Custody, Maintenance and Education of Children

Section 38 of the Special Marriage Act

The same power, in almost the same words, for a proceeding under Chapter V or Chapter VI of that Act: interim orders and provisions in the decree with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and the power after the decree to make, revoke, suspend or vary such orders; with the same sixty-day proviso for an application about maintenance and education during the proceeding.

The parallel matters for MU's Uniform Civil Code topic. Where the marriage was under the Special Marriage Act, the couple may be of any religion or none, and the court's power over their children is identical to the power it has over the children of a Hindu marriage. On this subject a uniform civil code, in substance, already exists.

The guardianship jurisdiction

Where there is no matrimonial proceeding, custody is decided as an incident of guardianship.

Who the guardian is comes from section 6 of the Hindu Minority and Guardianship Act for a Hindu minor, read with the reading of the word "after" in Githa Hariharan, both in [The Hindu Minority and Guardianship Act: Natural and Testamentary Guardians]. For a minor of any other community it comes from that community's personal law.

How a court appoints or declares one, for a minor of any religion, is the Guardians and Wards Act 1890, in [The Guardians and Wards Act: Appointment of a Guardian].

The test on which it does so is section 17 of that Act: what, consistently with the law to which the minor is subject, appears for the welfare of the minor, having regard to his age, sex and religion, the character and capacity of the proposed guardian and his nearness of kin, the wishes of a deceased parent, and any existing or previous relations with the minor or his property, with the minor's own intelligent preference admissible.

The stronger statement, for a Hindu minor, is section 13 of the 1956 Act: welfare is the paramount consideration, and no person is entitled to guardianship if the court is of opinion that it will not serve the minor's welfare.

And the custody remedy itself is section 25 of the 1890 Act: where a ward leaves or is removed from his guardian's custody, the court may order his return if it is of opinion that it will be for the welfare of the ward to return, and may enforce the order. Residence elsewhere against the guardian's will does not by itself end the guardianship.

Two limits of the 1890 Act are worth stating together with the power. Section 19(b), as substituted in 2010, forbids the appointment of a guardian of the person of a minor whose father or mother is living and is not, in the opinion of the court, unfit. And section 12(3)(a) forbids the court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of being her husband, unless she is already in his custody with her parents' consent.

Maintenance: the four routes

A child's maintenance can be claimed in four different ways, and an answer that names all four with their differences is a complete one.

Section 20 of the Hindu Adoptions and Maintenance Act

A Hindu is bound during his or her lifetime to maintain his or her legitimate or illegitimate children, and a child may claim so long as the child is a minor, with an unmarried daughter continuing under sub-section (3) so long as she cannot maintain herself. It is set out in [Maintenance of Wife, Children and Aged Parents], and the amount is fixed on the five factors in section 23(2).

Section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023

The secular summary remedy. If any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself, his legitimate or illegitimate child, whether married or not, unable to maintain itself, his legitimate or illegitimate child who has attained majority and is unable to maintain itself by reason of any physical or mental abnormality or injury, not being a married daughter, or his father or mother unable to maintain himself or herself, a Magistrate of the first class may, on proof of the neglect or refusal, order a monthly allowance at such rate as he thinks fit.

The features that matter for a child:

A minor child of either sex, legitimate or illegitimate, married or not, is covered by clause (b).

A major child is covered only if disabled, by clause (c), and a married daughter is expressly outside it.

A female child's father may be ordered to pay until she attains majority, by the first proviso, if the Magistrate is satisfied that her husband, if she is married, has not sufficient means.

Interim maintenance and the expenses of the proceeding may be ordered under the second proviso, and such an application shall as far as possible be disposed of within sixty days of service of notice.

Enforcement is by warrant for levying the amount as a fine, and imprisonment up to one month for each breach or until payment, with an application to levy required within one year of the amount becoming due.

Where the proceeding may be taken, by section 145, is any district where the person is, where he or his wife resides, where he last resided with his wife or with the mother of the illegitimate child, or where his father or mother resides.

Two points of currency. This remedy is now in the Bharatiya Nagarik Suraksha Sanhita 2023, which replaced the Code of Criminal Procedure 1973 on 1 July 2024; older books and older papers discuss it under the previous numbering. And the Senior Citizens Act 2007 gives a parent an election, by its section 12: a parent entitled under both may claim under either but not under both, which is in [The Maintenance and Welfare of Parents and Senior Citizens Act: the Claim].

Section 21 of the Protection of Women from Domestic Violence Act

Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of the hearing of an application for a protection order or any other relief under the Act, grant temporary custody of any child or children to the aggrieved person or to the person applying on her behalf, and specify, if necessary, the arrangements for visit of the children by the respondent. The proviso: if the Magistrate is of opinion that a visit may be harmful to the interests of the child, he shall refuse to allow it.

