Indian family law | Hindu Marriage Act, 1955
Section 26 of the Hindu Marriage Act, 1955: Custody of Children
Section 26 empowers a court dealing with proceedings under the Hindu Marriage Act, 1955 to make orders concerning the custody, maintenance and education of minor children, both during the case and after a decree.
What does Section 26 provide?
The section authorises interim arrangements and provisions in a matrimonial decree. It also permits later applications to change those arrangements. The court should take account of the wishes of the children wherever possible, while making decisions appropriate to their welfare.
Text of Section 26 - Custody of children
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:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.
Source: India Code - Hindu Marriage Act, 1955 (official PDF). The proviso was inserted by Section 9 of Act 49 of 2001, effective 24 September 2001.
Meaning and scope of Section 26
1. Interim custody orders
While a matrimonial proceeding is pending, the court may make temporary arrangements about where a child lives, who provides day-to-day care and how contact with the other parent is managed. The precise terms depend on the child's circumstances.
2. Maintenance of minor children
The court may direct appropriate financial support for a child's needs. Such support may address ordinary living expenses, healthcare and other necessary costs, depending on the facts and applicable legal provisions.
3. Education of minor children
Orders can address school fees, educational expenses and arrangements needed for continuity of education. Section 26 expressly covers education as well as custody and maintenance.
4. Orders after a decree
A decree does not necessarily bring child-related questions to an end. On an application by petition, the court may make further orders after the decree and may revoke, suspend or vary previous orders when circumstances justify doing so.
5. Wishes of the child
The statutory phrase "consistently with their wishes, wherever possible" requires attention to a child's views where practicable. Those views are relevant but do not automatically determine the outcome.
Welfare of the child is the guiding principle
Section 13 of the Hindu Minority and Guardianship Act, 1956 makes the welfare of the minor the paramount consideration in appointment or declaration of a guardian. Section 17 of the Guardians and Wards Act, 1890 sets out considerations relevant to guardianship, including the minor's welfare and, where appropriate, an intelligent preference.
In child-custody disputes, courts consider the overall circumstances, including safety, stability, emotional needs, care arrangements, education and the child's relationship with each parent. Neither parent's claim is automatically decisive solely because of parental status or income.
What is the 60-day provision?
The proviso to Section 26 states that an application concerning maintenance and education of minor children pending the matrimonial proceeding should, as far as possible, be disposed of within 60 days from service of notice on the respondent. This is a statutory expedition objective, not an unconditional guarantee that every application will be decided within 60 days.
How can an order be changed?
A party may apply to the court for variation, suspension or revocation of an existing order. Relevant changes might include a child's educational or medical needs, changes in living arrangements, or other developments affecting welfare. The court decides whether a change is justified on the evidence.
Related provisions
- Section 24 - maintenance pendente lite and expenses of proceedings, addressing relief between spouses.
- Section 25 - permanent alimony and maintenance.
- Section 28 - appeals from decrees and orders, subject to its statutory conditions.
Frequently asked questions
Does Section 26 apply only during divorce proceedings?
No. It refers to proceedings under the Hindu Marriage Act and also authorises child-related orders after a decree upon application by petition.
Can the court change a custody order later?
Yes. Section 26 expressly allows the court to revoke, suspend or vary an earlier order.
Is the child's preference binding?
No. The court considers the child's wishes wherever possible, alongside welfare and the particular circumstances.
Does the 60-day period apply to every custody dispute?
No. The proviso specifically concerns applications for maintenance and education of minor children pending the proceeding and uses the qualification "as far as possible".