Matrimonial breakdown often raises questions about financial support, the care of children and safety at home. A maintenance and child custody lawyer in Panchkula handles these matters under several statutes, each with its own forum and procedure. The advocates at Aggarwal Associates, 536-C, Sector 6, MDC, Panchkula, appear in these proceedings before the Punjab & Haryana High Court, the Family Court and Magistrates at the District Courts, Sector 1, Panchkula, and the District Courts at Sector 43, Chandigarh.
Maintenance
Section 144 BNSS (formerly Section 125 CrPC)
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) allows a Magistrate to order monthly maintenance for a wife who is unable to maintain herself, for legitimate and illegitimate minor children, for adult children unable to maintain themselves because of a physical or mental abnormality or injury, and for parents. It applies regardless of religion. The Magistrate may also order interim maintenance during the proceedings. The statute disqualifies a wife who is living in adultery, who refuses without sufficient reason to live with her husband, or who is living separately by mutual consent.
Hindu Marriage Act, 1955
Section 24 HMA permits interim maintenance and litigation expenses to the spouse who has no independent income sufficient for support, while a matrimonial petition is pending; either spouse may apply. Section 25 allows permanent alimony or maintenance at the time of the decree or later. The Hindu Adoptions and Maintenance Act, 1956 provides a separate civil remedy for a Hindu wife.
Affidavit of assets and liabilities
In Rajnesh v. Neha (2020), the Supreme Court issued directions to reduce inconsistent and overlapping maintenance orders. The court directed that both parties file an affidavit of assets and liabilities disclosing income, expenditure, assets and dependants in maintenance cases, and it dealt with the date from which maintenance is payable and the adjustment of amounts awarded in different proceedings. Accordingly, an accurate affidavit supported by documents is a standard part of a maintenance file.
Child custody and guardianship
There is no single custody statute. The principal provisions are:
- Guardians and Wards Act, 1890: a petition for appointment or declaration of a guardian, or for custody, is made to the court having jurisdiction where the minor ordinarily resides. Section 17 requires the court to consider the welfare of the minor.
- Hindu Minority and Guardianship Act, 1956: Section 6 names the natural guardians of a Hindu minor, with the custody of a child under five years ordinarily being with the mother. The Supreme Court in Githa Hariharan v. Reserve Bank of India (1999) read the Act so that the mother's role as natural guardian is not confined to the father's absence.
- Section 26 HMA: in any matrimonial proceeding the court may pass interim and final orders on the custody, maintenance and education of minor children.
Courts decide custody on the welfare of the child, which includes the child's age, wishes where the child is old enough to express them, stability, education and health. Orders may be varied when circumstances change. Visitation or interim access is commonly sought while the main case is pending. These matters are often connected with a divorce case or a mutual consent petition, where custody terms are recorded in the settlement.
Domestic violence
The Protection of Women from Domestic Violence Act, 2005 provides civil remedies for women in a domestic relationship who face physical, sexual, verbal, emotional or economic abuse. An application under Section 12 is made to the Magistrate, and a Protection Officer may help with a domestic incident report. The Magistrate may grant:
- protection orders (Section 18) restraining the respondent from committing violence or contacting the aggrieved person;
- residence orders (Section 19) concerning the shared household;
- monetary relief (Section 20) for losses and expenses, including maintenance;
- custody orders (Section 21) for children and compensation (Section 22); and
- interim and ex parte orders (Section 23) in appropriate cases.
These proceedings can run alongside a divorce or a maintenance application; the reliefs overlap, which is why disclosure of other pending cases is required.
Cruelty cases under Sections 85 and 86 BNS
Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS) punishes a husband or his relatives who subject a married woman to cruelty, and Section 86 defines cruelty. These provisions replaced Section 498A of the Indian Penal Code from 1 July 2024. Allegations of dowry-related harassment may also invoke the Dowry Prohibition Act, 1961. The offence is cognizable and non-bailable. In Arnesh Kumar v. State of Bihar (2014), the Supreme Court directed police to apply the checklist in the arrest provisions and to record reasons before arrest in such cases. Accused persons commonly seek anticipatory bail, and complainants and accused alike engage with the criminal court process; see our criminal lawyer page for the procedure.
Quashing before the High Court
Where the parties settle, or where the complaint is said to disclose no offence, a petition may be filed before the Punjab & Haryana High Court under Section 528 BNSS (formerly Section 482 CrPC) to quash the FIR or proceedings. In Gian Singh v. State of Punjab (2012), the Supreme Court recognised that the High Court's inherent power can be used to quash non-compoundable offences arising out of matrimonial or similar private disputes where the dispute has been settled and continuing the case would serve no purpose, taking into account the nature of the offence. Offences of a serious nature are treated differently. Details of the High Court practice are on the High Court lawyer in Chandigarh page.
Documents usually needed
- Marriage proof and details of children, with birth certificates;
- Income, employment and bank records of both spouses, and the affidavit of assets and liabilities;
- Medical records, photographs, messages and police complaints for domestic violence;
- Copies of orders or FIRs in any other pending case.
Frequently asked questions
Where is a maintenance petition filed?
Under BNSS, before the Magistrate of the district where the respondent resides, where the wife resides, or where the respondent last lived with her. Under the HMA, it is made in the matrimonial court.
Can maintenance be claimed in more than one proceeding?
Claims may be made under different statutes, but the Supreme Court in Rajnesh v. Neha directed that amounts awarded in earlier proceedings be adjusted and that earlier orders be disclosed.
Who gets custody of a young child?
The welfare of the child decides. Section 6 HMGA ordinarily places custody of a child below five with the mother, but each court examines the circumstances.
Is a domestic violence application the same as a criminal complaint?
No. It is a civil remedy before a Magistrate under the 2005 Act. A criminal case under Section 85 BNS is separate and is investigated by the police.
Can a cruelty case be closed if the spouses settle?
It may be compounded with the court's permission, or quashed by the High Court under Section 528 BNSS, subject to the court's satisfaction on the facts.
Does a pending divorce stop a maintenance case?
No. Both can proceed at once, which is why interim maintenance under Section 24 HMA and applications under Section 144 BNSS are often moved while a divorce is pending.
Those seeking a maintenance and child custody lawyer in Panchkula can find office details on the contact page.
This page is general information, not legal advice. Laws and procedures change; the position in your matter depends on its facts.