Section 21 is the fastest custody order in Indian family law, and it is worth naming for that reason. It is temporary, it is made at any stage of the hearing, and it does not require a guardianship petition or a matrimonial proceeding at all. The Act's other orders, including monetary relief for the children, are in [The Five Orders the Magistrate Can Pass].

Education

Education appears in fewer places, and they are quickly listed.

Section 26 of the Hindu Marriage Act and section 38 of the Special Marriage Act name it expressly, alongside custody and maintenance, and the sixty-day proviso in each applies to maintenance and education together.

Section 24 of the Guardians and Wards Act makes a guardian of the person responsible for the ward's support, health and education.

Section 34 of that Act requires a court-appointed guardian of property to apply such portion of the income of the ward's property as the court directs for the maintenance, education and advancement of the ward.

Section 50(1)(i) empowers the High Court to make rules as to the education of wards whose guardians are not Collectors.

And "maintenance" itself includes education for an unmarried daughter. Section 3(b) of the Hindu Adoptions and Maintenance Act defines maintenance to include, in the case of an unmarried daughter, the reasonable expenses of and incident to her marriage; the general limb covers food, clothing, residence, education and medical attendance and treatment. That definition is in [The Hindu Adoptions and Maintenance Act: Scope and Definitions].

Which forum to choose

A practical arrangement, and a good way to end an essay.

If a matrimonial petition is pending, use section 26 of the Hindu Marriage Act or section 38 of the Special Marriage Act. It is the cheapest route because the court is already seised, and it covers all three subjects at once.

If there is no such petition, and the question is who shall have the child, use the Guardians and Wards Act 1890, in the district court where the child ordinarily resides.

If the question is money and speed matters, use section 144 of the Bharatiya Nagarik Suraksha Sanhita: a Magistrate, a summary inquiry, interim maintenance in sixty days as far as possible, and imprisonment for default.

If the money is to reflect the family's standard of living, use section 20 of the Hindu Adoptions and Maintenance Act, where section 23(2) makes the position and status of the parties the first factor.

And if there is violence in the house, use the Protection of Women from Domestic Violence Act, where temporary custody may be given at any stage of the hearing and a harmful visit refused outright.

These are cumulative in form but not in substance. A court fixing maintenance under one statute takes account of what has been ordered under another, and the Senior Citizens Act, uniquely, forces an election in terms.

The one principle

Every provision in this chapter, whichever statute it comes from, is worked by the same test.

Section 17(1) of the 1890 Act: what appears in the circumstances to be for the welfare of the minor.

Section 13(1) of the 1956 Act: the welfare of the minor shall be the paramount consideration.

Section 25(1) of the 1890 Act: return of the ward is ordered only if it will be for the welfare of the ward.

Section 26 of the Hindu Marriage Act: such provision as the court deems just and proper, consistently with the children's wishes wherever possible.

The proviso to section 21 of the Domestic Violence Act: a visit that may be harmful to the interests of the child shall be refused.

That is the sentence to write in an examination. The Indian law of custody is not a law of parental rights. The parent's position in section 6 of the Hindu Minority and Guardianship Act, or in section 19(b) of the Guardians and Wards Act, is a starting point; the welfare of the child is the deciding point, and it displaces the statutory preference whenever the two pull apart. That is the whole reason Githa Hariharan could read a word of the section against its literal sense without striking the section down.

A worked example

Nita and Prashant married under the Hindu Marriage Act. They have a son of three and a daughter of nine. Prashant drinks, has no work, and beats all three. Nita leaves with the children and files a petition for judicial separation. She has no income; her father is dead.

Custody while the petition is pending. Section 26 of the Hindu Marriage Act lets the court pass interim orders about the custody, maintenance and education of minor children in any proceeding under that Act, consistently with their wishes wherever possible. Her petition is a proceeding under the Act, so section 26 is available at once.

Who gets the children? The three-year-old comes within the proviso to section 6(a) of the Hindu Minority and Guardianship Act, custody of a child under five ordinarily with the mother. For the nine-year-old the answer comes from section 13 of that Act, the paramountcy of welfare, and from the reading of "after" in Githa Hariharan: a father who beats the child and contributes nothing is absent from the office in the sense the case describes.

Maintenance for the children. Three routes. Section 26 in the pending petition. Section 20 of the Hindu Adoptions and Maintenance Act, by suit, where the amount is fixed on the position and status of the parties under section 23(2). And section 144 of the Bharatiya Nagarik Suraksha Sanhita, before a Magistrate of the first class, which is the fastest of the three and carries imprisonment up to one month for each breach.

