JUDGMENT
1. This is an appeal asking that an order of Mr. Hari Har Prasad of 25th April 1929, may be set aside. The position is this, that in November 1924, there was a family living in a village in the District of Jaunpur, the husband by name being Anup Kahar and his wife being Mt. Jhapatta. They had at that time undoubtedly a son named Behari, a daughter named Mt. Hinni, another named Mt. Gunni and a third named Mt. Hubraji. There is no evidence on which we can act that at that date there were any other members of this family. Anup Kahar died in November 1924 and thereupon within a very few days the widow and the daughters and the son migrated to Jaunpur and at that place, there was a sudden conversion of Mt. Jhapatta to Mahomedanism, she assuming the name of Mt. Ala Bandi. That name she has borne ever since. At the same time it is said that the three minor children whose names we have given were converted to Mahomedanism, Mt. Hinni's name being changed to Mt. Sakina, Mt. Gunni's name being changed to Mt. Zainab and Mt. Hubraji's name being changed to Mt. Salima. There also comes into this story a brother of the husband of Mt. Jhapatta by name Dhanai who was also won over to Islam and became by name Abdul Rahman. He is the appellant in the present appeal. Nobody took any interest whatsoever in this event until a question arose with regard to the alleged marriage of Mt. Sakina. She was said to have been married to a son of a prostitute and there was a controversy before the District Judge of Benares, it being contended on the one side that Abdul Rahman had brought about this marriage and OK the other it was asserted that the mother of the girl had not been properly watchful about the children in her charge. The application by the mother of the girl that she might be made the guardian of Mt. Sakina was refused and the District Judge being of opinion that a neutral person would be more advantageous to the girl ordered her to be taken over by the Mahommedan Orphanage of Lucknow.
2. Dr. Ansari, the Secretary of that association said that he would accept the child and she has remained from the 3rd March 1926, until to-day in the custody of the Mahommedan Orphanage of Lucknow or in the custody of Dr. Ansari and has been treated there with kindness and is receiving education. On 20th August 1928, a legal practitioner by name Pandit Jagannath Pande woke up to the fact that there was an opportunity to get hold of these three girls and he made an application which may, in the first instance have gone to the District Judge but by him was sent to the Sessions and Subordinate Judge, and this was probably the reason why the Sessions and Subordinate Judge was assuming jurisdiction. The applicant simply asked that they being children born of Hindu parents, they might be handed over to the Hindu Sabha to be taken care of and instructed in the tenets of the Hindu religion. Pandit Jagannath Pande went into the witnessbox and gave evidence and first of all he made no attempt to explain the great delay between December 1924 and August 1928 and secondly, no one could have been more designedly vague about the Orphanage where these children were sought to be consigned. There was the suggestion that there was one child at the Orphanage and some other women. There is not one word about the sort of place the Orphanage is, the number of children that have passed through the care of the Orphanage, nothing to show that it has any substantial funds behind it or that it has ever imparted education to any children whatever. Pandit Jagannath Pande does not himself say what particular qualifications he possesses to be the guardian of these three children. The learned Sessions and Subordinate Judge never considered this matter from what, in our opinion, was the right view; the right view must be what is best in the interests of the children.
3. Now it might very well be that when Mt. Jhapatta changed her name to Ala Bandi having embraced Mahomedanism, it should have been the duty of people interested in these matters to intervene at once and to go to the Court to ask that the Court would protect her minor children from being converted to Mahomedanism and if anybody had then come forward and made that application and satisfied the Court that they had the capacity to educate and bring up these children as Hindus and the honest intention to do so, the Court might very well have passed the order taking them out of the possession of the mother. But as we have pointed out, nearly four years have been allowed to elapse without any application ever having been made. The position as regards Mt. Sakina is that she has been for four years and four of the most impressionable years of her child's life in an institution where she states that she is happy and well looked after. The institution is prepared to continue to maintain her and in the ordinary course if we make no order to the contrary the child will remain there until she attains the age of puberty and then the question will arise whether she will accept or repudiate the marriage which is said to have taken place between her and the son of a prostitute. As regards the other two children the position is not so clear. On the one hand, the Orphanage represented by Pandit Jagannath Pande says that these two children are not married. The appellant contends that they both are married and even goes to the length of saying that both of them are living with their husbands. We cannot decide that matter but we treat the welfare of these two children on the same lines as we consider that of Mt. Sakina and, that is, that they having been with their mother all their lives, it is not desirable at this late stage, if they are not married, they are certainly approaching the time of marriage, to interfere in any way with their mode of life. This therefore disposes of this appeal and we set aside the order of Mr. Hari Har Prasad and direct that Mt. Sakina is to remain with Dr. Ansari in the future as she has remained in the past until such time as some further order may have to be made putting an end to the guardianship. We also make no order restricting in any way the personal liberty of Mt. Sakina and Mt. Zainab. We allow the appeal and direct that the costs of the application in the lower Court and of this appeal be paid by Pandit Jagannath Pande. No order is necessary on the two connected applications.