Divorce can be used to end unhappy marriages, but it becomes complicated when children are involved. However, in various circumstances, divorce becomes an inevitable option. When a couple is separated and they have children the divorce can have adverse effects on the children. The divorce case, custody case, and other cases claiming maintenance may have ill effects on the upbringing of the children. After the divorce, the parents have to take care of the financial and emotional needs of the children. If the custody of the child belongs to the mother she can claim maintenance from the father for the upbringing of the child.
In India, parents must support their children and pay all of their expenditures until they reach majority or do not have a sufficient income. If both the parents are earning they can contribute in an agreed ratio to bear all the finances of the child. A wife can claim maintenance from the father if she is not earning and not able to sustain her child and give them a standard of living that they were enjoying before the divorce.
Laws relating to Child Maintenance
The provisions for the maintenance of the child are laid down in Section 125 of the Criminal Procedure Code under which a man is bound to maintain his wife, parents, and his children if any of them are not able to maintain them. Under this provision, it is the liability of the father to maintain his legitimate or illegitimate minor child, whether married or not if they do not have sufficient means to maintain themselves. If any child is facing any kind of physical or mental disability due to which they are not able to maintain themselves, the father of that child whether a legitimate or illegitimate child is bound to maintain that child even if he has attained the age of majority.
The other provision under which the court can pass an order regarding custody, maintenance, and education of a child is laid down under Section 26 of the Hindu Marriage Act. Under this provision, both the parents are liable to maintain their child and if a mother has sufficient income then she is also under an obligation to maintain her child. During the pendency of proceedings, any application for the maintenance and education of minor children must be considered within sixty days of the date of delivery of notice on the respondent.
The third provision under which a person whether a male or female has to maintain his/her legitimate or illegitimate child under Section 20 of the Hindu Adoption and Maintenance Act. The court while determining the amount of maintenance takes into consideration several points:
- Income and the total value of the property that belongs to the claimant
- Position and status of both the parties and children
- Whether the claimant is living separately or with any of the parents and if he is living separately he should have an appropriate reason for the same.
- The total amount of maintenance claimed and the health conditions of the child
- The age, education, health issues of the mother, father, and the child.
If a person denies paying the expenses for the maintenance of the child ordered by the court, it can:
- Seize the property of that person
- Imprison him
- Cancel his business license
- Revoke his tax refund
- Cancel his driving license
Maintenance under Muslim Law
Under Muslim law, men are considered superior and it is their primary responsibility to maintain their children. Under the Muslim personal law, the father must maintain his son till the time he attains majority and has to maintain his daughter until she is married. Father is also bound to maintain his widowed or divorced daughter. A father is bound to maintain his illegitimate child if the couple has an agreement for the same. Father has no liability to pay the expenses of the child if he/she refuses to live with him without a reason. A father is under an obligation to maintain his major child if he is suffering from any kind of physical or mental disability.
Under Muslim law, if the father is not in a position to maintain his child and the mother is financially stable enough to bear the expenses of the child then she is bound to maintain that child. However, she can recover the amount of maintenance from the father when he is in a condition to pay it. Mother is also under an obligation to maintain an illegitimate child if the father has denied maintaining the child.
In Bakulabai v. Gangaram [i], a Hindu man had a second marriage and the couple lived together for several years and the wife gave birth to a child. Although the marriage was a void marriage therefore void under Section 11 of the Hindu Marriage Act the child born was a legitimate child under Section 16 of the same act. The wife filed a suit for the maintenance of the child when the couple separated, the court held that since the child was legitimate, the wife is entitled to maintenance for the child.
In Jagdish Jugtawat v. Manju Lata [ii], a couple separated and at the time of divorce they were having two children, one of them was a major girl. The girl filed a petition claiming maintenance from her parents. The court held that Section 125 of the Criminal Procedure Code does not fix a liability to provide maintenance for children above the age of eighteen years. However, Section 125 of CrPC when read with Section 20 of Hindu Adoption and Maintenance Act, a major unmarried girl is entitled to maintenance from her parents. Therefore, in this case, the petitioner is entitled to maintenance.
In Padmja Sharma v. Ratan Lal Sharma [iii], both the husband and wife were earning. When the couple was separated the petition was filed for providing maintenance to the children. The court held that when both the husband and wife were earning they are required to contribute in an agreed ratio for maintaining their children under Section 20 of the Hindu Adoption and Maintenance Act. Hence, maintaining the children is not an exclusive right of the father if both the parents are earning.
In Noor Saba Khatoon v. Mohd. Quasim [iv], the court held that maintenance right to children under Section 125 of the Criminal Procedure Code is available to all irrespective of religion. Muslim mothers can claim maintenance for their children for two years from their date of birth and it is distinct and independent of the right to maintenance under the Criminal Procedure Code.
Mother and father both have equal rights over the child as they both contribute to the child, therefore no one must suffer in the case of separation or divorce. Similarly, a child should not face any kind of problems if the couple is going through a divorce and his needs should not suffer. A couple can file for joint custody so that both of them can stay with the child peacefully and they should contribute to the financial and economic support of the child.
[i] Bakulabai v. Gangaram, (1988) 1 SCC 537
[ii] Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422
[iii] Padmja Sharma v. Ratan Lal Sharma, (2000) 4 SCC 266
[iv] Noor Saba Khatoon v. Mohd. Quasim, (1997) 6 SCC 233