Maintenance Laws For Children in India

Understanding the Laws of Child Maintenance in India

In India, child maintenance laws exist to ensure that children receive financial support from their parents, especially in cases where parents have separated or divorced. The laws vary depending on the religion of the parents and the specific circumstances of the case. In this article, we will provide an overview of the maintenance laws for children in India.

The term & quot maintenance& quot denotes the financial support provided by one party to cover the cost-of-living expenses, which includes provisions for food, clothing, residence, education, and medical attendance and treatment. According to Section 3(b) of the Hindu Adoption and Maintenance Act, 1956 in the case of an unmarried daughter, maintenance shall also cover reasonable expenses incurred during and pertaining to her marriage. The objective of these laws is to ensure that children receive proper care, education, and upbringing, and that both parents take equal responsibility for their child's welfare.
 

Children Maintenance Under Hindu Law

The provisions relating to maintenance for children under the various statues of Hindu Law are as follows -

Hindu Marriage Act, 1955

Section 26 of the Hindu Marriage Act, 1955 provides for orders related to custody, maintenance, and education of minor children during the proceedings under the Act. A minor child is one who has not yet attained 18 years of age. These proceedings may be for a decree of nullity, divorce, judicial separation, or restitution of conjugal rights between their parents.

Under this Act, both the parents or either father or mother, are liable to maintain the child as per court orders. The court considers the wishes of the child while making such orders and allowances. These orders are subject to change in circumstances of the various parties involved and may be altered from time to time.

Any application for maintenance and education of minor children during the pendency of the proceedings has to be decided within sixty days from the date of service of notice on the opposite party.
 

Hindu Adoption and Maintenance Act, 1956

According to Section 20 of the Hindu Adoption and Maintenance Act, 1956, a Hindu male or female is obligated to maintain his or her legitimate/illegitimate minor children and unmarried daughters even after they have attained majority. The Act clearly spells out that the obligation to maintain unmarried daughters who are unable to maintain themselves extends insofar as they cannot do so out of their own earnings or other property.

It was held in the case of Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266 that both, a Hindu divorcee father and a Hindu divorcee earning mother are obliged to contribute for maintenance of their children under the Hindu Adoption and Maintenance Act, 1956. Father is not exclusively responsible to maintain children regardless of mother being affluent.

Additionally, in the case of Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7, it was held that an unmarried daughter unable to maintain herself is entitled to claim maintenance under the Hindu Adoption and Maintenance Act, 1956. The father is obliged to maintain her unmarried daughters even if they are living separately with their mother.

While determining the amount of maintenance, the court considers various factors such as position and status of the parties, reasonable wants of the claimants, if the claimant is living separately, whether the claimant is justified in doing so, claimant's income and value of property held by him or her, etc. Such amount may be modified if there is a change in circumstances warranting so.

However, if a child ceases to be a Hindu (changes his religion), he/she cannot claim maintenance under this Act.

The Act also specifies that the heirs of a deceased Hindu are bound to maintain his or her dependents out of the estate inherited by them. Whereas, dependents include deceased person's minor son, unmarried daughter, widowed daughter, minor illegitimate son, minor illegitimate daughter.
 

Children Maintenance Under Muslim Law

Under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act of 1986, a Muslim woman who has divorced or who has been divorced by her husband has the right to receive reasonable and fair provision and maintenance for any children she gave birth to, whether before or after the divorce, for a period of two years from the respective dates of their birth. Upon non-payment of the same, such divorced woman can tender in an application to the Area Magistrate for an order of maintenance. He, after ascertaining the fact that her husband despite having sufficient means, has neglected or refused to pay her the maintenance for the children, may within one month of such application order her husband to pay such reasonable and fair provision and maintenance to her as he may determine while placing due regard to her needs, the standard of life enjoyed by her during her marriage and the means of her former husband. It is the responsibility of the former husband to provide this maintenance, and failure to comply with the order issued by the Magistrate, without a valid reason, can result in imprisonment of the husband for up to one year.

