Section 26 of the Hindu Marriage Act, 1955, deals with the custody, maintenance, and education of children in cases of matrimonial disputes such as divorce, judicial separation, and annulment of marriage. The primary objective of this section is to ensure that the welfare of minor children is taken care of despite the breakdown of their parents’ marriage.
This provision empowers the court to pass orders for the custody, maintenance, and education of minor children, keeping in mind their best interests. The court can issue such orders during the pendency of the case or even after the final decree has been granted.
What Section 25 of Hindu Marriage Act says?
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 and education of minor children, consistently with their wishes, wherever 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 orders 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.
Key Features of Section 26
Applicability of the Section
Section 26 applies to any proceeding under the Hindu Marriage Act, 1955, including:
- Divorce (Section 13)
- Judicial Separation (Section 10)
- Annulment of Marriage (Section 11 & 12)
- The focus is on minor children, meaning children below 18 years of age.
Authority of the Court
The court can pass orders related to:
- Custody – Deciding which parent or guardian will take care of the child.
- Maintenance – Ensuring financial support for the child’s well-being.
- Education – Making provisions for the child’s schooling and higher education.
- Such orders can be passed during the pending case or even after the decree.
Consideration of the Child’s Wishes
If the child is mature enough, the court may consider the child’s preference before making a decision. This ensures that the child’s emotional and psychological well-being is also taken into account.
Modification of Orders
The court can: Revoke (Cancel), Suspend (Temporarily Stop), Vary (Modify) orders as per the changing circumstances and welfare of the child.
For example, if a parent receiving custody is later found unfit, the court can modify the order.
Time-bound Disposal of Applications
The section states that any application regarding maintenance and education of minor children should be resolved within 60 days from the date of service of notice to the other party. This ensures quick relief to the child and prevents unnecessary delays.
Objectives of Section 26
The main objectives of Section 26 are:
- Welfare of Minor Children
- Ensuring that children are not negatively affected by their parents’ separation.
- Protecting their emotional, financial, and educational interests.
- Avoiding Unnecessary Hardship
- If a marriage breaks down, children should not suffer due to lack of financial support or care.
- Flexibility in Custody and Maintenance Orders
- The law allows the court to modify orders if circumstances change.
- For example, if a parent loses their job, maintenance orders can be revised.
- Time-bound Relief
- The 60-day disposal rule ensures fast justice so that children do not suffer due to legal delays.
Interpretation by Courts (Important Case Laws)
(a) Custody of the Child
- Gaurav Nagpal v. Sumedha Nagpal (2009)
- The Supreme Court held that the welfare of the child is the paramount consideration in custody disputes.
- The decision should not be based solely on legal rights of parents but on what is best for the child.
- Rosy Jacob v. Jacob A. Chakramakkal (1973)
- The Supreme Court ruled that custody orders are not final and can be modified as per changing needs.
- Ravi Kumar v. Julmi Devi (2010)
- The court clarified that both parents are responsible for child support, and financial maintenance must be fair.
(b) Maintenance and Education
- Sampath Kumar v. Anju Devi (2015)
- The High Court ruled that a father cannot escape financial responsibility for the child’s education, even if he remarries.
- Anil Kumar v. Maya Devi (2016)
- The court emphasized that the child’s standard of living should not be reduced after the parents’ separation.
Comparison with Other Laws
| Law | Key Provisions |
|---|---|
| Section 125 CrPC | Maintenance for wives, children, and parents (applies to all religions). |
| Guardian and Wards Act, 1890 | General law for child custody across all communities. |
| Hindu Minority and Guardianship Act, 1956 | Defines guardianship rights of parents under Hindu law. |
Difference from CrPC Section 125:
- Section 125 CrPC applies to all religions and covers illegitimate children, whereas Section 26 of HMA applies only to Hindus and to legitimate children from Hindu marriages.
Role of the Court in Deciding Custody
The court considers the following factors while deciding child custody under Section 26:
- Best Interest of the Child
- The child’s well-being, happiness, and emotional stability are most important.
- Age and Gender of the Child
- A young child is often given to the mother unless there are exceptional circumstances.
- Financial Stability of the Parents
- The parent who can provide better financial support may be given custody.
- Wishes of the Child
- If the child is old enough (above 9–10 years), the court may consider their choice.
- Character and Conduct of Parents
- If a parent has a criminal background or an unstable lifestyle, custody may be denied.
Conclusion
Section 26 of the Hindu Marriage Act, 1955, is a crucial provision that safeguards the rights of minor children affected by their parents’ separation. It empowers courts to decide on custody, maintenance, and education based on the child’s best interest. The time-bound disposal rule ensures that children receive quick relief, and the modification power allows courts to adapt to changing circumstances.
In all cases, the focus remains on the welfare and future of the child, ensuring that legal disputes between parents do not harm their upbringing.
