Custody of Children under the Special Marriage Act

When a marriage breaks down, the children's future must be settled. Section 38 of the Special Marriage Act empowers the court, in any matrimonial proceeding, to make interim and final orders on the custody, maintenance and education of minor children, consistently with their wishes where possible. The guiding principle, developed by the Supreme Court across all personal laws, is that the welfare of the child is paramount. This note covers section 38, the welfare principle and the leading cases.

1. The Provision

Figure 1: Section 38

• Text, s.38. In any proceeding under Chapter V or VI, the district court may, from time to time, pass such interim orders and make such provisions in the decree as it considers just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible.
• Sixty days. A proviso inserted in 2001 requires applications for the maintenance and education of minor children during the proceeding to be disposed of, as far as possible, within sixty days of service of notice on the respondent.
• Continuing jurisdiction. The court may revise custody orders from time to time as the child's needs and circumstances change.
• Appeals. Final orders under s.38 are appealable; interim orders are not (s.39(2); Topic 24)

2. The Welfare Principle

Figure 2: Factors courts weigh

• Paramount consideration. The welfare of the child overrides the rights or claims of either parent. The Guardians and Wards Act, 1890 applies the same test.
• No statutory presumption. The Act does not contain the Hindu law rule that custody of a child under five ordinarily lies with the mother; the court decides on the child's welfare in each case, though the needs of very young children weigh heavily.
• Shared contact. Even where one parent has custody, the other should ordinarily have visitation, unless that would harm the child.

3. Leading Cases

Figure 3: The welfare principle in the Supreme Court

• Rosy Jacob v Jacob A. Chakramakkal (1973). The Court held that the welfare of the children is the paramount consideration; the father's rights as natural guardian are subordinate to it.
• Nil Ratan Kundu v Abhijit Kundu (2008). In custody disputes, the court must consider the child's comfort, contentment, health, education, intellectual development and favourable surroundings, and the child's preference if old enough.
• Gaurav Nagpal v Sumedha Nagpal (2009). Welfare includes moral and ethical well-being, not just material comfort; a parent's greater wealth does not decide custody.
• Yashita Sahu v State of Rajasthan (2020). The child has a right to the love and company of both parents; the court should provide visitation and contact, including by video call, to the non-custodial parent.

4. Frequently Asked Questions

What is the main consideration in deciding custody under the Special Marriage Act?

The welfare of the child, which is the paramount consideration. The court also considers the child's wishes wherever possible under s.38, together with factors such as age, health, education, stability and each parent's capacity to care for the child.

Is there a presumption that a young child stays with the mother?

Not under the Special Marriage Act. The presumption that custody of a child under five ordinarily belongs to the mother is found in Hindu law. Under this Act, custody depends on the child's welfare in each case.

5. Related Topics

• Topic 22: Alimony and Maintenance. Maintenance of the wife.
• Topic 14: Legitimacy of Children, Section 26. Status of children of void marriages.