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Husband refuses to give child maintenance under Section 38 Special Marriage Act

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Maintenance

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Question: My husband refuses to give child maintenance under Section 38 Special Marriage Act. I filed divorce case in 2021 and didn’t demanded any alimony and child maintenance. But my husband is not agreeing and harassing me. I filed another case under section 38 for child maintenance only. Is he bound to pay and how will I be able to come out of this divorce?

Asked from: West Bengal

Your husband is legally bound to pay child support, regardless of whether you asked for it in your divorce case. The court can order him to pay child support under Section 38 of the Special Marriage Act. If your husband is refusing to pay, you can file a complaint with the court and ask for enforcement of the child support order.

If your husband is not agreeing to pay child maintenance, you may be able to file a case under Section 125 of the Code of Criminal Procedure in India, which allows a person to seek maintenance from their spouse if they are unable to support themselves. The court can order your husband to pay a certain amount of money to you for the maintenance and support of your child.

Section 125 of the Criminal Procedure Code (CrPC) lays down the provisions for maintenance of wife, children and parents. This section applies to all married individuals regardless of their religion, and the maintenance can be claimed by the wife, children or parents.

The court has the discretion to order the husband to pay maintenance to the wife and children, based on factors such as the husband’s income, the wife’s income, and the needs and standard of living of the wife and children.

Child maintenance under Section 38 of the Special Marriage Act

Section 38 of the Special Marriage Act pertains to the maintenance of wife and children. It states that any court hearing a case under this Act may make such provision for the maintenance of the wife and children as it deems just, having regard to the circumstances of the case. If you have filed a case for child maintenance under Section 38 of the Special Marriage Act, your husband is legally bound to pay the amount of maintenance determined by the court.

Child maintenance under Section 38 of the Special Marriage Act is similar to child maintenance under Section 125 of the Code of Criminal Procedure. Under this section, either parent may apply to the court for an order for maintenance for the child, and the court can order the father to pay a specific amount for the maintenance and education of the child.

The court will take into account various factors such as the income of the parents, the needs of the child, and the standard of living of the child before making a decision. It’s important to note that the father’s obligation to maintain a child continues until the child completes their education or reaches the age of majority (18 years old in India), whichever is later.

As for the divorce, the process and outcome will depend on the specific circumstances of your case, including any agreements you have reached with your husband and any issues that may need to be resolved by the court.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

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