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(6) Syed Ameer Ali, in his book on "Mohammedan Law" 6th edition Volume Ii at page 223 says "the mother is of all persons", says the Fatawai 'Alamgiri', "the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution". The learned author has further said that the Mohommedan Law supports the mother's natural right to the custody of her children and allows it to take precedence on the paternal right for a certain specified time, and at page 225 of the above book he has said 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 and that the mother, therefore, is entitled in preference to the father to the custody of her infant male child under seven years of age. While deducing the principle governing hizanat at pages 225-226 Syed Ameer Ali, has said, "it will be seen that, though the period of hizanat varies among the different schools, the general principle, which governs its duration, is founded essentially on the interests of the child.....................It may be stated, as a general rule, that as the right of hizanat has in view the exclusive benefit of the infant, each particular case would be governed by the doctrine in force among the sect to which the child is supposed to belong; or, if that cannot be ascertained, by a consideration of what would be best for the child as a Moslem child and that this rule has been adopted by the Court of Algiers, and no difficulty has been found in its application to individual cases."

(7) Again in Chapter Xiv of the Hedaya a commentary on The Mussulman Laws by Charles Hamilton at page 138, it is stated that if the separation takes place between a husband and wife who are possessed of an infant child, the right of nursing and keeping it rests with the mother, but at page 139 it is stated that, Kasaf has said that the hizanat with respect to a boy ceases at the end of seven years but the right of hizanat is annulled by her marrying a stranger.

(8) It may also be noted that Mulla in his book "Principles of Mahomedan Law" 16th Edition at page 324, has said that the mother is entitled to the custody (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.

(9) The principle deducable from the above referred to commentaries is that the right of hizanat is principally founded for the benefit of the child and this right is available to the mother in preference to the father as the mother is most likely to bestow care, love and affection on the child, but this right is available to her only till the child attains the age of 7 years and certainly on her re-marrying a person not related to the child within the prohibited degree, she disentitles herself to this right.

(11) In the instant case we find that the respondent's mother is alive and it is submitted by the learned counsel for the respondent that the re-marriage of the respondent would in no manner interfere with the welfare of the minor as the mother of the respondent is there to take care of the minor.

(12) Mr. Bhagwat Dayal, the learned counsel for the respondent strenuously urged that the principles of Shariat Law alone were applicable in the present case and according to Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (Act No. Xxvi of 1937) notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and waqfs (other than charities and charitable institutions), the rule of decision in cases where the parties are Muslims shall be in the Muslim Personal Law (Shariat). The learned counsel, therefore, contended that in matter of guardianship according to Section 2 of the Muslim Personal Law (Shariat) the decision has to be in accordance with the Muslim Personal Law (Shariat) and the Muslim Personal Law was that the mother by re-marriage disentitles herself to the custody of the minor even if the minor is under the age of 7 years. In the instant case, the learned counsel submitted, admittedly the mother has re-married and therefore she has disentitled herself to the custody of the minor and that other considerations in view of section 2 of the Shariat Act cannot be allowed to prevail as the rule of decision in cases regarding guardianship of the minor where the parties are Muslims shall be the Muslim Personal Law (Shariat). In support of his contention the learned counsel relied on C Mahammad Yunus v. Syed Unnissa and others , in which their Lordships of the Supreme Court while examining the provisions of Section 2 of the Muslim Personal Law (Shariat) Application Act (1937) as amended by Madras Act 18 of 1949 observed that it was expressly enacted in the Shariat Act as amended that in all questions relating to the matters specified in the Act the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law. At page 811 their Lordships observed, "the injunction is one directed against the Court: it is enjoined to apply Muslim Personal Law in all cases relating to the matters specified notwithstanding any custom or usage to the contrary". It may be noted here that under Section 2 of the Shariat Act, 1937 in questions relating to charities and charitable institutions and charitable and religious endowments a custom or usage would prevail. But under section 2 as amended by Madras Act 18 of 1949 the rule of decision relating to the above said matters, notwithstanding a custom or usage to the contrary, was the Muslim Personal Law. That being so, in t above said case the question of custom was under consideration by their Lordships of the Supreme Court and it was in that context that the observations extracted above were made by their Lordships that the injunction is one directed against the Court: it is enjoined to apply the Muslim Personal Law relating to the charitable institutions notwithstanding any custom or usage to the contrary. That being so, no help can be drawn by the respondent from the above-cited authority as their Lordships were considering a limited question only, namely, the effect of amendment to section 2 of the Shariat Act by Madras Act No. 18 of 1949 and the question of guardianship of the minor was not under consideration. Besides, as would be observed from the statement of objects and reasons which led to the passing of the Muslim Personal Law (Shariat) Application Act (1937) was that the status of Muslim woman under the so-called customary law which was simply disgraceful was sought to be raised to the position to which they are naturally entitled. The learned counsel for the respondent next relied upon Mt. Ultat Bibi v. Bafati in which it was observed that under the Mahomedan Law the father is the natural lawful guardian until by some order of a competent Court he is deprived of his rights as such, and the father is automatically entitled to exercise the rights of a guardian without any order by a Court appointing him as a guardian. It was further observed that side by side with the right of the father as the lawful guardian exists the recognized right of the mother by Muhammadan Law to have the custody of the child up to the age of seven. But if the mother had been divorced and had married a second husband she is not a person better suited to have the custody of the minor child than the father, however, unsuitable the father may be and in such an event the mother is not a person who ought to be heard to say that the father is unsuitable as a guardian. Reliance was also placed on Mir Mohamed Bahauddin v. Mujee Bunnisa Begum A Sahiba, in which it was observ- ed that the custody or what is called 'hizanat" of a minor girl until she attains puberty and of a minor boy until he attains the age of 7 years is with the mother, but even then the legal guar- dian is only the father. It was further observed that the mother cannot continue to have the custody of the child, if she marries a second husband, in which case the custody belongs to the father. The learned counsel for the respondent drawing support from the above said two authorities contended that since the appellant had re-married and has a child from her second marriage, she has disentitled herself to the custody of the minor. Further it was stressed that the appellant and her mother are keeping the minor out of the way of the respondent and even do not tell the minor that respondent is his father. This act on the part of the appellant and her mother amounts to wil- fully preventing the father who is the natural guardian of the minor from having anything to do with the minor. In such a case goes the argument whatever right of hizanat the appellant possesses is liable to forfeiture as the hazina is preventing the father from exercising the necessary supervision or control over the minor which virtually amounts to removing the minor with- out the consent of its father from his usual place or residence. Support for this contention was drawn from a decision of the Full Bench in Mt. Ghuran v. Syed Riaz Ahmad (A. 1. R. 1935 Oudh 492)0.