Custody, Maintenance and Education of Children (Section 26)

Section 26 of the Hindu Marriage Act, 1955 is the matrimonial court's working tool for the children of a broken marriage. While a petition for divorce, judicial separation, nullity or restitution of conjugal rights is pending — and even after the decree — the court may, from time to time, pass orders about the custody, maintenance and education of the minor children of the parties. The provision does not stand alone. It is read alongside Section 6 of the Hindu Minority and Guardianship Act, 1956 (natural guardianship) and Section 13 of the same Act (welfare of the minor as paramount consideration), with the Guardians and Wards Act, 1890 supplying the residual procedure. Section 26 is therefore the procedural gateway; the welfare-paramount test is the substantive engine.

Three working ideas anchor the chapter. First, Section 26 confers a discretion on the matrimonial court — it is not an independent cause of action. Without a substantive petition, no order under Section 26 can be made. Second, the section is welfare-led: the statutory phrase "as it may deem just and proper" is read down by the courts so that the welfare of the minor controls every order. Third, Section 26 orders are not final — they may be revoked, suspended or varied "from time to time" as circumstances change, and the matrimonial court retains a continuing supervisory jurisdiction.

Statutory anchor — Section 26 of the Hindu Marriage Act, 1955

Sections 24 to 27 of the HMA collect the ancillary reliefs that travel with a matrimonial petition. Section 24 deals with maintenance pendente lite of the spouse; Section 25 deals with permanent alimony — both surveyed in our chapter on alimony pendente lite, permanent alimony and maintenance. Section 27 deals with disposal of joint property given at or about the time of marriage. Section 26 sits in the middle of this cluster and is concerned exclusively with the children of the marriage.

The statutory text is short. The court is empowered, in any proceeding under the Act, to make from time to time such interim orders and 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. The court may also revoke, suspend or vary any such order on application or on its own motion. The architecture is deliberately broad — narrow ingredients would have hampered the welfare-paramount test.

Three statutory phrases do most of the work and must be memorised exactly. "Any proceeding under this Act" — fixes the gateway: there must be a substantive HMA petition pending or just decided. "From time to time" — fixes the continuing nature of the jurisdiction. "Consistently with their wishes, wherever possible" — reads the child's voice into the order, but does not give the child a veto.

Conditions for invoking Section 26

For the matrimonial court to exercise jurisdiction under Section 26, four conditions must coexist. They flow from the structure of the Act and from the consistent reading the High Courts have given the section over five decades.

1. A pending or just-decided proceeding under the HMA. Section 26 is ancillary in character. The matrimonial court does not get jurisdiction over the children unless a petition for substantive relief — under Sections 9 (restitution), 10 (judicial separation), 11 (nullity), 12 (voidable marriage), 13 (divorce) or 13B (mutual consent) — is pending in the court. If the substantive petition is dismissed, the proceeding relating to the children would in principle terminate; but the Himachal Pradesh High Court in Parminder Lal v. Suman Lata held that an order made on the child's custody during the pendency of a divorce petition does not automatically become void merely because the main petition is dismissed for default of the husband. The court read the word "decree" in Section 26 as the final determination of the matter in controversy, drawing on Section 21 HMA, which makes the Code of Civil Procedure applicable to all proceedings under the Act.
2. Minor children of the parties to the marriage. The order can only relate to minors. Once the child attains majority, Section 26 is spent. The expression "minor children" is unqualified — it covers legitimate, illegitimate (the child of a void marriage, deemed legitimate by Section 16 HMA — see our chapter on void marriages), and adopted children. Section 26 does not extend, on its own terms, to a major unmarried daughter — but Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 does, by allowing maintenance to an unmarried daughter who is unable to maintain herself out of her own earnings or other property.
3. The matrimonial court is the seized forum. Once one of the alternative forums under Section 19 HMA is invoked, only that court may pass ancillary orders during pendency. An application for custody during a Hindu Marriage Act proceeding cannot be split off to the Guardian Court under the Guardians and Wards Act, 1890 — though the Guardian Court remains the forum of choice once the matrimonial proceeding is over and a fresh standalone custody dispute arises. The two regimes are concurrent, not parallel.
4. The child's welfare is the lodestar. Section 26 itself does not lay down any criteria for deciding custody, but it is settled that the proceedings, insofar as they relate to custody, are governed by the Hindu Minority and Guardianship Act, 1956. The welfare-paramount rule of Section 13 HMGA controls the discretion that Section 26 confers.

