Can Children Claim Maintenance From Estranged Parents?

    Family Law Guides
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Yes, children can claim maintenance from their estranged parents under Indian law, whether the parents are legally married or separated, divorced, or living apart. Both parents have a legal obligation to financially support their children, and this responsibility remains intact even after separation or divorce. Indian law recognizes the child’s right to receive financial support from both parents to ensure their well-being and development, and it offers legal recourse for the child to claim maintenance.

1. Legal Provisions for Children’s Maintenance

The right of a child to claim maintenance is governed by several provisions in Indian law, primarily the Criminal Procedure Code (CrPC), the Hindu Adoptions and Maintenance Act, and the Guardians and Wards Act.

a) Section 125 of the CrPC – Maintenance of Children

Section 125 of the Criminal Procedure Code (CrPC) provides a fast-track remedy for children to claim maintenance from their parents, particularly in cases where the parents are estranged, separated, or divorced. This section specifically mandates that a person (usually a father) is required to provide maintenance to their minor children who are unable to support themselves.

The law applies to all citizens of India, including Hindus, Muslims, Christians, and others. Under this provision, a parent’s failure to provide financial support to their children can lead to the family court ordering the parent to pay maintenance. The amount is determined based on the financial capacity of the parent and the needs of the child.

Key Features of Section 125:

  • Maintenance is typically granted for minor children (under the age of 18).
  • A child’s claim can be made directly by the child (through a guardian) or the custodial parent.
  • The court considers factors such as the parent’s income, the needs of the child, and the parent’s ability to pay when determining the amount of maintenance.

b) Hindu Adoptions and Maintenance Act, 1956

Under Section 20 of the Hindu Adoptions and Maintenance Act, minor children are entitled to maintenance from both their parents, regardless of whether the parents are living together or not. This Act applies to Hindus and provides that parents must provide maintenance not only during the marriage but also after a divorce or separation.

The maintenance amount is determined based on the child’s needs, the parent's ability to pay, and the standard of living the child was accustomed to during the marriage.

The Act also provides that the mother is entitled to claim maintenance for the child, especially if the father is not providing it, and the court will decide the amount based on the financial status of the parents and the child’s needs.

c) Guardians and Wards Act, 1890

The Guardians and Wards Act is often used when a child’s custody is disputed. While this Act mainly governs issues related to child custody and guardianship, it also addresses maintenance. The court may pass an order for the estranged parent to pay for the child’s upkeep and education, especially if the child is in the custody of the other parent.

2. Who Can Claim Maintenance?

Under Indian law, the following individuals or entities can claim maintenance for children:

  • Minor Children: As per Section 125 of the CrPC and the Hindu Adoptions and Maintenance Act, minor children (under the age of 18) are entitled to claim maintenance from their parents. Even if a child is living with a parent after separation, the other parent is still obligated to provide financial support.
  • Married Children with Disabilities: In some cases, adult children with disabilities or those unable to maintain themselves can also claim maintenance from their parents under Section 125 of the CrPC. However, this is typically the exception rather than the rule and requires a disability or dependency on the parent for livelihood.
  • Custodial Parent: The custodial parent (who has primary physical custody of the child) can claim maintenance on behalf of the child. In cases of divorce or separation, the custodial parent often claims maintenance for the child’s needs.

3. Process for Claiming Maintenance

The procedure to claim maintenance involves filing an application before the family court or the appropriate court under Section 125 of the CrPC. Here is a general outline of the process:

  • Filing a Petition: The custodial parent or guardian files a petition for maintenance before the family court. The petition can be filed by the parent or a guardian on behalf of the child.
  • Court Hearing: The court will then conduct hearings to examine the needs of the child, the financial capability of the parents, and any other relevant factors, such as the child’s standard of living and the parent’s capacity to contribute to the child’s welfare.
  • Evidence: Both parties may be asked to submit evidence, including income statements, tax returns, or any other documents that demonstrate the financial status of both parents and the needs of the child.
  • Court Decision: Based on the evidence, the court will decide the amount of maintenance the child should receive, considering factors like:
    • The needs of the child (education, healthcare, etc.)
    • The parent’s income and financial capacity
    • The child's lifestyle prior to separation
  • Enforcement: If the estranged parent does not comply with the court order for maintenance, the custodial parent can approach the court for enforcement. The court may take steps such as attachment of property or salary deductions from the non-compliant parent.

4. Example

Consider a case where a mother and father are divorced, and the child, who is 10 years old, resides with the mother. The mother can file a petition under Section 125 of the CrPC to claim maintenance for the child from the father. The father, who has a regular income, may be ordered to pay a monthly sum based on the child’s educational needs, healthcare expenses, and other daily living costs. If the father refuses to pay, the court may enforce the maintenance by garnishing his salary or seizing assets.

5. Conclusion

Yes, children have the legal right to claim maintenance from their estranged parents under Indian law, particularly through Section 125 of the CrPC and the Hindu Adoptions and Maintenance Act. These provisions ensure that both parents are obligated to financially support their minor children, even after separation or divorce. The custodial parent typically claims maintenance on behalf of the child, and the amount is determined based on the child’s needs and the parents' financial capacity. In cases where a parent fails to comply, the courts can enforce maintenance orders to safeguard the child’s welfare and best interests.

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