SHIV KUMAR SHARMA, J. - (1.) 'The children are not mere chattels; nor are they mere play things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in the normal balanced manner to be successful members of the society and the Guardian Court in case of a dispute between the mother and father, is expected to strike a just, and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.' These observations were made by the Apex Court in Rosy's case (AIR 1973 SC 2090). In the light of these directions, I proceed to consider the welfare of the minor child Pooja and the rights of her parents Kamlesh Kumari and Laxmi Kant (appellant and respondent in this appeal) over her. Back Ground Facts
(2.) FIRST the facts. Appellant and respondent were married on May 17, 1986 and Pooja was bom on September 3, 1987. Thereafter differences arose between them. Appellant wife (for short wife) with her daughter Pooja who was nine months of age at the relevant time started residing at Sewar in her parental home. The respondent husband (for short 'husband') instituted a petition for divorce against the wife under Section 13 of the Hindu Marriage Act, 1955 (for short Act') on the ground that she was living in adultery. The petition was allowed and an ex -parte decree was passed on July 5,1990. Wife did not file appeal against the said decree. On May 13,1991 the husband initiated proceedings under Section 26 of the Act seeking custody of minor child Pooja. The wife opposed the application. Learned lower Court framed two issues, one in respect of entitlement of custody of Pooja and another with regard to relief. Husband examined himself whereas wife, in rebuttal, produced herself, Brij Dayal (her father) Faili Ram (Sarpanch) and Pooja (minor child). Learned District Judge, Bharatpur, Vide order dated May, 27,1995 allowed the application of husband and directed the wife to deliver the custody of minor child Pooja to husband within a period of two months from the date of the order. Against the said order, the wife has preferred this appeal. Rival Contentions Mr. B.L. Mandhana, learned Counsel for the appellant wife, canvassed firstly that the Court below had no jurisdiction to entertain the petition under Section 26 of the Act as no proceedings were pending before it and the decree for divorce was passed much earlier. The second contention of learned Counsel is that the Court below has not properly considered the welfare of minor child Pooja. For the minor child the husband is like a stranger. He never supplied the child anything of daily need and till date took no interest in the maintenance. Pooja was examined by the Court below where she stated that s*he was happy with her mother and was looked after very well by her and wanted to live with her mother. Reliance is placed on Mohd. Faruq Lurshi v. Smt. Manzar Bano, RLW 1986 page 361).
(3.) ON the other hand Mr. Tripurari Sharma, learned Counsel for the respondent husband supported the impugned order and placed reliance on Sudershan Kumar v. Smt. Deepak, AIR 1981 P&H; 305, A.R. Munuswamy v. Hansa Rani, AIR 1975Madras 15,Pooranv. Smt.Angoori, 1976 HLR801,Prakash Chand Jain v. Smt. Chandrawati Jain, AIR 1996 Rajasthan 162, and Dr. Snehlata Mathur v. Mahendra Narain, RLR 1978 page 554. Maintainability of Petition;