Deoki Nandan, J. - (1.) THIS First Appeal arises from an order allowing the respondent's application under Section 25 of the Guardians and Wards Act, 1890, for the custody of her minor son, Abdullah. He was born in April, 1979, and is said to have been snatched from the respondent's lap in January 1980 by the appellant, his father. The respondent is said to have been turned out of his house and also divorced thereafter. The application was promptly moved on 30th January, 1980. It was allowed by an order dated March 16, 1980. While admitting the appeal under order 41 rule 11 of the Code of Civil Procedure, this Court suspended the operation of the order under appeal. After hearing parties on the appeal, I was convinced that the respondent is entitled to the custody, and the order under appeal does not call for any interference on the merits, but a preliminary objection to the District Court to pass the order of custody on an application under Section 25 of the Guardians and Wards Act was raised in this case. The objection was that, under the Muslim Law the father is the lawful guardian of his minor children and the mother has only a right of Hizanat, as it is called, which means merely custody, in the case of a boy till he attains the age of seven years and in case of a girl till she attains the age of puberty, and thus the mother, not being the guardian of the person of the minor, she could not apply for custody under Section 25 of the Guardians and Wards Act particularly when the opposite party is the child's own father and lawful guardian. This contention was supported by the ruling of a learned Judge of this Court. G.D. Sehgal, J. sitting singly, in Hashmat Ali v. Suraya Begum : A.I.R. 1971 All. 260, wherein it was ruled that Hizanat means mere custody for rearing up the child, and guardianship remains in the father, and that, although the mother may have been in the custody of her minor son, and the father may have taken him away, she can enforce her right of Hizanat of the minor only by a suit and not by a proceeding under Section 25 of the Guardians and Wards Act, 1890. With profound respect to the learned Judge and for the reasons to be stated presently, I was not happy with the conclusion arrived at by him, and, apart from several other cases cited before me where a Muslim mother's right of Hizanat was enforced on an application under Section 25 of the Guardians and Wards Act an unreported decision of another learned Judge of this Court D.S. Mathur, J. sitting singly in Razya v. Siraj Ahmad F.A.F.O. No. 166 of 1965, was cited, wherein it was held that under the Muslim Law, a mother entitled to the custody of a child by her right of Hizanat, is the guardian of the person of the child, and an application under Section 25 of the Guardians and Wards Act was allowed by the learned Judge reversing the District Court's order. In view of this apparent conflict and the fact that the decision of D.S. Mathur, J. was not brought to the notice of G.D. Sehgal, J. and since I am of the view that a Muslim mother could enforce her right of Hizanat by an application under Section 25 of the Guardians and Wards Act, 1890, it became necessary for me to refer this case to a larger bench for reconsideration of the ruling of G.D. Sehgal, J., in Hashmat Ali v. Suraya Begum (Supra). Further, as the reference was bound to delay the final disposal of this First Appeal From Order, and since I was convinced on the merits that the mother is entitled to the custody of the child, whose age is now about three -and -a -half years, by an order, dated the 18th October, 1982, I have vacated the interim order, and fixed a date for the production of the child by the appellant in the court of the District Judge Azamgarh, for delivery of his custody to the respondent.
(2.) I am now stating my reasons for my disagreement with the view of G.D. Sehgal, J. The first reason is that, with respect, I agree with the view of D.S. Mathur, J., that a Muslim mother entitled to her Child's Hizanat is a guardian of the child's person for the purpose of Section 25 of the Guardians and Wards Act, 1890. D.S. Mathur, J., has referred to the Durrul Mukhtar and the Fatwa Alamgiri, A reference to those authorities and the Hidaya, as translated by Hamilton, would show that, under the Muslim Law, guardianship is for purposes of marriage, for purposes of rearing a child, and for purposes of managing his property or entering into contracts on his/her behalf. The child's person is involved only in the provisions, which direct that a boy upto the age of seven and a girl upto the age of puberty must be brought up by the mother. The husband, even if he has divorced the wife, has to provide her maintenance and residence so long as she is rearing up his children that way. It is more of an obligation than a right, and the mother cannot free herself from that obligation, which the Muslim Law imposes, of rearing up her children. She is declared unfit to do so only in certain specified circumstances such as remarriage or misconduct. This obligation of a Muslim mother to bring up her children until the boy attains the age of seven and the girl attains the age of puberty is called Hizanat, and this is the only kind of guardianship of person, which would appear to have been spoken of by the Muslim law. In the Modern Text Books on the Muslim law, such as Mulla's principles of Mahomedan Law, Chapter 18, headed as Guardianship of Person and Property is divided into three parts: A. - -Appointment of Guardians: B. - -Guardians of the Person of a Minor: and C -Guardian of the Property of a minor. Part B is sub -divided into three parts: (i) Custody of boys under seven and of girls under the age of puberty. (ii) Custody of boys over seven and of girls who have attained puberty and (iii) Custody of illegitimate Children. Under the first of these, paragraph 352 defines and describes the mother's right to custody of infant children, called Hizanat. Paragraph 353 gives a list in order of preference of the female relations in default of the mother entitled to the custody of a boy under seven or a girl who has not attained puberty. Paragraph 354 defines the disqualifications of the mother and other females, on the existence of which the right of custody is lost. Paragraph 355 specifies in order of preference the male paternal relations in default of female relations who have a right to such custody. Paragraph 356 defines the right to custody of a child -wife and it says that the mother of girl, who is married, but has not attained puberty, is entitled to the custody of the girl as against the husband of the girl. Thus, the entire chapter relating to guardianship of person of a minor speaks of Hizanat. None of the provisions contained therein say that, although the mother or in default of the mother the female relations entitled to custody are mere custodians of the child and the real guardians of the person of the child is the father, or failing him the executor appointed by his will or father's father or failing him also the executor appointed by his will, who are the only guardians of a minor child. However, it does appear that the father has some powers of control and is under a duty to maintain not only the minor, but also the minor's mother so long as she is required to perform the duty of bringing up the child, and, for that purpose, the mother is required not to live too far away from the father.
(3.) IN Babu Ram Verma's Mohammadan Law, Paragraph 96, Chapter 8, guardianship is defined as of three kinds (1) for purposes of marriage; (2) for the person of the minor; and (3) for the property of the minor; and, while dealing with guardianship of person, it is equated with Hizanat even in the title of the third part of chapter 8 immediately above paragraph 102.;