And for Nita herself? Section 18 of the Hindu Adoptions and Maintenance Act, on the ground of cruelty under sub-section (2)(b); section 24 of the Hindu Marriage Act for maintenance pendente lite; and section 144 of the Sanhita.

Is there anything quicker? Yes. Section 21 of the Protection of Women from Domestic Violence Act 2005 lets the Magistrate grant temporary custody at any stage of the hearing of an application for a protection order, and refuse a visit that may be harmful to the children.

If there had been no matrimonial petition at all. Then section 26 would have nothing to attach to and she would apply under the Guardians and Wards Act 1890, in the District Court where the children ordinarily reside, on the welfare test in section 17.

Education. Named in section 26 itself, in section 24 of the 1890 Act as part of a guardian's duty, and in section 3(b) of the Hindu Adoptions and Maintenance Act as part of "maintenance".

What it does NOT mean

Section 26 is not free-standing. It works only "in any proceeding under this Act". With no matrimonial petition on foot there is nothing for it to attach to, and the route is the Guardians and Wards Act.

The proviso to section 6(a) is not a rule of guardianship. It gives custody of a child under five ordinarily to the mother, and "ordinarily" yields to welfare.

Section 144 of the Sanhita is not confined to a wife. It reaches a child, legitimate or illegitimate, married or not, a disabled major child other than a married daughter, and a father or mother.

A major child is not covered simply because he is studying. Clause (c) requires inability to maintain himself by reason of physical or mental abnormality or injury.

The remedies are not simply cumulative. A court fixing an amount under one statute takes account of what has been ordered under another, and the Senior Citizens Act forces an election in terms.

Custody orders are not final. Section 26 lets the court revoke, suspend or vary them from time to time, because a child's circumstances change.

The statutory preference is not the answer. Section 6 of the 1956 Act and section 19(b) of the 1890 Act are starting points; welfare decides, which is why a word could be read down in Githa Hariharan without the section falling.

Quick revision

• HMA s.26 and SMA s.38: in a pending proceeding the court may make interim orders, provisions in the decree, and later variations about custody, maintenance and education of minor children, consistently with their wishes wherever possible; an interim application about maintenance and education is to be disposed of within sixty days as far as possible.
• Guardianship: HMGA s.6 says who the guardian is, read with Githa Hariharan; GWA s.17 is the welfare test with its five matters; HMGA s.13 makes welfare paramount and disqualifies anyone whose guardianship would not serve it; GWA s.25 orders the ward's return if that serves his welfare; GWA s.19(b), since 2010, protects a living father or mother who is not unfit.
• Maintenance, four routes: HMA s.26 / SMA s.38 in the pending petition; HAMA s.20 by suit, quantified on position and status under s.23(2); BNSS s.144 before a first class Magistrate, covering a child of either sex, legitimate or illegitimate, married or not, a disabled major child, and a parent, with interim maintenance in sixty days as far as possible and one month's imprisonment for each breach; and PWDVA monetary relief.
• PWDVA s.21: temporary custody at any stage of the hearing, with visits specified and a harmful visit refused.
• Education appears in HMA s.26, SMA s.38, GWA s.24 and s.34, GWA s.50(1)(i), and in the definition of maintenance in HAMA s.3(b).
• The single principle: the welfare of the child, not the right of the parent.

Test yourself

1. Which provision lets a court deal with custody while a divorce petition is pending, and what does it cover? Section 26 of the Hindu Marriage Act, and section 38 of the Special Marriage Act for a marriage under that Act. The court may pass interim orders and make provisions in the decree with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, may make such orders after the decree on a petition, and may revoke, suspend or vary them.

2. Where does a parent go if there is no matrimonial proceeding? To the District Court under the Guardians and Wards Act 1890, in the place where the minor ordinarily resides, where the test is section 17: the welfare of the minor, having regard to age, sex and religion, the proposed guardian's character, capacity and nearness of kin, a deceased parent's wishes, and previous relations, with the child's intelligent preference admissible.

3. Name the four routes by which a child's maintenance may be claimed. Section 26 of the Hindu Marriage Act or section 38 of the Special Marriage Act in a pending proceeding; section 20 of the Hindu Adoptions and Maintenance Act by suit; section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023 before a Magistrate of the first class; and monetary relief under the Protection of Women from Domestic Violence Act 2005.

4. What is the single principle running through all of them? The welfare of the child. Section 17(1) and section 25(1) of the 1890 Act, section 13(1) of the 1956 Act, section 26 of the Hindu Marriage Act and the proviso to section 21 of the Domestic Violence Act all turn on it, and it displaces the statutory preference for a particular parent whenever the two pull apart.