 1971. She thereupon filed this application. At the time of the making of the application. Babloo was four years old and Babli was 2 1/2 years old.
(2.) THE application is strongly opposed. The main question urged by Sri Bashir Ahmad, learned Counsel for the Applicant, is that the Applicant, who is the maternal grandmother of the infants, is their lawful guardian and the father or the paternal grandmother is not their lawful guardian. He, therefore urges that the two infants should be taken from the unlawful custody of the father and the paternal grandmother and given into the custody of the lawful guardian that is to say, the maternal grandmother. He has drawn our attention to Paragraph 353 in Mulla's Mohammedan Law where it is stated that, failing the mother, the custody of a boy under the age of 7 years and of a girl who has not attained puberty, belongs to the female relatives set out in that paragraph. The mother's mother appears at No. 1 in the enumeration of the female relatives and the father's mother appears at No. 2. It is, therefore, contended on the basis of this paragraph that the Applicant who is the mother's mother of the minor children, is entitled to their custody. This Court can only interfere Under Section 491 Code of Criminal Procedure if it finds that the custody of the two children with the father and the paternal grandmother is illegal. Whether the father and the paternal grandmother are entitled to the custody of the minor children in preference to the maternal grandmother has been decided by a Division Bench of this Court in Siddiq -Un -Nisa Bibi v. Nizamuddin Khan, ILR 54 All. 128. The facts of that case are identical to the facts of our case. In that case, the mother of a Mohammedan girl of 7 years had died and the girl had been brought up by the maternal grandmother. The maternal grandmother applied under the Guardians and Wards Act to be appointed guardian of the person of the minor. This application was opposed by the father. The father made another application in which the paternal grandmother joined, praying for the return of the girl to his custody. It was held n this case that the father was entitled o the custody of the minor girl in presence to the maternal grandmother, it was observed that where the minor has a father who is not unfit 10 be the guardian of the person of the minor, the court has no authority to appoint any person as guardian of the person of the minor. It was further observed in this case that to the extent the personal law of the minor was in conflict with the Guardian and Wards Act, the personal law was superseded. It was ultimately held that, since the father was the guardian and he was not unfit, he was entitled to the custody of the minor girl. This decision applies with full force to the case before us. In this case, it cannot be successfully urged that the father is unfit to have custody of the two infants. We are accordingly of opinion that the father is the guardian of the two infants and is entitled to their custody in preference to the Applicant. The custody of the father, therefore, cannot be said to be illegal.
(3.) IN the view that we have taken, the Applicant is not entitled to the reliefs prayed for. The application is accordingly dismissed. There will be no order as to costs. Application dismissed.;