Status Of Parental Obligation For Child Support In India
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This Blog is written by Palak Bhawsinka from National Law University, Odisha. Edited by Priyanjali Priyadarshini.
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INTRODUCTION
Child support refers to the continuous periodic contributions provided by a parent for a child’s care and upbringing after marriage or another relationship has come to an end. When a marriage breaks down and ends up separating a couple, the child or children born from the marriage are the person(s) who suffer the most. This concept of Child Support comes into play only when parents of the child decide to get divorced and bring an end to the relationship. When this happens, it is not only the parents involved in the process but also a third party who gets affected by it i.e. the child of the married couple. This is because ending a marriage is not only about separation, especially when there is a child born out of wedlock, but several factors like child custody and child maintenance also get involved. As children have little when it comes to supporting and explicit legal rights, the need of bringing such security in the form of child maintenance was felt.
Bringing an end to the marital status not only revolves around the maintenance of the child but also includes many factors, the prominent one being the custody of the child. Custody of the child is a bit more complex issue that still needs to be addressed, but the issue is exemplified when the parents of the child are not married. In these types of cases, the custody is usually given to the mother and the father is left with the visitor’s rights only. “The child support system for the parents who have never married stated that both the parents should pay for the child support according to their financial situations and if one is not able to pay then they can seek support re-evaluate based on the change in circumstances”. All these rights and laws regarding the parental obligation for child support have been further addressed in this article. And based on these laws and the provisions made in regards to the same and the status of child support in India has been analyzed at the end.
SIGNIFICANCE OF THE DEVELOPMENT AND ITS IMPACT
The parental obligation for child support was the need of the hour. The marital separation was increasing at a faster rate. People chose to live separately rather than tying themselves in a relationship that changed over the period and which started creating tussles between their loved ones. The most important aspect in this was the child who was at the end going to bear the consequences even if the decision was not taken by him/her, but parents. So developing a safety mechanism for the children born out of such wedlock was needed. Creating laws and provisions with respect to the maintenance of the child was seen as growing demand for the supporters of this concept. It was felt that the major issues and challenges that were faced after the divorce was the upbringing of the child. Questions were raised regarding the custody and maintenance of the child. There was chaos as to the burden of maintenance would rest upon the mother or the father. If there was joint custody granted for the child then how and in what manner the contribution to the child’s welfare would have taken place. The next issue that can be addressed was that if a person had custody of the child, remarries, or builds a new relationship, and the new partner brought the child back to him or her, both children may suffer in love, care, attention, or support or maintenance.
Keeping in mind all the questions, procedures were laid down. Laws were drafted which acted as a safety net for the children who on one hand were the most important agent in the whole divorce process and on the other, had very little say on these decisions. These laws and regulations spoke for them and kept them as the utmost priority. It stressed the future aspect wherein the well-being of the children shouldn’t suffer at any cost. Child support indirectly solved the issue of the infanticide that was seen when the unmarried daughter or because of poverty, infants were killed in the womb as they feared taking upon the responsibility of the child and contributing to their growth. Because of the development of the concept of child support, now these concerns were addressed and children were given a better version of life.
There are explicit child support rules which look into the smooth flow of the process. Since child support is not tax-deductible or taxable income, no reporting requirements are in effect. Nonetheless, parents must take care when reporting children as tax dependents[1]. In general, the custodial parent is the parent with whom it resides for most of the year for tax purposes. The parent may claim the child as dependent on the condition that the laws are followed [2]. If the decision regarding the separation mutually arrives between the parties or the parents then there won’t be any interference of the judiciary. But if there is a disagreement or any kind of argument between the parents concerning the separation process then it would be dealt with by the court. The court would then decide the custody and the maintenance of the child looking upon the facts of the issue and the capability of both the parents to take up the responsibility of the child. In the case of infants, the court presumes that the mother should be granted custody since small children must be treated and treated by the mother herself with love, but the child’s interests are still taken into account if the child is over 9 years of age.
If non-custodial parents do not pay their child support as stated in the schedule, the custodial parent will attempt to enforce the child support against the non-custodial parent. Non-payment can trigger the following consequences, such as linking or seizure: if child support is not paid to a non-custodial parent and the lien and seizure do not stop until all child support was paid, it can be a lien or seized from all personal property. Suspension of licenses: the state can suspend the conduct, leisure, and professional licenses of the non-custodial parent. The non-paying parent may have a civil or criminal warrant issued. The parent may be found against the court order i.e. contempt of court or a criminal warrant may be given on their behalf if the matter is severe enough.
