The Reminiscences of Zafrulla Khan — Page 211
195 REMINISCENCES OF SIR MUHAMMAD ZAFRULLA KHAN Holland, and did not know the Dutch language. There was no dispute with regard to the guardianship of the child's property, which she had inherited from her mother, for it was recognized that the father was the guardian of the child and of her property. The father had taken proceedings in the Netherlands Courts with regard to the guardianship of the child and had been duly appointed the guardian. But when he claimed the custody of the child, the Swedish courts held that the custody of the child had been entrusted to the child's maternal grandparents not under the law of guardianship but under a special Swedish law regulating the welfare of minors. In this case, it had been found that the minor suffered from nervous depression, and it was necessary that she should be taken special care of. It was claimed that this took the case out of the purview of the Law of guardianship. The Government of the Netherlands took up the case of its national, the father of the minor, and filed an application against Sweden, asking the Court to declare that under a Private International Law Convention relating to Guardianship, to which both States were parties, and which provided that in case of a dispute arising under the Convention, the Court would have jurisdiction, the father was entitled to the custody of the minor. The Court held that the Swedish law did not fall within the purview of the law of guardianship but related to all minors, whether their parents were alive or not and whether a question of guardianship was involved or not, who needed special care. The case was, therefore, not governed by the Convention. My own approach to the case was based on the relevant material and the provisions of the international Convention. But to me this distinction between guardianship and custody did not come as a surprise, inasmuch as Muslim law makes a clear distinction between guardianship, which it calls Wilaya , and custody, which it calls Hazana. Under Muslim law, guardianship of minors belongs to the father, and in default of the father, to the paternal grandfather, and in default of the paternal grandfather, to the male paternal relations in order of propinquity. On the other hand, the custody of a male child up to seven years of age and the custody of a female child throughout minority, belongs to the mother and in default of the mother, to the maternal grandmother and thereafter to female relatives on the mother's side in order of