Stages at which orders may be made

The phrase "from time to time" covers a continuum of orders. Custody, maintenance and education orders under Section 26 may be made at any of the following stages — and may be successively varied as the children grow up.

1. Interim order during pendency of proceedings. No separate application is necessary if maintenance is claimed during pendency; child's maintenance can be tagged onto the wife's claim under Section 24 HMA. The High Courts of Andhra Pradesh, Karnataka, Rajasthan, Punjab and Haryana, Delhi and Kerala accept this view; Patna, Allahabad, Bombay and Jammu and Kashmir take a stricter procedural position. The line of least resistance for a careful drafter is still to file a Section 26 application alongside the Section 24 application.
2. Order in the decree itself. When the matrimonial court is granting or refusing the substantive relief — divorce, nullity, judicial separation — it will simultaneously dispose of any pending Section 26 application by appropriate provisions in the decree.
3. Order after the decree, on a fresh petition. Section 26 expressly contemplates post-decree orders "as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending". The matrimonial court does not become functus officio in respect of the children once the divorce or annulment decree is passed.
4. Revocation, suspension or variation. The closing limb of the section gives the court a continuing jurisdiction to revoke, suspend or vary any prior custody, maintenance or education order. Custody orders are in their nature interlocutory — the court may vary any clause in a compromise of the parties relating to custody.

Welfare of the minor — the controlling test

Section 26 confers ample discretion on the divorce court to decide custody, maintenance and education "as it may deem just and proper, and consistently with their wishes wherever possible". The provision is silent on criteria. The criteria come from Section 13 of the Hindu Minority and Guardianship Act, 1956 — the welfare-paramount rule — read together with the Supreme Court's gloss in Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090, that the controlling consideration governing the custody of children is the welfare of children and not the rights of the parents. A father who is otherwise a fit person may be denied custody if the court finds that the mother can promote the child's welfare equally or better — a doctrinal pivot from "father preferential" to "welfare paramount" that pre-dates Section 13 HMGA in spirit but acquired statutory force only with the 1956 Act.

The legislative trajectory is striking. Under Section 19 of the Guardians and Wards Act, 1890 regime, the father could not be deprived of custody unless he was found unfit; loss of caste, conversion, remarriage or an immoral life were not enough. Section 13 HMGA inverts the position. The welfare of the minor is now the paramount consideration, and Section 6 HMGA — which names the father as the natural guardian and after him the mother — must be read subject to Section 13. The audit of Section 26 orders is therefore done not against the parent's right but against the child's interest.

Gita Hariharan and the meaning of "after"

The most consequential gloss on natural guardianship — directly relevant to any Section 26 dispute — is the Supreme Court's reading of Section 6(a) HMGA in Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149. The provision names the father as the natural guardian "and after him the mother". Read literally, the mother could only step in after the father's lifetime. The Supreme Court rejected this reading on Article 14 grounds and held that "after" in Section 6(a) means "in the absence of", not "after the lifetime of". Where the father is wholly indifferent to the minor's affairs, where there is mutual understanding between the spouses placing the mother in exclusive charge, or where the father is physically or mentally unable to take care of the minor, the father is "absent" within the meaning of the section and the mother becomes the natural guardian for the time being. The decision saved the constitutionality of Section 6(a) by harmonious construction with Sections 4 and 13 HMGA.

For Section 26 orders the implication is that the matrimonial court is not bound by any presumption of paternal supremacy. The court treats both parents as equally entitled in principle and decides the question on the welfare of the child — a doctrinal shift that runs alongside the larger statutory revaluation of women's rights under the stridhan and women's property rights framework. Jijabai v. Pathan Khan, AIR 1971 SC 315, had foreshadowed this — there the father had lived separately for over twenty years without taking interest in the daughter's affairs and the Supreme Court treated the mother as the natural guardian for the purpose of granting a lease.

