Section 38 of The Special Marriage Act, 1954
In any proceeding under Chapter V or Chapter VI the district court may, from time to time, pass such interim orders and make such provisions in the decree as it may seem to it to be 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, revoke, suspend or vary, 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. 1[Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.]
Summary
- This section gives the court the power to make decisions about the custody, financial maintenance, and education of minor children during and after matrimonial court cases.
- The court can pass temporary orders while the case is going on, and include final instructions in the main decree.
- Even after the final decree is passed, parents can apply to the court to make, change, suspend, or cancel these child custody and maintenance orders.
- The court must consider the wishes of the minor children whenever it is possible to do so.
Practical examples
FAQ
1. Who decides child custody and maintenance under Section 38 of the Special Marriage Act, 1954?
Under Section 38 of the Special Marriage Act, 1954, the district court has the power to pass orders and make provisions regarding the custody, maintenance, and education of minor children during and after matrimonial proceedings.
2. Are the wishes of the child considered in custody decisions under Section 38 of the Special Marriage Act, 1954?
Yes, under Section 38 of the Special Marriage Act, 1954, the court must make orders regarding minor children consistently with their wishes wherever possible.
3. Can a child custody or maintenance order be changed after the divorce is finalized under Section 38 of the Special Marriage Act, 1954?
Yes, under Section 38 of the Special Marriage Act, 1954, the district court can make, revoke, suspend, or vary orders regarding the custody, maintenance, and education of minor children even after the final decree, upon an application by petition.
4. What is the timeline for deciding a child maintenance application during a pending trial under Section 38 of the Special Marriage Act, 1954?
Under Section 38 of the Special Marriage Act, 1954, an application for the maintenance and education of minor children during the proceeding must, as far as possible, be disposed of within sixty days from the date the notice is served on the respondent.
Test yourself
Q1.Under Section 38 of the Special Marriage Act, 1954, whose wishes must the court consider, if possible, when making orders about custody and education?
Q2.What is the time limit, as far as possible, for a court to decide an application for the maintenance and education of minor children while a matrimonial trial is pending under Section 38 of the Special Marriage Act, 1954?
Q3.Under Section 38 of the Special Marriage Act, 1954, can the court make or modify orders regarding minor children after a final divorce decree has been passed?
Q4.Under Section 38 of the Special Marriage Act, 1954, which three aspects of a minor child's life can the court make orders about?