Q: Describe Section 26 of Hindu Marriage Act, 1955 ?

Ans: If a person seeking custody, is proposing to file or has filed a proceeding under the Hindu Marriage Act, 1955 concerning divorce and maintenance, he or she may, in the same proceedings under the Hindu Marriage Act, 1955, seek additional reliefs concerning custody and/or visitation along with other reliefs concerning prayers for divorce and maintenance. Even if a person seeking custody, is impleaded as a respondent in proceedings filed by the other spouse under the Hindu Marriage Act, he or she can file an ancillary application wherein reliefs concerning custody and/or visitation are sought. This remedy is provided for in section 26 (reproduced earlier) of the Hindu Marriage Act, 1955 whereby wide powers are conferred upon Courts to pass interim as well as permanent orders as deemed proper with respect to the custody of minor children while adjudicating proceedings under the Hindu Marriage Act, 1955. Section 26 creates two different situations;

i)  The first situation is where the Court is vested with powers to pass interim as well as permanent orders regarding custody, maintenance, and education of a child without filing of any application in this regard by any of the parties. This is the case when a proceeding is filed and pending under the Hindu Marriage Act, 1955.

ii ) The second situation is where the Court is vested with powers to pass orders with respect to custody, maintenance, and education of a child only if an application is filed by either of the parties in this regard. This covers a case when a decree is already passed in a proceeding under the Hindu Marriage Act, and after such passing of decree, orders are necessitated. In these cases, the Courts are even empowered to revoke, suspend, or vary any such orders and provisions previously made concerning custody, maintenance, and education of a child.