Divorce doesn’t just end with the man and wife being separated. When a child is involved, both the parents ideally need to take care of his or her needs–emotional to financial–even after being separated. While both parents are responsible for child support, in cases where the child stays with the mother, she can claim maintenance for the child from the father, which the law makes provision for.
“Maintenance can be claimed till the child is dependent on the parents, that is, till the time he or she is studying and is not qualified to earn, as long as you present the required proof of the situation before the court. But that’s possible only up to a particular age, say till 24-25. But suppose the child is already a graduate and claims he or she cannot work, that won’t help the case in the court,” Rahul Aggarwal, a divorce lawyer from Delhi NCR, told Express Parenting.
Is this valid even when the spouse with whom the child is living has a source of income? Take the judgement in Sukhjinder Singh Saini vs Harvinder Kaur in 2017, for instance, in which the Delhi High Court observed, “That the mere fact that the spouse with whom the child is living is having a source of income, even if sufficient, would in no way absolve the other spouse of his obligation to make his contribution towards the maintenance and welfare of the child,” as quoted by vakilno1.com.
There have been cases where fathers asked the court to either reduce the child maintenance amount or failed to pay completely. What does one do in such situations? According to Aggarwal, one can move the court under the following laws:
1. Section 125, Criminal Procedure Code, requires the father to provide for maintenance of the wife, children and parents. “If any person having sufficient means neglects or refuses to maintain itself…A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child…,” reads the law. And the maintenance amount the father should pay would be “at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct”, as per Section 125 of CrPC.
2. Under section 20 of Hindu Adoption and Maintenance Act, 1956, which deals with maintenance of children and aged parents. “Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents…A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor,” the law reads.
One can file the maintenance application under both the laws, not just in the case of divorce but even in case of judicial separation, Aggarwal suggested.