Disputes over children are adjudicated by the courts with the closest contact with the child. Therefore, the court of the place where the child resides will assume jurisdiction for any disputes over custody and other children-related issues.

The obligation of a parent to maintain a child outside the marriage is same as the obligation to maintain the child born within the marriage. The law does not differentiate between a legitimate and an illegitimate child.

Custody - Indian laws provide the same rights and claims to children whose parents have never married as those available to children born within a marriage.

There is no standard formula that is applied in relation to custody/parental responsibility following the breakdown of a relationship or marriage. The most important principle governing the decisions of the courts in relation to children is the best interest and welfare of the child.

Generally speaking, the mother has a preferential right to the custody of an infants below the age of five years and female children. However, where the court upon substantial evidence reaches the conclusion that the mother cannot secure the best interest and welfare of the child, the primary custody of infants can be entrusted to fathers.

The courts in India are highly favourable in permitting access/contact/visitation, following the breakdown of a relationship or marriage to the parent who does not have custody of the child. It is settled law that a child should not miss out on the love and affection of both the parents as a result of breakdown of marriage. Depending on the facts and circumstances of the case, the courts may permit, weekly, fortnightly or overnight visitation. The court may also permit sharing of the holidays between the parents.

Maintenance - The parent with custody of the child can file for maintenance on behalf of the child in the capacity as legal guardian. Such parent can seek maintenance in the form of monthly allowance, which would cover the child expenditure on education, food, clothing and clothing. Maintenance is usually awarded on a monthly basis. The parent can also seek maintenance in form of a lump sum figure, which is usually deposited in the form of a fixed deposit in the bank for the purposes of the child's higher education or marriage expenses.

To further a claim of maintenance, financial claims in the form of capital (to include transfer of property) can be made. The courts may grant security of property to secure the claim of maintenance.

 

Maintenance Calculated - If a person with sufficient means, neglects or refuses to maintain his legitimate or illegitimate minor child (whether married or not) or neglects or refuses to maintain his legitimate or illegitimate child (not being a married daughter) who has attained majority, and the child is, by reason of any physical or mental abnormality or injury, unable to maintain itself, a magistrate can order him to make a monthly allowance for the maintenance of his child (section 125, CrPC). Section 125 Cr.PC can be enforced only against men (obligations for women are provided for in different statutes).

A Hindu father or a Hindu mother is under a statutory obligation to provide maintenance to their children (Hindu Adoptions and Maintenance Act 1956). The obligation to maintain the children is shared equally by the mother and father. However, with the social set up in India, the father is called upon to primarily maintain the children as he is still considered to be the primary breadwinner for the family. In a situation where the father has no means or insufficient means, the mother is therefore under an obligation to provide maintenance.

It has been held that, in determining the amount of maintenance to be awarded to children, regard must be had to the position and status of the parties and the reasonable needs of the child.

Section 3(b) of the Hindu Adoptions and Maintenance Act 1956 provides that maintenance includes in all cases the provision for food, clothing, residence, education and medical attendance and treatment (plus where there is an unmarried daughter, all reasonable expenses related to her marriage). Section 3(c) provides that a "minor" is a person who has not reached the age of 18 years (see Question 22). Under section 20 of the Hindu Adoptions and Maintenance Act 1956, a Hindu is bound, during his/her lifetime, to maintain his/her children. A minor child, provided he/she is a minor, is entitled to claim maintenance from his/her father or mother (see Question 23). Under section 20, it is as much the father's obligation to maintain a minor child as it is the mother's obligation.

Ordinarily, an order of maintenance would end when the child attains the age of majority (18 years of age) but if the welfare of the child so requires, it may be continued beyond it, particularly when the child is engaged in higher education.

In Jagdish Jugtawat v Manjulata and others (2002) 5SCC 422, it was held that a female child has a right to be maintained by her parents even after she attains majority.

Under the Mohammedan law (Islamic law) a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married.

In Amarendra Kumar Paul v Maya Paul and others (2009) 8 SCC 359, the Supreme Court held that an application for grant of maintenance under section 125 of the CrPC, can be continued up until the child reaches majority. Therefore, once the child attains majority, section 125 would cease to apply.

A minor, in his/her individual capacity, can make a claim against his/her parents. However, the minor child must approach the court through a legal guardian.

A child who has attained the age of majority (that is, over the age of 18 years) can make a claim directly against his/her parents. However, a claim for maintenance would only be successful if made for the purposes of higher education or marriage expenses. A child whose has attained the age of majority may, however, seek civil remedy in the form of seeking his/her share in the joint family property (as applicable).

In India, a Hindu child (male or female) acquires a right in the undivided family property, by virtue of birth. The child is entitled to such share in the property by virtue of being a coparcenar and can therefore seek his/her share in the undivided family property.