Reforms in the guardianship and custodial procedures have been brought in recent times. The law commission in its report no. 257 has recommended the necessary reforms which were then submitted to the ministry of law and justice. Suggested amendments in the report mainly dealt with the child’s welfare. The report made some changes in the acts and introduced new ones. Chapter II A of The Hindu Minority and Guardianship Act, 1956 has been introduced which deals with the concept of custody, visitation rights, and child support. The jurisdiction and the powers of the court can be extended to adjudicating the sums that are owed as child maintenance, and it shall remain until 18 years of age, although after consideration of children’s mental and physical needs, it can continue until 25 years of age.
STATUTORY PROVISIONS
A child has the right to basic facilities such as food, clothes, shelter, and other important conditions for a decent life. It is the natural obligation of a man to give his wife, parents, and children these facilities in the form of maintenance, under the principles of social justice. Various legislation provides for favorable arrangements for maintaining children in India. These laws are aimed at achieving social ends, avoiding vagrancy and suffering, and at providing a transparent, cheap, and quick system through which children can obtain assistance and care. Child maintenance in India is recognized under Section 125 of the Criminal Procedure Code (CrPC) and various other personal laws which have been discussed further in this article.
1. Criminal Procedure Code (CrPC) 1973 – Section 125 [3]:
The magistrate may upon proof of a person having sufficient means or neglect or refusal, order an individual to make monthly allowance for the maintenance of (i) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (ii) his legitimate or illegitimate child, who has reached a majority, and were by due to physical or mental abnormality is unable to sustain itself or (iii) married daughter till she attains majority if her husband is not able to maintain her or (iv) his father or mother, unable to maintain himself or herself. This section further makes provision regarding monthly allowance for the maintenance during the pendency of proceedings. It also provides for disposing of, an interim maintenance application, and proceeding expenses, to the extent possible, within 60 days after the date on which the notice of notification was given to the individual. If any person so ordered fails to comply with the order without sufficient cause, any such magistrate may, for any infringement of the order, issue a warrant for the collection of the amount due in the manner provided for the collection of fines, and may, as the case may be, give a sentence to that person, for the whole or any port of a monthly allowance for maintenance or interim maintenance and costs of the proceeding, as the case may be.
2. Hindu Adoption and Maintenance Act,1956 – Section 20 [4] :
Under this act, Hindu males or females are bound to retain their legitimate/illegitimate minor children and their elderly/infirm parents. An elderly or infirm parent (including a childless stepmother) or an unmarried daughter must be maintained if they are unable to maintain themselves. Section 23(2) notes that the Court will take into account the following when deciding the maintenance amount for children or elderly or infirm parents: (i) the position and status of the parties; (ii) the reasonable needs of the claimants; (iii) if the claimant resides separately, whether the claimant is justified in doing so; (iv) the income and value of the properties owned by the claimant if any; and so on. Section 24 of this act states that if the person ceases to be a Hindu i.e. changes his or her religion then maintenance cannot be claimed under the act. Any modification in the amount of maintenance due to change in circumstances is provided in Section 25 of the act. Under this Act (Section 22), even the heirs of a deceased Hindu are obligated to maintain their “dependants” out of their inherited property. Here “dependants” include the minor son of the deceased person, unmarried daughter, widowed daughter, illegitimate minor son, illegitimate minor daughter.
3. Muslim Women (Protection of Rights on Divorce) Act, 1986 – Section 3 [5]:
A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance for children born to her for two years from the date of birth of such children. It does not matter that the former husband is responsible for paying maintenance if the children were born before or after the divorce. If without showing sufficient reason, the former husband fails to comply with the order passed by the magistrate, he may have to suffer imprisonment for up to one year.
4. Hindu Marriage Act, 1955 – Section 26 [6] :
The court will issue custody, maintenance, and instruction orders for minor children during proceedings under the Act. Under this Act, both parents (the father as well as the mother or either of them) are liable to keep the children as ordered by the court. While making such orders, the court takes into account, as far as possible, the wishes of the children. Such orders and provisions may be amended from time to time. Any request for the maintenance and education of minor children in the course of proceedings under the Act must be decided within 60 days from the date of notification to the respondent, to the extent possible.
CASE LAWS
Jasbir Kaur Sehgal v. District Judge, Dehradun [7]: In this case, it was held that an unmarried daughter who cannot maintain herself has the right to demand maintenance according to the Hindu Adoptions and Maintenance Act of 1956. In this, the father was obliged to maintain his two unmarried daughters even though one of them was living with her mother separately, this was because the mother had no source of income of her own, to maintain her daughter and hence it was an obligation on the part of the father to look after his unmarried daughter.
