The Reminiscences of Zafrulla Khan — Page 212
196 REMINISCENCES OF SIR MUHAMMAD ZAFRULLA KHAN propinquity. All of them would have to be exhausted before custody would go to the female relations on the father's side. The distinction between guardianship and custody is based on the claims of natural affection and the practical considerations affecting the welfare of minors. Thus, the administration of the property of the minor and making arrangements for its upbringing and education and making provision for the costs, and also guardianship for marriage, all belong to the father, and male relations on the father's side. But, the actual care and upbringing, and the custody of the minor, belong to the mother and the female relations on the maternal side. Question : How much of this has been written into the Pakistan law, by the way, or how much is just accepted in interpreting it? Khan : So far as Pakistan is concerned, in all matters of personal relationships, such as, marriage, divorce, guardianship, custody, inheritance, succession, gifts, wills, legitimacy, etc. , it is statutorily provided that Muslim Law shall apply to Muslims. We do not write the Muslim Law itself into our statute books except when some doubt is cast on what the law is on a particular point. Then we pass a declaratory law, saying this is the law. The Muslim law is based on the Qur’an and the Sayings of the Prophet and the writings of the jurists. When a question of Muslim law arises, it is enough to show from the writings of the jurists that the preponderance of opinion is in support of one position or the other, and the court decides on that basis. Question : In a case like this, this kind of question with regard to guardianship and custody, this would be assumed, it would be clear enough in customary law. . . ? Khan : Not customary law, because that is quite a distinct concept; but under Muslim Law, yes, it is quite clear; there is no doubt about it. Question : And this would be within a Pakistan court ? Khan : Yes. As a matter of fact, even non-lawyers, know that guardianship of a minor under Muslim Law belongs to the father and custody belongs to the mother, in the case of a male child up to seven and in the case of a female child throughout minority. We think that this is in perfect accord with the claims of nature, as well as with the proper upbringing of the minor. A minor needs affection and a type of