The tender-years presumption and the proviso to Section 6 HMGA

The proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 directs that the custody of a minor who has not completed the age of five years "shall ordinarily be with the mother". This is the tender-years presumption — a working rule built on a child-development premise that a small child is better cared for by the mother. Two doctrinal points must be remembered.

1. The presumption is not absolute. It is a rule of preference, not an indefeasible right. If the welfare of the child lies with the father, custody may be granted to him even below age five. The Rajasthan High Court in Prakash Chandra v. Chandrawati, AIR 1996 Raj 162 (DB), granted custody of a nine-year-old to the father where the father had not neglected the child and was in a better position to provide.
2. It interacts with adolescence. A daughter who has reached the age of adolescence may be in particular need of a mother's company — for personal guidance, monitoring of physiological changes and instilling fidelity. In Anita Kumar v. K.R. Kachha, where the father had remarried and the second wife was pregnant, the mother's company was held necessary and custody was granted to the mother.

Conduct of the parent in the marital dispute is sometimes decisive. In Mangla Devi v. Shri Ran Bahadur Thapa, where the marriage was dissolved on the ground of the wife's adultery, the court granted custody of the child to the father. Conversely, where a father had neglected the children, his conduct disentitled him from custody. As against a stranger — even a grandparent — a parent's right is considered superior; Madhu Bala v. Arun Khanna, AIR 1987 Del 81, says custody must be preferred to the mother over other relations. The rule, restated, is that the parent's conduct is a window into the child's welfare; it is not an independent ground for the court's discretion.

Father preferential? — the long shadow of Section 19 GWA

For nearly a century the framework was father preferential. The English-trained judges who interpreted personal law applied a strong preference for paternal custody, codified by Section 19 of the Guardians and Wards Act, 1890 — the father could not be deprived of custody unless found unfit, and his testamentary appointment of a guardian could even exclude the mother. That position has now been substantially relaxed in three layers:

1. Statutory layer. Section 13 HMGA, enacted in 1956, makes the welfare of the minor the paramount consideration in any appointment or declaration of a guardian. The provisions of the GWA — particularly Section 19 — are read down to harmonise with Section 13.
2. Constitutional layer. Githa Hariharan (1999) read Article 14 into Section 6(a) HMGA, equalising the natural guardianship of the parents in functional terms.
3. Judicial layer. Rosy Jacob (1973) held that the father has no indefeasible claim to custody under Section 25 GWA merely because he has no defect of personal character; the test is whether his custody can promote the welfare of the minor equally or better than the mother's.

The matrimonial court applying Section 26 of the HMA receives all three layers. There is no presumption in favour of the father; there is no presumption against the mother because of remarriage (the remarriage of a mother is not, by itself, a disqualification); and the mother's conversion to another religion, on its own, does not deprive her of custody — the question always returns to the welfare of the child.

Joint custody, visitation and shared parenting

Section 26 does not contain any explicit provision for access or visitation. But the absence of an explicit provision has not stopped the courts from carving access rights as a matter of welfare. Where parties fall apart and custody is given to one parent, the other parent will ordinarily be allowed reasonable access — it is in the welfare of the child to remain in contact with both parents. The doctrinal proposition is that custody is one decision and access is another; the second is not a consolation prize but a child-centric provision that recognises the child's continuing interest in the non-custodial parent. Joint custody — alternating physical custody between the parents over agreed periods — is not yet a settled doctrine in Indian matrimonial practice, but the seeds of shared parenting can be seen in orders that grant generous visitation, holiday custody and educational decision-making to the non-custodial parent.

Practitioners should keep in mind that Section 26 orders are addressed to the parents, not to the child. The child is not a party in the formal sense, though his or her wishes are heard "wherever possible". Where the child is intelligent enough to understand his or her own well-being, the wishes of the child are a relevant factor. The matrimonial court is acting in parens patriae and is not constrained by the strict adversarial frame of the spouses' contest.