Bakulabai v. Gangaram [8]: This case dealt with the maintenance of the children born out of void marriage. In this the petitioner- Bakulabai was the wife of the respondent – Gangaram and they gave birth to a child during the intercourse. Gangaram denied to maintain the child and then it was held by the court that even though bigamous marriage is illegal under section 11 of the Hindu Marriage Act,1955, when the Hindu male and female have lived for some years together and as a result, the child is born out of the wedlock, then the child will be given the legitimate status and will be entitled to claim maintenance under section 125 of CrPC.
Jagdish Jugtawat v. Manju Lata [9]: In this case, the petitioner was an unmarried girl who had attained the majority and whose parents got separated because of the change in circumstances that had happened over a while after they got married. So here the petitioner claimed maintenance from her parents and the court was of the view that a daughter is entitled to maintenance under CrPC read along with section 20 (3) of Hindu Adoption and Maintenance Act, 1956 even after attaining majority, till her marriage is recognized under the 1956 act.
Padmaja Sharma v. Ratan Lal Sharma[10]: This case talked about how both the parents owe some duty towards their children, after getting separated when it comes to maintenance. It was held that the Hindu divorced father is not alone responsible to maintain his child regardless of the Hindu divorced mother being capable of earning. It is the obligation of both to contribute to the maintenance of the child under the Hindu Adoption and Maintenance Act, 1956.
ANALYSIS
When a separation takes place after wedlock, then children born out of such marriage are the ones who are in the most disadvantaged position. They are the ones who are facing challenges when it comes to the custody and maintenance process that occurs during the period of time. Financial difficulties can be much more catastrophic than the emotional turmoil the child faces. As divorce has become a dominant institution in India in the late 19th century, there was a need for codified laws for the protection of the interest of the child. Many laws were brought in regards to child support. CrPC, Hindu Adoption and Maintenance Act,1956, Muslim Women (Protection of Rights on Divorce) Act, 1986, and many legislation were drafted which had the provisions for maintenance of a child after marital disruption takes place.
To ensure a stable and nurturing environment for the child, laws which have been created, acts as a deterrence for the parents to neglect the future of the child. Provisions made concerning maintenance and custody of the child acts as the codified rules and procedures which ought to be followed by the parents when they chose to bring an end to their marital status. Efforts are being made by the states and the union as well for the effective implementation of it.
Despite the efforts made by the center, there are criticisms made by many scholars due to the lacunae which can be traced while the whole process is being conducted. At the time of divorce, the matter automatically comes under the jurisdiction of the court which in turn goes against parental authorities when deciding on the welfare of their children. This results in obscurity in the “best interest of the child” requirements and is left in the hands of the judiciary to enumerate upon the parameters. The judiciary then enjoys absolute power in the decision-making of the child’s welfare. Children who have not attained the majority and are still minor, are often exposed to these divorce rigmaroles, which certainly affects their psychological and emotional aspects. The primary duty rests upon the parents to constantly interact with them and let them know about the separation process in a more subtle way which would have a negligible amount of effect on their thinking and growth process.
CONCLUSION
The analytical efforts made above concludes that along with the upbringing and growth of the child after the separation of their parents, one more area has to be looked upon i.e. emotional and mental agony they go through during the process. This aspect is equally important and cannot be jeopardized at any cost.
The equality created through the Padmaja Sharma v. Ratan Lal Sharma case for the maintenance of a child is well appreciated. As children don’t have an explicit legal say in the separation process, their stance should be well reflected as the interest of the child should be the priority in any case. The gap if any, in the laws, should be filled in and more dedicated laws should be framed to address this growing issue of child support. The rights of the children should be looked upon from a distinct view to cater to the special situation that children are in during the whole separation process. They should be considered autonomous self and should be accorded an individual right irrespective of the rights that the parents hold in the divorce proceedings. The gap if any, in the laws, should be filled in and more dedicated laws should be framed to address this growing issue of child support. Along with the judiciary, parents should also make sure that their separation shouldn’t be the cause of hindrance in the growth process of the child.
REFERENCES
[1] Adamsmith, All about Child Support and Spousal Support, Legal service India.
[2] Id at. 1
[3] The code of Criminal procedure (CrPC) 1973, No. 2 of 1974, Acts of Parliament (India).
[4] Hindu Adoption and Maintenance Act, No. 78 of 1956, Acts of Parliament (India).
[5] Muslim Women (Protection of Rights on Divorce) Act, No. 25 of 1986, Acts of Parliament (India).
[6] Hindu Marriage Act, No. 25 of 1955, Acts of Parliament (India).
[7] (1997) 7 SCC 7.
[8] (1988) 1 SCC 537.
[9] (2002) 5 SCC 422.
[10] (2000) 4 SCC 266.
[11] https://www.scconline.com/blog/post/2019/01/10/maintenance-children-and-parents/