Under Section 26 of the Act, the court has been empowered to pass any order or make any arrangement in respect of custody, maintenance and education of children during the pendency of the proceedings or after any decree is passed under the Act in any case between the parents of the children. In the absence of any such proceeding only the Guardian Courts can pass such order.
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The Act makes provision only in respect of minor children. The orders made under the section can be varied, suspended or revoked from time to time and even after the termination of the proceedings. The object of the section is to enable the court to make just and proper provision for the welfare of minor children.
ADVERTISEMENTS:
The expression ‘child’ in the section covers both legitimate or illegitimate child. The court has got the jurisdiction to make an order for custody of an illegitimate child under Section 26 of the Act. The father has got primacy over the mother with respect to custody of minor’s person as well as property. However, welfare of the child is the paramount consideration.
After, Marriage Laws (Amendment) Act of 2001, in Section 26 of the Hindu Marriage Act, the following provision shall be inserted that the application with respect to the maintenance and education of the minor children, pending the proceedings for obtaining such decree, shall, as far as possible, be disposed of within 60 days from the date of service of notice on the respondent.
The object of making such a provision is that the interest of children is not adversely affected or neglected on account of the proceedings between their parents. Whenever the court proceeds to pass such an order it would take into consideration the wishes of the children as far as possible.
In Kartar Chand v. Smt. Tarawati, the Bombay High Court laid down that Section 26 provided for interim order from time to time as also for making provisions in the decree with regard to custody, maintenance and educations of minor children consistently with their wishes. Section 26 therefore empowered the court to provide for the maintenance of minor children. It provided for the maintenance of both pendente lite as also after the passing of the decree.
ADVERTISEMENTS:
Where the application for custody of her minor child below the age of five years has been made by the wife in the course of proceeding for judicial separation instituted by her, the custody should be entrusted to her unless there are special circumstances suggesting that the welfare of the minor demanded otherwise.
The Delhi High Court on the other hand observed that the rule of law of five years is a guiding factor but the pivotal factor is the benefit and well being of the minor. It is in the interest of the minors that they are allowed to remain in the custody of the mother till there is change of circumstances.