It is important to note that maintenance for a child beyond the initial two years from his/her birth can be claimed by the mother from the father under Section 125 of the Code of Criminal Procedure, 1973 (CrPC). Right under Muslim Women (Protection of Rights on Divorce) Act, 1986 is that of the mother to claim maintenance for children for two years from their date of birth and is distinct and independent of the right to maintenance under beneficial provision of Section 125 CrPC to minor children unable to maintain themselves. This position was clarified in the case of Noor Saba Khatoon v. Mohd. Quasim, (1997) 6 SCC 233.
 

Children Maintenance Under Christian Law

For Christians in India the law regulating maintenance for children is the Indian Divorce Act, 1869.

Under the Indian Divorce Act, 1869, & quot minor children& quot means unmarried children who have not completed the age of eighteen years, except for sons of Native fathers who are under sixteen years and daughters of Native fathers who are under thirteen years.

As per Section 41 to 44 of the Act, in any suit for obtaining a judicial separation or divorce or nullity, the Court may make interim orders and provide for the custody, maintenance, and education of the minor children whose parents' marriage is the subject of the suit. The Court may also direct proceedings to be taken for placing such children under its protection. The application with respect to the maintenance and education of the minor children should be disposed of within sixty days from the date of service of notice on the opposite party.

After a decree of judicial separation or divorce or nullity the Court may make all such orders and provisions as may be required from time to time, for the custody, maintenance, and education of the minor children upon application by petition as could have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.

The amount of maintenance is determined based on the income and expenses of both parents, as well as the child's needs.
 

Children Maintenance Under Parsi Law

For Parsis in India the law regulating maintenance for children is the Parsi Marriage and Divorce Act, 1936.

Under Section 49 of the Parsi Marriage and Divorce Act, 1936, in any suit related to divorce or separation, the Court can pass interim orders and make provisions in the final decree for the custody, maintenance, and education of children below the age of eighteen years whose parents' marriage is the subject of the suit. The Court can also make, revoke, suspend, or vary such orders and provisions upon application by petition after the final decree. However, the application with respect to the maintenance and education of the children during the suit should be disposed of within sixty days from the date of service of notice on the respondent.

Additionally, as per Section 50 of the Act, if the Court pronounces a decree of divorce or judicial separation for the wife's adultery and she is entitled to any property, the Court may order a reasonable settlement of up to one-half of the property for the benefit of the children of the marriage or any of them.
 

Children Maintenance Under Code Of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973 (CrPC) provides for maintenance of children in cases where parents are not able to provide for their children. Under Section 125 CrPC, a magistrate may order the father or mother of a minor child to pay maintenance to the child, either on a monthly or lump-sum basis.

The benefit under Section 125 CrPC is available to all children irrespective of religion.

According to Section 125 CrPC, if a person who despite having sufficient means neglects or refuses to provide maintenance, the Magistrate may order him/ her to make a monthly allowance for maintenance. The order under this section may be sought by or on behalf of the following people:

1. Their legitimate or illegitimate minor child who is unable to provide for itself

2. Their legitimate or illegitimate major child (except for a married daughter) who is unable to provide for itself due to a physical or mental abnormality or injury

3. Their married daughter till the time she reaches majority, if her husband is unable to maintain her

4. Their father or mother who are unable to maintain themselves.

This section also provides for maintenance pendente lite i.e., during the pendency of such proceedings.

The amount of maintenance is determined based on the needs of the child and the income of the parent.

In the case of Amarendra Kumar Paul v. Maya Paul, (2009) 8 SCC 359 it was held that a case for grant of maintenance under Section 125 CrPC arises only when a person despite having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor children who are unable to maintain themselves.

If a person fails to comply with the order of the Magistrate, they may be sent to prison. The order of maintenance may also be changed by the Magistrate if there is proof of a change in circumstances. Additionally, the Magistrate must decide on any application for interim maintenance during the legal proceedings within sixty days of receiving notice of the application.

