JUDGMENT
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
3. 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).
4. 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
5. I shall first deal with the contention relating to maintainability of the petition under Section 26 of the Act, which runs as follows :
“Custody of children-In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance, deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, whenever possible and may after the decree, upon application by petition for the purpose, make from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim order in case the proceeding for obtaining such decree were still pending and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made.”
A look at the provisions contained in Section 26 of the Act, demonstrates that even if the main petition under Section 13 of the Act is disposed of, the jurisdiction of the Court to pass appropriate orders with respect to custody of minor children is not taken away. The words “and may after the decree” need no interpretation and denote that application for the custody of children may be filed even after the decree is passed in the proceedings under the Act. So I find no force in the argument of the learned Counsel and hold that application for custody of child was maintainable.
Welfare of Child
6. Now I proceed to deal with another argument of learned Counsel in respect of welfare of minor child Pooja. For this it will be proper to look into the nature of the evidence produced by the respective parties. The husband Laxmi Kant examined himself as A.D. I had stated that Kamlesh was residing in a hostel and was not looking after Pooja properly. She was having illicit relationship with one Damodar. Decree for divorce was passed in his favour on the ground that Kamlesh was leading adulterous life with Damodar. Kamlesh did not challenge the said decree. She left his house when Pooja was 9 months of age. Pooja was residing with her maternal grandfather and grand mother, whose financial position was very weak and they were not in a position to look after Pooja properly. Laxmi Kant further stated that he did not intend to marry second time. He could properly look after Pooja as he was running a shop. Smt. Kamlesh N. A. W. 1 stated that Laxmi Kant was unemployed and was not in a position to look after Pooja. She was turned out of the in-law’s house when Pooja was 9 months old. Pooja was studying in Third Standard in an English School at Sewar. She did not receive the summons of divorce proceedings. She did not fill the name of her husband in the Form of A.N.M. Training as he did not care for her whereabouts therefore she had treated him as dead. She did not want to get the decree of divorce cancelled. She was serving as nurse in P.H.C. Dispensary and was depositing Rs. 500- per month in Pooja’s name in the Post Office. Brij Dayal N. A.W. 2, is the father of Kamlesh. He stated that he and his wife were looking after Pooja. He further stated that his daughter Kamlesh was earning Rs. 1,800/- per month since October 1,1993. Pheli Ram NAW. 3 was the Sarpanch of Village Sewar. He stated that Pooja was looked after by her maternal grand father and maternal uncle; Pooja was also examined by the Court below. She gave her name as Smita. She stated that she did not see her father. She was very well looked after by her mother. She was studying in Class V and she did not want to go to her father.
7. Ex. 1 is the certified copy of the judgment dated July 5,1990 by which the ex-parte decree of divorce was granted in favour of husband Laxmi Kant. A perusal of this judgment shows that Damodar Lal was also impleading party with whom Kamlesh was leading adulterous life. Kamlesh did not challenge these findings therefore she had admitted to have illicit relations with Damodar.
8. In Pooran v. Smt. Angoori (supra) it was held that the right of the mother to claim the custody of the child is not absolute. It is a qualified right subject to her fitness, her character, conduct and position in life.
9. In Mohd. Faruq v. Smt. Manzar Bano (supra) this Court indicated that neglect of the education of the children alone cannot be a factor in giving the custody of the children to the father because the father, has already married another women and has children from her. But in the case on hand the father has not married even after the decree of divorce and has stated that he does not intend to re-marry.
English Decisions
10. The majority of Lords Guest Mac Dermott and Piarson appear to treat the child welfare as the sole consideration in J. v. C, 1970 AC 668, Lord Mac Dermott said of Section 1 of the English Act of 1925 that it must mean “more than that the child’s welfare is to be treated as the top item in the list of items relevant to the matter in question. I think there cannot a process whereby wishes of parents, risks, choices and other circumstances are taken into account and weighed the course to be followed will be that which is most in the interest of the child welfare.”
11. In re Megrath (Infants) (1893)1, Ch. 143 (148), Lindley L.J. said :
“The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the tires of affection be disregarded.”
12. In re Adoption Application 41/61 (1963) Ch. 315 (329), Danckwet L.J. had this to say :
“…I would respectfully point out that there can only be one first and paramount consideration, and other considerations must be subordinate. The mere desire of a parent to have his child must be subordinate to the consideration of the welfare of the child, and can be effective only if it coincides with the welfare of the child.”
Cases under Guardians and Wards Act
13. In Dr. Snehlata Mathur v. Mahendra Narain (supra) this Court (Hon’ble N.M. Kasliwal, J. as he then was) while interpreting the provisions contained in Section 10 of the Guardians and Wards Act, 1890, propounded that father is the natural guardian of minor after he attains the age of five years, unless the father is shown to be unfit and incapable of providing all facilities to minor, he cannot be denied guardianship of minor.
14. In Prakash Chandra Jain v. Smt. Chandrawati Jain (supra) the Division Bench of this Court (Hon’ble B.R. Arora and D.C. Dalela . JJ.) indicated that the Court is mainly concerned with the welfare of the child and not with the rights of parents. The decision for the custody of the child to a particular person, requires a judicial investigation in order to ascertain; (i) with whom the child will be happy, (ii)by whom the health and comforts of the child will be better looked after and to contribute its well Being; (iii) who can bring up the child and give education in a manner in which he deserves to be brought up; (iv) in whose company the child grow up in normal balanced manner to be the useful member of the society; (v) the age and sex of the child; and (vi) the character and capacity of the father or mother etc.
Conclusion
15. What, I have to deal with is the life of human being and it cannot be regulated by any formulae. Admittedly the minor girl Pooja is living in the company of her mother and maternal grand parents and did not know her father at all. But there are proved allegations against her mother Kamlesh of leading adulterous life with one Damodar. Smt. Kamiesh could not disprove this allegation that she is not a woman of easy virtue. In such circumstances, it does not appear reasonable to me that it will be in the welfare of Pooja that she should live in such a vicious atmosphere at this impressionable age in life. As already stated, the welfare means, the welfare in the widest sense. It includes material and moral well being. Mother’s wishes or her right cannot prevail over the welfare of the child. Though Pooja expressed desire before the Court below that she wanted to live with her mother but the desire of minor of eight years cannot weigh with the Court while considering the case of her custody. In the case of a child the power of exercising discretion develops near about the age of 16 years. In eight years of age a minor girl cannot exercise her discretion intelligently. She lives under the influence of persons with whom she is living. Pooja left the house of her father when she was nine months of age and it is but natural for her not to recognise her father. The arguments of learned Counsel for the appellant that it would be too harsh to remove minor Pooja from the custody of her mother and to place her in the company of strangers, do not appeal to the conscious of the Court and the appellant mother herself is responsible for creating such situation. Therefore looking to the entire facts and circumstances of the case I agree with the view taken by the learned District Judge and find no force in this appeal.
16. In the result, the appeal fails and is hereby dismissed with no order as to costs. However, it is open to the appellant, if she is so advised, and if the circumstances change, to move the Court for modification, alteration or rescission of the order relating to child custody.