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Writer's pictureLead India
Nov 18, 20223 min read

What Is The Process Of Marriage Under Section 26 Of Hindu Marriage Act?

In circumstances where a couple has cohabited an unmarried kid, is living apart from one another, or is involved in a legal dispute, one of the issues that arises between them is the custody of the child. Indian regulations on child custody are designed to reduce disagreements in these areas. In order to settle this issue, the Applicant/Petitioner must submit an application under Section 26 of the Hindu Marriage Act of 1955 to the family court of the applicable jurisdiction. After that, the court will consider the standards specified in Section 13 of the 1956 Hindu Minority and Guardianship Act.


After a divorce, the child will have equal rights for both parents. However, it is up to the court to decide whether or not to grant a minor the right. However, mothers will be granted custody under section 6(a) of the Hindu Minority and Guardianship Act of 1956 since they are the ones who have the most insight into the child's welfare and other minute details.

Various forms of custody:

  • Lawful custody: It entails the division of parental authority over significant life choices affecting their minor children. These choices could relate to a child's school, medical procedures, therapies, and counseling. It's possible that both parents will have an equal say in the matter. In this situation, one parent has the authority to decide what's best for the child without taking the other parent's opinions into account.

  • Affective custody: Physical custody is defined as the right to control the kid's daily activities and any matters involving the guardian with whom the child resides.

  1. Having exclusive custody: A kid who has sole custody, commonly referred to as single-parent custody, is only permitted to live with that parent, who also serves as the child's primary caregiver; however, the other parent may be granted visitation rights.

  2. Physical custody is shared: joint parenting. Both parents are given the right to joint physical custody, commonly referred to as shared parenting custody. Care for the child is a shared responsibility between them. Additionally, the child receives the same amount of affection and time from both parents.

  3. Bird's nest custody: In this arrangement, parents visit their children instead of having them live with them.

  4. Split custody: When both parents have joint custody of many children, one parent has primary custody of one child while the other has primary custody of the other children.

  5. Alternating custody: In this arrangement, a child spends some time with one parent and spends the rest of the time with the other.

  6. Third-party custody: This type of custody is when the child is placed in the care of a third party rather than both parents and is not shared between them.

  • Joint Parentage: Joint custody is described as a type of custody when both parents are present for the child's upbringing but do not necessarily live together.

Section 26 of the Power of the Court (HINDU MARRIAGE ACT):


According to Section 26 of the Hindu Marriage Act, the court may make interim orders and provisions in the decree regarding the child custody and guardianship policy, maintenance, and education of minor children in a manner that is consistent with their wishes, whenever possible, and may make all such orders and provisions after the decree upon application by petition for the purpose, make from time to time. Additionally, the court has the authority to periodically cancel, suspend, or modify any earlier orders and provisions.


It follows that the court has the authority to grant custody of a minor child and then, whenever it sees fit, to withdraw such custody, according to the wishes of the child and other circumstances that are deemed appropriate for the child's welfare.

Timeframe: The Court must decide the aforementioned application within 60 days of sending the Respondent a summons.


Parameters:

  • No person shall be entitled to the guardianship if the court is of the opinion that their guardianship will not be for the welfare of the minor, according to Section 13 of the Hindu Minority and Guardianship Act, 1956. Additionally, the court must take into account only one factor, which is the paramount consideration of a child's welfare.

  • In the case of Pushpa Singh v. Inderjit Singh 1990 (supp.) SCC 53, the Hon. the Apex Court established the established legal norm that the mother had the primary custody of children under the age of five. The Court additionally concluded that there is no suitable substitute for the child's need for his mother's attachment.

In cases of child custody, free legal advice online can be sought. If the petition is filed in Noida, lawyers in Noida can give legal advice. If couples are living in Delhi then a Court Marriage lawyer in Delhi can also give advice.


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