It is worthwhile to note that in the case of Bakulabai v. Gangaram, (1988) 1 SCC 537, it was held that a child born out of a void marriage between a woman and a man who already has a wife is to be treated as a legitimate child who is entitled to maintenance under Section 125 CrPC.
 

Child Maintenance And Custody

Child custody refers to the legal right of a parent to make decisions on behalf of their child, such as education and healthcare. Child maintenance, on the other hand, refers to the financial support provided by a parent to their child. In India, custody and maintenance are treated separately, and a parent can be required to pay maintenance even if they do not have custody of their child.

Hon'ble Supreme Court has in a recent judgement bemoaned the fact that in a custody battle ensuing spousal separation it is the child who is always the loser, no matter which parent wins. What assumes utmost priority in a child custody battle is the welfare of the child and it is up to the Court to see which of the parent can ensure the welfare of the child in better manner.

Interestingly, in an event of divorce neither of the parents ceases to be the natural guardian of a child, meaning they have an equal responsibility to maintain their child. The dissolution of marriage through divorce only ends the legal relationship between the spouses and does not impact their responsibilities towards their children.

Even if one parent is granted physical custody of the child, the other parent still has the right to maintain contact and visitation. Indian courts are very particular about ensuring that the child receives love and care from both parents. Therefore, the court sets the terms and conditions of visitation rights for the non-custodial parent.

Primarily, a court of competent jurisdiction in India orders the custody arrangements of a child in the following three forms: -
 

Physical Custody

When a parent is awarded physical custody, it means that the child will primarily live with that parent, but will still have visitation and periodic interaction with the other parent. This type of custody award is intended to ensure that the child is safe and happy in their living environment, while still being able to maintain a relationship with the other parent during their years of development.
 

Joint Custody

Joint custody of a child does not imply that the parents will reside together for the child's benefit, even though the Indian courts consider it to be the best option for a minor's welfare. It only means that both parents will share the responsibility of taking care of the child, with each parent taking turns to have physical custody of the child for a certain period. The rotation period may vary from a few days to a week or even a month. This arrangement benefits the child as they can maintain a strong relationship with both parents, and the parents can also remain an active part of their child's life during their formative years.
 

Legal Custody

Legal custody and physical custody of a child have distinct differences, with the key dissimilarity being that legal custody does not require the child to be physically present with the parent having custody. Legal custody is primarily concerned with decision-making authority for the child, which includes determining where the child will attend school and which doctor will provide medical treatment. Usually, both parents are awarded legal custody, but in cases where the divorce is contentious and parents are unable to agree, the court may award legal custody to only one parent.

Irrespective of the custody arrangement, Indian courts ensure that the child receives love and affection from both the parents.
 

Maintenance To Child By Non-Custodial Parent

In India, the law recognizes the right of a child to be financially supported by both parents, even if they are divorced or separated. The non-custodial parent, i.e., the parent who does not have physical custody of the child, is obligated to pay maintenance for the child's upbringing, education, and other expenses. This obligation arises irrespective of the parent's gender and applies to both biological and adopted children.

The amount of maintenance payable is determined based on various factors such as the child's needs, the income and financial resources of the non-custodial parent, and the standard of living the child is accustomed to.

Failure to pay maintenance may result in legal consequences, including imprisonment. The primary goal of this provision is to ensure that the child's needs are met, and their upbringing and education are not hampered due to financial constraints.
 

How To Calculate Child Maintenance Payments

There is no set formula or calculator to estimate payments payable for child maintenance in India. It is usually arrived at after understanding both parents' income, expenses, and the child's needs. The law provides guidelines for calculating maintenance payments based on the income or the sufficiency of the means of the parent who is required to pay.

Child maintenance payments are typically calculated based on the income and expenses of both parents, as well as the child's needs. In cases where parents cannot agree on the amount of maintenance, a court may be required to intervene and make a determination based on the evidence presented.

