JUDGMENT G.D. Sahgal, J.
1. This appeal is directed against an order of the District Judge of Bahraich passed on an application made by the respondent under Section 25 of the Guardians and Wards Act for the returning of the custody of her ward, her minor son, then aged about 4 years.
2. The parties to this litigation are Mahomedans, the appellant being the father and the respondent the mother of the minor. There has been a divorce between them. The allegations in the application were that during the period they were in lawful wedlock the minor was born and though there has been a divorce since then he has been living with the mother. A few days prior to the making of the application by the respondent before the District Judge, it was alleged, the minor was taken away on some pretext by the father. It was in these circumstances that the application was made under Section 25 by the mother to the effect that it will be for the welfare of the ward, the minor, to be returned to the custody of his guardian, the mother. That application has been allowed. The father has come up in this appeal and challenges that order.
3. Section 25(1) of the Guardians and Wards Act provides:
"25 (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian."
4. In order to attract the application of this provision of law there must be a ward or a minor. He must have left or been removed from the custody of the guardian of his person and it should be for the welfare or that minor to return him to the custody of the guardian. In these circumstances the court may make an order for his return.
5. A "guardian" has been defined under Section 4(2) of the Act as meaning a person having the care of the person of a minor or of his property, or of both his person and property. In this case we are not concerned with the property but we are concerned with the person.
6. In the tight of this definition let us examine whether the mother, who made the application under Section 25, was the guardian of her minor son.
7. Under the Mahomedan Law the mother is entitled to the hizanat of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father.
8. The word hizanat has been translated as "custody" by the authors on Mahomedan Law (See Mulla"s Principles of Mahomedan Law, Sixteenth Edition, Article 352).
9. Ameer Ali in his Mahomedan Law, Volume II, Fourth Edition, quotes Tanwir-ul-Absar by pointing out that "the hazina is the woman to whom belongs the rearing up a child". He also quotes Fata-wai Alamgiri which is to the effect that "the mother is of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution". After quoting from Radd-ul-Muhtar he points out that it will be seen that this right belongs to her qua mother, and nothing can take it away from her except her own misconduct. At page 295 he further points out that among the Hanafis the accepted doctrine is that the mother's hizanat of a male child ends with the completion of his seventh year. At page 310 he further points out that the mother can on no account give up her right of hizanat; for even if she were to obtain a khula in lieu of abandoning her right to her child's custody, the Khula will be valid and she will retain her right of hizanat.
10. Obviously under the personal law applicable to the parties to this litigation the mother, i.e., the respondent, who made the application before the District Judge, was entitled to the hizanat or the custody of the child. But the question is whether in view of her being so entitled, can she be said to be the guardian of the child.
11. The law recognises the father to be the natural guardian of the minor. Under Section 19 of the Guardians and Wards Act the court is not authorised to appoint or declare a guardian, of the person of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor. This provision exists because the father is the natural guardian of his minor children and there is no occasion for him to be appointed as such. The question, therefore, is whether the right of hizanat amounts to the taking away of that right of father, i.e., whether the father ceases to be the guardian of his minor children among Maliome-dans so long as the male child does not attain the age of seven years and the female the age of puberty.
12. The matter has been considered by a Division Bench of our High Court in Mt. Siddiqunnissa Bibi v. Nizamuddin Khan, AIR 1932 All 215 and by a Full Bench of the erstwhile Chief Court of Oudh In Mt. Ghuran v. Syed Biaz Ahmad, AIR 1935 Oudh 492. In the Allahabad case the Bench consisted of Sulaiman, Acting, C. J. and Sen, J., and they gave separate though similar opinions on the point.
13. Quoting from Ameer Ali, Sulai-man, Acting C. J., pointed out that the first and primary natural guardian of a minor is the father, and then he cited from Imam-bandi v. Mutasaddi, AIR 1918 PC 11, a Privy Council case, as follows:--
"It is perfectly clear that under the Mahomedan Law the mother is entitled only to the custody of the one person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian: the father alone, or if he be dead his executor (under the Sunni Law) is the legal guardian."
