Section 26 HMA: Custody of children
Hindu Marriage Act, 1955
Section 26 HMA at a Glance
Section 26 HMA lets the court pass interim, decree and post-decree orders on minor children's custody, maintenance and education. Pending applications for minor children's maintenance and education are to be decided, as far as possible, within 60 days of notice.
Section 26 HMA Bare Act Text
26. Custody of children.
In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such 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, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.
Amendments to this section
- Ins. by Act 49 of 2001, s. 9 (w.e.f. 24-9-2001).
Section 26 HMA in Simple Words
Section 26 HMA empowers the court in any proceeding under the Hindu Marriage Act, 1955 to make orders for the custody, maintenance and education of minor children. The court may pass interim orders (temporary orders while the case is going on) from time to time and may also include provisions in the final decree as the court deems just and proper.
When making these orders, the court acts consistently with the wishes of the minor children, wherever possible. Even after a decree has been passed, a party may file an application by petition for the purpose, and the court may from time to time pass all orders and provisions for the custody, maintenance and education of those minor children that could have been made if the proceeding for the decree were still pending.
Child arrangements are not fixed permanently once ordered. Under Section 26 HMA, the court may from time to time revoke (cancel), suspend (pause) or vary (change) any custody, maintenance or education orders and provisions previously made.
Under the proviso to Section 26 HMA, an application concerning the maintenance and education of the minor children, made while the proceeding for obtaining the decree is pending, must be disposed of, as far as possible, within 60 days from the date notice is served on the respondent. Under Section 28(2) HMA, final orders under Section 26 HMA are appealable, whereas interim orders are not.
When Section 26 HMA Applies
- A proceeding under the Hindu Marriage Act, 1955 is pending before the court, or has already ended in a decree.
- The order concerns the custody, maintenance or education of minor children.
- The court passes interim orders or decree provisions as it deems just and proper, consistently with the minor children's wishes wherever possible.
- After a decree, a party applies by petition for fresh orders, or the court revokes, suspends or varies an earlier order.
- A pending-proceeding application for the minor children's maintenance and education is to be disposed of, as far as possible, within 60 days from service of notice on the respondent.
Example of Section 26 HMA
When Section 26 HMA Does Not Apply
- Where there is no proceeding (pending or concluded by decree) under the Hindu Marriage Act, 1955.
- Where acting consistently with the minor children's wishes is not possible ('consistently with their wishes, wherever possible').
FAQs on Section 26 HMA
What is Section 26 HMA?▼
Section 26 HMA allows the court in any Hindu Marriage Act proceeding to pass interim orders, decree provisions and post-decree orders for the custody, maintenance and education of minor children. It also lets the court revoke, suspend or vary earlier child orders from time to time.
Does the court consider the minor children's wishes under Section 26 HMA?▼
Yes. Section 26 HMA directs the court to make custody, maintenance and education orders consistently with the minor children's wishes, wherever possible.
Can child custody or maintenance orders be changed after the divorce decree under Section 26 HMA?▼
Yes. After the decree, upon an application by petition, the court may pass fresh orders under Section 26 HMA and may also revoke, suspend or vary any orders or provisions previously made.
What is the time limit to decide a pending child maintenance application under Section 26 HMA?▼
60 days, as far as possible. Under the proviso to Section 26 HMA, an application for the maintenance and education of minor children pending the proceeding for the decree is to be disposed of within 60 days from service of notice on the respondent.
Can an interim order under Section 26 HMA be appealed under Section 28 HMA?▼
No. Under Section 28(2) HMA, orders made under Section 26 HMA are appealable only if those orders are not interim orders.
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Sources: Bare Act Text, Hindu Marriage Act, 1955 ·