Will of minor and adherence to personal law are mandatory prerequisites for appointing a guardian under Section 17.

The Appellant No. 1 (mother) and Respondent (father) were married in 2018 under Sunni Muslim rites and had a son, Daniyal, in 2019

Following matrimonial discord, the mother began living separately with the child in 2020.

The father filed Guardianship Case No. 54 of 2021 under Section 25 of the Guardians and Wards Act, 1890

Although the Appellants entered an appearance and filed a written statement, they subsequently abstained from the proceedings

The Family Court, Patna, without framing formal issues or examining the minor, passed an order on 16.04.2025 appointing the father as the guardian and granting him custody, while simultaneously directing a further appearance to "disclose the final result"

The court applied Section 17 of the Guardians and Wards Act, 1890, which mandates that the appointment of a guardian must be guided by the "welfare of the minor" consistently with the law to which the minor is subject

Section 17(5) prohibits appointing a guardian against their will, and Section 17(3) allows consideration of the minor’s intelligent preference

The court also relied on Order XIV Rule 1(5) of the CPC, which requires the court to ascertain material propositions of fact and law and frame issues accordingly

Under Mohammedan Law, the principle of Hizanat (custody) generally grants the mother custody of a male child until he reaches seven years of age

The High Court found that while the lower court was not required to pass a formal ex-parte order due to the Appellants' voluntary absenteeism after filing a written statement, it committed a fatal procedural error by skipping the framing of issues

The Court reasoned that under Order XIV CPC, framing issues is a "penultimate" necessity to clarify the points of variance between parties

The Family Court ignored Section 17(5) of the Act by failing to ascertain the "will" or "intelligent preference" of the child, who was over six years old and capable of forming an opinion

The Court observed that the lower court also failed to consider the applicability of Mohammedan Law (specifically Hizanat) and passed an "ambiguous" order that appointed a guardian while claiming the "final result" was yet to be disclosed

The matter was remanded to the Principal Judge, Family Court, Patna, for fresh consideration starting from the stage of framing issues, with a direction to conclude the trial expeditiously within six months