Child Maintainance

Maintenance is the financial support provided by a husband to his wife, children or parents who cannot provide for themselves.

Legitimacy of children

Who is a legitimate child?

A child born to parents who are legally married is a legitimate child

Who is an illegitimate child?

A child born out of wedlock i.e. to parents who are not legally married is called an illegitimate child.

What are the laws relating to maintenance of child in India?

Different personal laws govern the law of maintenance for different religions in India.

Hindus

Section 125 of The Code Of Criminal Procedure, 1973

It deals with maintenance given by a father to his wife, child and parents.

Children who are capable of maintenance under this section are

-His legitimate or illegitimate minor child, whether married or not, unable to maintain itself. Provided that the Magistrate may order the father of a minor female child referred to provide maintenance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child

-His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself.

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under this section shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person

Section 20 of The Hindu Adoptions and Maintenance Act, 1956

As per this section a Hindu is bound to maintain his/her legitimate or illegitimate child. The child can claim maintenance from his/her father/mother so long as the child is a minor. It is the obligation of a person to maintain his/her daughter till she is married if she is unable to support herself.

Muslims

A Muslim father is obliged to maintain his legitimate son until he attains puberty age (age of majority under Muslim law). A Muslim father should maintain his daughter till she gets married. Under Muslim law, a Muslim father need not maintain his illegitimate children. In Shah Bano case[i] ,the Apex Court held that  If there is a conflict between Muslim personal laws and CrPC , CrPC prevails.

Christians

The Divorce Act, 1869[ii] deals with maintenance to wife and children for Christians.

Despite of religion, anyone who is capable of claiming maintenance under section 125 of CrPC can file for maintenance under the section before a Judicial Magistrate of First Class.

How is the maintenance to children when the divorce is by mutual consent?

In case of mutual divorce the parents can decide mutually upon the maintenance to be provided for the child/children.

Can a child born in a live in relationship claim maintenance?

Although the legitimacy of child born in a live in relationship has been dealt in different ways in different cases by the Supreme Court, the child irrespective of whether it is illegitimate or legitimate can claim for maintenance under Section 125 of The Code Of Criminal Procedure, 1973.


[i] 1985 AIR 945

[ii] Section 41 of the Divorce Act, 1869