Custody Of Children under The Hindu Marriage Act

Introduction :

After divorce when the relation of parties comes to an end, the most important and sensitive problem arises to custody, maintainance and education of children. It is very vital matter affecting the children and parents emotionally, socially and financially. Under all matrimonial statutes in India, the provision for these matters are made and Courts are empowered to make reasonable provisions for custody, maintainence and education of the children.

Custody of Children U/S 26

In any proceeding under this Act, the Court may from time to time, pass such interim orders and made such provisions in the decree as it may be just and proper with respect to the custody, maintainance and education of minor children, consistently with a wishes, wherever possible. The Court may, after the decree, upon application by petitioner for the purpose, make from time to time all such orders and provisions with respect to the custody , maintainance and education of such children might have been made by such decree or interim orders in case the proceeding for obtaining certificate were still pending and the Court may also from time to time revoke, suspend or vary any such orders and provisions previous made.

In matters relating to custody, education and maintainance of children, the Court is invested with very wider discretion and broad powers. The paramount interest and the welfare of children is considered while passing the order under this section. The justness and properness of the order is to be looked at from the interest of the children, as it is their interest which should be uppermost in the mind of the Court. The Court has power to pass any kind of order in respect of children by placing them into the custody of either parents or of a third person or of an institution. It may give custody to one parent and care and control to other. It may pass any interim or permanent orders and may vary them, change or rescind them at any time.

When parents separate from each other, the custody can be given only to one parent. In such circumstances, the Court, while making an order of custody may make it clear that the parent who does not have the custody of the child, will have access to it. But the right must be exercised in a reasonable manner and in conformity with the direction of the Court contained in the order.

Case Laws

  1. In Saraswati V. Shripad, AIR, 1941, Bom.103, it was held that though a most of the Indian Statutes, no specific provision is made for access, but access is part of custody, and if the Court has power to pass order for custody, it has also the power to pass order for access.
  2. Padmaja Sharma V. Ratan Lal Sharma, AIR 2000 SC 1398.

                   In this case Supreme Court held that, husband and wife are earning members. The wife is equally obliged to contribute towards the maintainance of her children in proportion to her salary.

Conclusion It is a well established proposition of law that in all matters relating to children, including access and custody, the paramount consideration is the welfare of children. If the child is of the age of discretion, his wishes should also be consulted through in the welfare of the child his wishes may be discharge. Though the ordinary rule is that a child below the age of five should be committed to the custody of the mother, it does not mean that a child above of that age would automatically given over to the custody of the father. Thus in the welfare of the child above that age may be committed to the mother, though children of tender years would not be ordinarily given in the custody of the father. Natural mother is preferable over the relations of the father.

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