As per Section 23(2) of the Hindu Adoption and Maintenance Act, 1956 the amount of maintenance payable should be arrived at keeping in mind the following principles ?

1. The position and status of the parties involved.

2. The reasonable needs and wants of the person who is claiming maintenance.

3. If the claimant is living separately, whether it is justified or not.

4. The value of the claimant's property and any income derived from it, or from their own earnings or any other source.

5. The number of people entitled to maintenance under this Act.
    

Enforcing Child Maintenance Orders In India

Once a child maintenance order has been made by the court, it is legally binding, and both parents are obligated to comply with it. However, in practice, enforcing child maintenance orders can be challenging, especially if the non-custodial parent fails to make payments.

In India, an order of maintenance for child can come from the Court of Magistrate exercising its power under the Code of Criminal Procedure, 1973 or a Civil Court exercising its power under the Code of Civil Procedure, 1908 in conjunction with various personal laws of the concerned parties as described in the preceding sections of this Article.
 

Under Criminal Law

One is entitled to copy of order of maintenance or interim maintenance and expenses of proceeding free of costs.

The maintenance allowance must be paid from the date of the order or the date of the application if so ordered by the Magistrate. As per Section 128 CrPC in order to get the order executed, one can file an application before the Magistrate at the place where the opposite party liable to make the payment may be.

As per Section 125 CrPC there are legal consequences for failing to comply with a maintenance order:

1. If the person fails to comply with the order without a valid reason, the magistrate may issue a warrant to levy the amount due.

2. The person may be sentenced to imprisonment for a term that could extend to one month or until payment if sooner made for each month's allowance that remains unpaid.

However, no warrant shall be issued for recovery of any amount due under this section unless an application is made to the court to levy such an amount within one year from the date on which it became due.
 

Under Civil Law

In India, the City Civil Courts have several tools at its disposal to enforce child maintenance orders, such as:

1. Attachment of property: The court can order the attachment of the parent's property, such as bank accounts, assets, and other sources of income, to recover the unpaid maintenance.

2. Imprisonment: In extreme cases, the court can order the civil imprisonment of the parent if they fail to comply with the maintenance order.

3. Garnishment of wages: The court can order the garnishment of the parent's wages to recover the unpaid maintenance as per the provisions of the Code of Civil Procedure, 1908.

Common Issues In Child Maintenance Cases

Child maintenance cases often involve disputes between parents over the amount of maintenance to be paid, as well as issues relating to custody and visitation rights. Common issues in child maintenance cases include:

1. Income determination: Determining the income of both parents can be a complicated process, especially if the non-custodial parent is self-employed or has an irregular income.

2. Custody and visitation: In cases where custody and visitation rights are in dispute, the court may require additional evidence to determine the amount of maintenance to be paid.

3. Non-payment of maintenance: Non-payment of maintenance by the non-custodial parent is a common issue in child maintenance cases, which can lead to legal action and enforcement proceedings.

How can a Lawyer Help in a Child Custody or Maintenance Proceeding?

Child maintenance laws in India aim to ensure that both parents contribute towards the upbringing and care of their children. Claiming and enforcing child maintenance payments can be complex, and disputes often arise. While the family lawyer will need to gather information from you regarding your case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced Family Lawyer can give you expert advice on how to handle a maintenance application owing to his years of experience in handling such cases. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert family lawyers.

It is important for parents to understand their legal obligations and the rights of their children, and to seek legal advice in cases wherever necessary. A family lawyer is an expert who can help you avoid significant mistakes that may cause financial harm or may lead to multiplicity of proceedings in the future. Thus, by hiring an attorney a person can make sure that he can avoid delay and realise maintenance payments as quickly as possible.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

GET LEGAL HELP

GET LEGAL HELP

Googling your legal issue online?

The internet is not a lawyer and neither are you.
Talk to a real lawyer about your legal issue.

TALK TO A LAWYER