Maintenance and education of children

Section 26 deals with maintenance and education of the minor children of the marriage along with custody — the three are bracketed together because the parent who has custody must have the means to maintain and educate the child. The liability to maintain the child rests on both parents; where both mother and father are working they are equally liable. Maintenance under Section 26 includes food, raiment, lodging, medical needs and educational expenses — anything that is necessary for the mental and physical well-being of the minor.

There are three intersecting regimes for child maintenance, and a litigator must keep them apart.

1. Section 26 HMA. Available only when a substantive HMA petition is pending or has just been decided. Specific to children of the parties to the matrimonial proceeding.
2. Section 20 HAMA. A standalone statutory right of the legitimate or illegitimate child to claim maintenance from the parent during minority — and, in the case of an unmarried daughter, even after majority where she is unable to maintain herself out of her own earnings. Even an agreement at the time of divorce that the mother will keep custody and bear maintenance does not extinguish the statutory right of the child to claim maintenance from the father — the High Courts have so held following Mohinder Singh v. Ravneet Kaur.
3. Section 125 BNSS / 125 CrPC. A summary remedy in the criminal court for maintenance of the child, complementary to the civil remedies under HMA and HAMA.

Where the child's maintenance has been quantified by a competent civil court — say, in a Section 26 order — the criminal court is statutorily bound to cancel or vary its earlier order to align with that decision. But the converse is also true: a magistrate's order under Section 125 is not a bar to a Section 26 enhancement once the matrimonial court is seized of the matter. The wife's maintenance under Section 24 may, on the High Court views noted earlier, include the child's needs even if no separate Section 26 application is filed; the safer course is to file both. For the broader civil-law framework on spousal and dependant maintenance see maintenance under Hindu law.

Variation — "from time to time"

The closing limb of Section 26 is doctrinally the most flexible. The court may revoke, suspend or vary any prior order "from time to time" — and the trigger is changed circumstances. A child who was three when the original custody order was made may, at age twelve, have developed clear preferences and educational needs that the original order did not anticipate. The non-custodial parent may have stabilised emotionally, financially or geographically. The custodial parent may have remarried into a household that is unsuitable. Each of these is a ground for the court to revisit the earlier order. The doctrine that custody orders are interlocutory in nature and the court is free to vary any clause in a compromise of the parties relating to custody is now well-established.

The standard for variation is not whether the court today, sitting de novo, would have made a different order — that is too low a threshold and would re-open every custody case. The standard is whether circumstances have changed materially and the welfare of the child now requires a different arrangement. The continuing supervisory jurisdiction of the matrimonial court is a feature of Section 26, not a bug.

Appeal and finality

An interlocutory order made under Section 26 — for instance, an interim custody order during the pendency of a divorce petition — is not appealable under Section 19 of the Family Courts Act, 1984. But where the order for custody is made after the conclusion of the proceedings — that is, in the decree itself or by a subsequent post-decree petition — the order is not interlocutory and an appeal lies. The line is between the interim and the final disposition of the custody question. A wise practitioner records the interim order so as to preserve the ability to seek variation, while pursuing the substantive remedy in the appellate forum where the order is final.

Concurrent jurisdiction with the Guardian Court

Section 26 of the HMA and Sections 7, 17 and 25 of the Guardians and Wards Act, 1890 occupy overlapping ground. The matrimonial court under the HMA is the preferred forum during pendency of a matrimonial proceeding — indivisibility of the relief argues against a parallel guardianship petition before a Guardian Court. Once the matrimonial proceeding is over, a fresh standalone custody dispute may be brought in the Guardian Court under Section 9 GWA at the place where the minor ordinarily resides. The two regimes are concurrent and complementary; the welfare-paramount rule of Section 13 HMGA governs both. The chapter on welfare of minor as paramount consideration develops this overlap in detail.