The conclusion drawn by him is that the mere fact that a female relation is entitled to the custody or care of the minor girl up to a certain age would not result in the father not being the guardian of the child.
14. Sen, J., at page 219, remarks: "Under the Mahomedan Law the maternal grandmother is not the guardian of the person of the minor granddaughter. She has the right of hizanat till the girl attains puberty, but hizanat is not the same thing as guardianship of the person. The guardianship of the person rests in the father."
15. It would thus appear from this authority that the right of hizanat is not the same thins as the guardianship of the person and in spite of the right of hizanat of a female relation, the guardianship of the father continues.
16. In that case it was the father who had made an application under Section 25 of the Guardians and Wards Act for the custody of his minor daughter who was with her maternal grandmother who had a right of hizanat and the father's application was allowed.
17. The case of Mushaf Husain v. Mohammad Jawad, 21 Oudh Cas 194 = (AIR 1918 Oudh 376) was referred to by Sulaiman, Acting C. J., for holding that there was no reason to restrict meaning of the word "custody" to the physical or actual custody of the minor. Even if the Ward is in the actual custody of another person with the permission of the guardian, he or she would be under the guardian's constructive custody, and even though the girl was living with the grandmother she was said to be under the constructive custody of the father.
18. The facts in the Oudh Full Bench case were that the respondent had sent his wife to the house of her mother Smt. Ghuran from Kanpur to Lucknow for the sake of her confinement. She had a daughter aged two years who also came along with her mother. The respondent's wife gave birth to a child, but soon after the birth the child and the mother died. The minor daughter, who had been sent along with her mother, had since then been living with Mst. Ghuran. The father wanted to take his minor daughter into his custody but was not allowed to do so and he accordingly made an application under Section 25 of the Guardians and Wards Act. That application had been allowed by the lower court, the appeal being dismissed by the Chief Court. It was pointed out in that case following Mushaf Husain's case (supra), that the word "care" had been used in Section 4(2) and not "custody" which were different one from the other. It was also pointed out therein following Ulfat Bibi v. Bafati, AIR 1927 All 581 that the right of the mother, who had the custody of the child, went side by side with the father who was the natural lawful guardian of the child. Siddiqunnisa's case (supra) was also referred to in that judgment and it was remarked that the mere fact that a female relation is, according to the Mahomedan Law, entitled to the custody of the person of a minor girl upto a certain age would not result in the father not being the natural guardian of the child and that the custody of such person would by the constructive custody of the father. Srivastava, J., who appended a short note was explicit in explaining what hizanat really meant He says:
"In my opinion hizanat is only custody for the rearing up of the child Although the maternal grandmother has the right of hizanat under the Mahomedan Law, yet the father is responsible for providing funds for the maintenance of the minor and is her natural guardian. Thus he must be deemed to have the care of the person of the minor within the meaning of the definition of 'guardian' in Section 4(2), Guardians and Wards Act, even though the minor is not in his actual physical custody."
19. A perusal of this case would show that hizanat is not the same thing as guardianship. Hizanat is a mere custody For the rearing up of the child, the guardianship remaining in the natural guardian who happens to be the father in this case and who was the father in the two above cases referred to.
20. No doubt, in two other cases of OUT High Court, namely Haidri Begum v. Jawwad Ali Shah, 1934 All LJ 399 = (AIR 1934 All 722) and Mt. Sakina Begam v. Malka Ara Begam, AIR 1948 All 198, the mother was given preference over father in the matter of appointment as guardian of her minor children, but these cases were for the appointment of guardian under Section 7 of the Guardians and Wards Act and not under Section 25 for the restoration of the custody of the minors. In fact Haidri Begum's case was under Clause 12 of the Letters Patent under which the power similar to that under Section 7 of the Guardians and Wards Act was exercised.
