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Report No. 83

6.64. Section 19 and proposed saving regarding custody.-

Apart from this, section 19 creates difficulties in the case of children whose custody is, by personal law, entrusted not to the father, but to some other person-for example, maternal relations as in the case of Muslims.1

Though the father is the guardian even of a Muslim girl who has not attained puberty,2 it is the mother or mother's mother who is entitled to custody until puberty, amongst Hanafi Muslim.3 This applies even to married girls, until puberty.4

For this reason also, it is desirable to amend section 25 as stated above.

1. (a) Fatimat v. Shaikh Peda, AIR 1941 Mad 944 (Mother's Mother v. Father); (b) Nur Kadir v. Zuleikha, 1884 ILR 11 Cal 649 (Mother's Father v. Husband).

2. Fatima Bibi v. Shaikh Peda, AIR 1941 Mad 944.

3. See Md. Shafi v. Shamin Banoo, AIR 1979 Born 56 (159, 165) (May).

4. Karban v. K.E., 1904 ILR 32 Cal 444 (446).

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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