Full Judgment
Costello, J.
1. This is an application-made under Section 115, Civil P.C., with reference to an order made by the learned District Judge of the 24-Pargannas. The matter before the Court was an application by a Mahomedan lady, Rasulan Bibi, for the removal of her former-husband Rahamatulla Khan from the guardianship of their minor daughter who is said to be about four years of age. It appears that Rahamatulla had divorced his wife Rasulan Bibi under the Mahomedan law because she was carrying an intrigue with some other man and was apparently desirous of getting married with him; and it is suggested that there was some arrangement between the husband and the wife whereby the husband agreed to divorce his wife on her giving up any right she might have with regard to dowry; and as a part of the arrangement it was also agreed by the wife that there should be a consent order appointing the husband as guardian of this little girl. In conformity with that arrangement there was an order by con-sent made on 1st May 1929, and the father was duly appointed guardian. A provision was also made for the mother to have reasonable, if not frequent, access to the girl. The present proceeding was started in the month of August 1929 very little more than three months after the order of appointment had been made, and the mother prayed for the removal of the father as guardian on the ground that, since the child had 'been in his custody, he had not treated her properly, and also on the ground that there was no female relative in the father's house to take proper charge of the child. It is said on behalf of the mother that her husband's mother who had been living with her had remarried and left the house. On the face of it, it seems to be quite clear that the application made by the mother, who apparently originally was not unwilling to surrender the guardianship and custody of the child, was somewhat premature and one cannot help thinking that the real underlying reason for the application was something in the nature of spite against the man rather than real anxiety for the welfare of the child.
2. Once an order appointing a guardian has been made no attempt should be made by the party against whom the order has been made to get that order set aside or varied unless there are substantial grounds and only after (the working out of the previous order has had a proper chance. In the present case however we are not altogether satisfied that the learned Judge rejected the application of the mother upon that footing after having taken the necessary steps to satisfy himself that there was nothing more in the application than the sort of motive I have indicated. * We must take the order of the learned Judge :as it appears on the face of it; and looking at the order we find that the learned Judge himself says:
I do not consider it necessary to hear the evidence.
3. Had it been made clear to us that the mother did not seek to put in evidence before the Court, it was then right that the learned Judge should act of his own motion and upon his knowledge of the case as it was presented to him on the previous occasion. But this lady was desirous of putting fresh facts before the Court and bringing to the notice of the Court circumstances which might throw a different light on the matter from that it bore before on the previous occasions and if the Court then refused to hear either the lady or the evidence which she desired to adduce before it, it would be quite manifest that the Court was acting irregularly. We think that in the interest of the child, which in this class of cases should be the paramount concern of the Court in arriving at its decision, it is desirable that the learned Judge should either take the evidence if tendered or at any rate make it quite clear that no evidence is tendered, or if it is produced before him, it is not of such a character as to warrant him in refusing to vary the order which he has already made. It is plain law that when a matter of guardianship is before the Court under the provisions of Act 8 of 1890 it is incumbent upon the Court to hear such evidence as the parties desire to put before it. In this connexion I would refer to the case of Ghafuran v. Chhanga [1906] A. W. N. 61. If the parties desire to adduce evidence before the Court in a matter of this kind the evidence must be heard and recorded as in the case of a suit. If the Court declines to take evidence which this lady wished to adduce then she is justified in saying that the case has not been properly tried and there would be such an irregularity as would bring the case under the provisions of Section 115. We think that the right order we should make in this case is that it should go back to the lower Court with the direction that the parties should be given an opportunity of putting before the Court such evidence as they desire to adduce; and if either party does not desire to call any evidence that fact should be noted. If, on the other hand, the evidence is produced, the learned Judge may then make such order as he thinks fit after hearing the evidence of the parties and any statement which both or either of them may desire to make. I ought to add that we express no opinion as to the merits of the case, but say that it is entirely a matter for the discretion of the learned Judge provided only that he gives the parties an opportunity of calling their evidence and making their case.
4. The result is that this Rule is made absolute on the terms indicated above. But in the circumstances of this case there will be no order for costs.
Suhrawardy, J.
5. I agree.