Leading authorities

The cases that exam aspirants are most often tested on, in connection with Section 26 of the Hindu Marriage Act read with Sections 6, 7 and 13 of the Hindu Minority and Guardianship Act, are:

1. Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149 — "after" in Section 6(a) HMGA means "in the absence of"; the mother is a natural guardian co-equal with the father in functional terms; Article 14 read into the section.
2. Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090 — the controlling consideration in custody is the welfare of children, not the rights of the parents; the father has no indefeasible claim under Section 25 GWA.
3. Jijabai v. Pathan Khan, AIR 1971 SC 315 — where the father is "as good as non-existent" because of indifference, the mother is the natural guardian for the purpose of dealing with the minor's property.
4. Kumar Jahgirdar v. Chetana K. Ramatheertha, AIR 2001 SC 2179 — in case of divorced parents, the father does not cease to be the natural guardian of his children; but Section 13 HMGA still supplies the welfare test.
5. Mohinder Singh v. Ravneet Kaur, AIR 2007 — the statutory right of the child to maintenance under Section 20 HAMA cannot be taken away by an agreement between the divorcing parents that the mother would maintain the child.
6. Parminder Lal v. Suman Lata (Himachal Pradesh) — a custody order made during pendency of a divorce petition does not become void merely because the main petition is later dismissed for default.
7. Mangla Devi v. Shri Ran Bahadur Thapa — conduct of the parent towards the marriage may be decisive on welfare; custody granted to the father where the wife's adultery dissolved the marriage.
8. Prakash Chandra v. Chandrawati, AIR 1996 Raj 162 (DB) — the tender-years presumption is rebuttable; custody of a nine-year-old granted to the father in the welfare of the child.
9. Madhu Bala v. Arun Khanna, AIR 1987 Del 81 — in case of competing custody claims, the mother is preferred to other relations, including grandparents.

Distinguishing Section 26 from Section 25 GWA

For the exam-aspirant, the cleanest way to keep Section 26 of the Hindu Marriage Act distinct from Section 25 of the Guardians and Wards Act, 1890 is to remember three differences. Section 26 HMA operates only where a matrimonial proceeding under the HMA is pending or has just been decided; Section 25 GWA is a standalone remedy. Section 26 HMA is procedural and discretionary, with welfare-paramount supplied externally by Section 13 HMGA; Section 25 GWA, after Rosy Jacob, also operates on welfare-paramount but the doctrinal route is through the GWA itself. Section 26 HMA orders may be revoked, suspended or varied "from time to time" by the same matrimonial court; Section 25 GWA orders are revisable on changed circumstances by the Guardian Court. The two provisions are not in competition — they are layered, with the matrimonial court the preferred forum during pendency and the Guardian Court the residual forum once the matrimonial proceeding is over.

For comparable ancillary maintenance under the matrimonial Acts, see our treatment of divorce under Section 13 HMA, divorce by mutual consent under Section 13B HMA, judicial separation under Section 10 HMA, restitution of conjugal rights under Section 9 HMA, and voidable marriages under Section 12 HMA. The Section 26 jurisdiction operates wherever any of these substantive petitions is pending. For the wider doctrinal map — including the leading personal-law decisions that frame the welfare test — see our chapter on landmark Hindu-law cases. For the substantive law of guardianship that supplies the welfare-paramount test, return to our Hindu Law notes hub for the full chapter list.

Exam-angle distinctions to remember

1. Section 26 HMA versus Section 24 HMA — Section 24 deals with the spouse's maintenance pendente lite; Section 26 deals with the children's custody, maintenance and education. The two are independent applications, though some High Courts allow the child's maintenance to ride on the Section 24 application.
2. Section 26 HMA versus Section 20 HAMA — Section 26 is procedural and ancillary; Section 20 HAMA is a substantive standalone right. Section 20 HAMA covers an unmarried daughter even after majority; Section 26 HMA is confined to minors.
3. "After him the mother" in Section 6(a) HMGA — after Githa Hariharan, this means "in the absence of", not "after the lifetime of".
4. Tender-years presumption — Section 6(a) proviso HMGA: custody of a minor below five years "shall ordinarily be with the mother". The presumption is rebuttable on welfare grounds.
5. Section 26 HMA versus Section 25 GWA — matrimonial-court forum during pendency versus Guardian Court forum standalone. Both apply welfare-paramount; both are revisable on changed circumstances.
6. Father preferential rule of Section 19 GWA is now relaxed by Section 13 HMGA (welfare paramount) and read down by Rosy Jacob and Githa Hariharan.
7. Visitation and access — not expressly provided in Section 26 but routinely granted by courts as part of the welfare order.
8. Variation — Section 26 closing limb allows revocation, suspension or variation "from time to time" on changed circumstances.

