Report No. 257

g. Section 19G: Child support.

Personal laws in India deal with the concept and idea of child support to some extent through the concept of custody of children in codified Hindu Law167 and Parsi Law,168 and the Indian Divorce Act.169 However, these provisions do not list the reasons for which such child support is required. The Hindu Adoptions and Maintenance Act, 1956 has a provision for maintenance of children,170 but merely casts an obligation of maintenance on the father, Krishnakumari v. Varalakshmi AIR 1976 AP 365 as well as the mother.172

Maintenance here means the provision for food, clothing, residence, education and medical attendance and treatment.173 This definition of maintenance is generally worded so as to be applicable to all persons entitled to claim maintenance under the various provisions of the 1956 Act.174

The Law Commission believes that child support in custody matters entails much more than the concept of maintenance as captured by the 1956 Act. Accordingly, it empowers the court to specifically pass orders for the maintenance of children. It elaborates that such an order will involve fixing an amount that is "reasonable or necessary" to meet the living expenses of the child, including food, clothing, shelter, health care, and education.

167 Hindu Marriage Act, No. 25 of 1955, § 26.

168 Parsi Marriage and Divorce Act, No. 3 of 1936, § 49.

169 Indian Divorce Act, No. 4 of 1869, § 41 and § 43.

170 Hindu Adoptions and Maintenance Act, No. 78 of 1956, § 20.

172 Mulla Hindu Law, ed. Satyajeet Desai, 21st edn. 2010, p. 1378.

173 Hindu Adoptions and Maintenance Act, No. 78 of 1956, § 3(b).

174 Mulla Hindu Law, ed. Satyajeet Desai, 21st edn. 2010, p. 1294.

However, terms such as "reasonable" and "necessary" may be construed as vague, and can be abused or wrongly interpreted when fixing amounts for child support. The Commission, therefore, qualifies these terms by recommending certain factors that courts must keep in mind when calculating child support.

These include the financial resources of the parents, the standard of living of the child, Sayali Pathak v. Vasant Pathak 110 (2004) DLT 637, the physical and emotional condition of the child, his or her educational and healthcare needs or any other factor that the court deems fit for the child's welfare.

Following the general principle of majority being attained at the age of 18, the Commission recommends that child support must continue till such age of majority. There are cases where the court has advised an increase in the age of maintenance from eighteen to twenty-one and asked the Commission for its advice.176 The Commission is of the view that the court should have the power to continue child support even after a child attains the age of 18, and wherever appropriate, this period may extend till the child reaches the age of 25, and not thereafter.

176 The Times of India, Raise Age for Child Maintenance to 21: Court, August 12 (2011), available at http://timesofindia.indiatimes.com/city/delhi/Raise-age-for-child-maintenance-to-21-Court/articleshow/9573821.cms (Last visited on April 23, 2015).

The Commission also recognises special treatment for children with mental or physical disability.177 The Hindu Adoption and Maintenance Act, 1956, applies to persons with disability, but the benefits cease at the age of eighteen. The Commission recommends correcting the provision of law to provide child support beyond such time as the child reaches 25 years of age, in case of a child with mental or physical disability.

177 Juvenile Justice (Care and Protection of Children) Act, No. 56 of 2000, § 2(d).

The Commission recommends that courts should have the power to order for the liability of the estate of a parent who dies during or after an order for child support is passed, to ensure that the welfare of the child remains the key, even after the lifetime of the parent.