21. It may be that even in the instant case if an application had been made by the mother under Section 7 of the Guardians and Wards Act, the form of which is prescribed under Section 10, she would have een entitled to preference on the facts of the case regarding which it is not necessary to express any definite opinion, but when the application is made under Section 25 of the Guardians and Wards Act which requires that the person who seeks the help of the court in the restoration of the child must be the guardian of the child, the mother being not the guardian, though she may have a right to the custody of the child, i.e., the right of hizanat under the Mahomedan Law, is not entitled to the relief claimed. Section 4(2) uses the word "care" and not "custody" and "care" is different from "custody" though the two words may be used synonymously also as they seem to have been used by Sulaiman, Acting C. J., in his judgment. The distinction has been brought out in Full Bench Oudh case, already cited above, where quoting from Mushaf Husain's case (supra) it has been pointed out that the word used in the definition is "care" and not "custody" and a guardian may in his discretion entrust the custody and education of his children to another but by doing so he does not cease to be his children's guardian, that being an office which in his lifetime he cannot delegate to a third person. A natural guardian has the care of the minor even though the minor may be in the custody of some one also. "Care" is a wider term than "custody". Custody is only the physical keeping, while care amounts to looking after. The mother may have been in the custody of her minor son at one time which custody has been taken away by the father and she may under the law of hizanat be entitled to the custody of the minor so long as he does not attain the age of seven years but she is not the guardian and under Section 25 of the Guardians and Wards Act she is not entitled to the custody being restored to her.
22. The question then arises as to how will she be able to exercise the right which the law gives to her ? That right she can exercise by filing a suit and not by proceeding under Section 25 of the Guardians and Wards Act which is meant only for being exercised by a person who is the guardian within the meaning of that term under that provision of law.
23. An authority on all fours, which is against this view, has been cited on behalf of the respondent, being Zynab Bi v. Mohd. Ghouse Mohideen, AIR 1952 Mad 284. That authority also takes into consideration Imambandi's case (supra), but relying on the provisions of Section 25 of the Guardians and Wards Act and the definition of the word "guardian" given under Section 4(2) of that Act, the word "care" has in that case been equated to "custody". It has been remarked therein that it was not necessary for a person as in that case i.e., a Muslim mother, to show that she was legal or natural guardian in order to entitle herself to the relief given under Section 25. It was sufficient if she was a person having the care of the person of the minors and in that case the minors being a girl of five years and the boy of two years the mother was held as being entitled to the care of the person of the minors by virtue of her right to hizanat. Reliance was also placed on the two authorities of this Court, referred to above, namely, 1934 All LJ 399 = (AIR 1934 All 722) and AIR 1948 All 198, but those were the cases, as already pointed out, that arose out of applications under Section 7 of the Guardians and Wards Act for what had to be seen in those cases was as to which of the two competing claims for the appointment of guardian, namely that of the mother and the father, should be preferred and in the circumstances in the two cases the right of the mother was preferred on account of the age of the child. Those cases are distinguishable.
24. Reference was made in the lower Court's judgment to a certain compromise between the parties arrived at in December, 1964 by virtue of which the mother agreed to hand over the minor to the custody of the father as to which it was claimed that since then the minor had been residing with the father. The learned District Judge held that this arrangement had never been acted upon. No exception has been taken to that finding before me on behalf of the respondent. In any case, as has already been pointed out above, quoting from Ameer Ali, the mother can on no account give up her right of hizanat; for even if she were to obtain a khula in lieu of abandoning her right to her child's custody, the khula will be valid, and she will retain her right of hizanat. The mother, therefore could not give her right of hizanat, but for the reasons already referred to above in spite of her right of hizanat, as she is not the guardian of the minors, she was not entitled under Section 25 of the Guardians and Wards Act to the custody of the minor whom it is alleged, had been removed from her custody by the father, the father being the natural guardian of the minor.
25. The result is that the appeal is allowed, the order of the District Judge set aside and the application of the respondent under Section 25 of the Guardians and Wards Act dismissed. In the circumstances of the case, no order is made as to costs.