Conclusion

Section 26 of the Hindu Marriage Act, 1955 is a study in layered jurisdiction. It is procedurally narrow — only the matrimonial court, only during a pending or just-decided HMA petition, only with respect to the minor children of the marriage. It is substantively broad — "as it may deem just and proper, consistently with their wishes wherever possible". The welfare-paramount test of Section 13 HMGA is the engine, and Githa Hariharan, Rosy Jacob and Jijabai are the case-law map. The chapter sits at the intersection of matrimonial law and personal-law guardianship — and the candidate who learns it well will find that custody questions in the exam, however clothed, return to one rule: welfare is paramount; parents are second.

Frequently asked questions

Can the matrimonial court pass a custody order under Section 26 HMA when the divorce petition has been dismissed?

An interim custody order made during the pendency of a divorce petition does not automatically become void merely because the main petition is dismissed. The Himachal Pradesh High Court in Parminder Lal v. Suman Lata held that the word "decree" in Section 26 means the final determination of the matter in controversy, drawing on Section 21 HMA which makes the CPC applicable to all proceedings under the Act. But the matrimonial court does not get fresh jurisdiction over the children unless a substantive petition is pending in it; once the proceedings are completely concluded, the residual forum is the Guardian Court under Section 9 GWA.

Does Section 26 HMA apply to illegitimate children?

Yes. The expression "minor children" in Section 26 is unqualified. It covers legitimate, illegitimate and adopted children of the parties. By virtue of Section 16(1) HMA, children of a void marriage are deemed to be legitimate for the purpose of the Act, so they are within Section 26 even though the marriage itself is annulled. For an illegitimate child not covered by Section 16, Section 6(b) HMGA designates the mother as the natural guardian and after her the father — and the matrimonial court applies the same welfare-paramount test under Section 26.

What is the practical effect of Githa Hariharan on Section 26 custody orders?

In Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149, the Supreme Court read down the word "after" in Section 6(a) HMGA — the mother's natural guardianship is not deferred to the father's lifetime; she steps in whenever the father is "absent" in a functional sense, including indifference, mutual understanding placing her in exclusive charge, or his physical or mental incapacity. The matrimonial court applying Section 26 therefore treats both parents as functionally equal natural guardians and decides custody on the welfare of the child, not on any presumption of paternal supremacy.

Is the tender-years presumption an absolute rule?

No. The proviso to Section 6(a) HMGA says the custody of a minor below five years "shall ordinarily be with the mother". The word "ordinarily" makes it a rebuttable presumption, not an indefeasible right. Where the welfare of the child lies with the father — for instance in Prakash Chandra v. Chandrawati, AIR 1996 Raj 162 (DB), where the father had not neglected the child and was in a better position to provide — custody may be granted to the father. The tender-years rule yields to the welfare-paramount test of Section 13 HMGA.

Can a Section 26 order be altered after the divorce decree is final?

Yes. The closing limb of Section 26 expressly empowers the matrimonial court to revoke, suspend or vary any prior order "from time to time". Custody orders are interlocutory in nature and the matrimonial court retains a continuing supervisory jurisdiction. The trigger for variation is materially changed circumstances and the present welfare of the child — not the merits of the original order. Either parent may apply by petition; the court may also act on its own motion. Section 26 variations are independent of any later proceedings before a Guardian Court under the Guardians and Wards Act, 1890.