Report No. 98

3.6. Amendment needed in section 26, Hindu Marriage Act.-

On considering the two questions that have created trouble as above,1 it would appear that there is need to settle the legal position on both of them which are of a recurring nature. As to the tenor of the amendment required, the better course would be to give a wide scope to the power of the Court, under section 26 of the Hindu Marriage Act2 so as to make it clear that the power thereunder can be exercised with or without an application. The object could be achieved by inserting, in section 26 of the Hindu Marriage Act,3 after the words "from time to time", the words "and whether or not an application for the purpose is made on behalf of the minor children".

Such an amendment should suffice to make it clear that-(i) interim orders regarding children, (ii) as well as permanent orders regarding them, can be made without a formal application. Of course, the court will pass such orders only where the existence of children and the need to pass orders regarding their custody, education and maintenance are known to exist. That need not be specifically emphasised while amending the section. In any case, what the section envisages is a power, and not a duty. Incidentally, the present structure of section 26 imposes some strain on the reader. Opportunity should, therefore, also be taken of breaking up the section into clauses so as to facilitate reading.

1. Paras. 3.1 and 3.5, supra.

2. Para. 2.3, supra.

3. Para. 2.6, supra.