Section 38 of SMA : Section 38: Custody Of Children

Explanation using Example

Imagine a couple, Ravi and Priya, who got married under the Special Marriage Act. Unfortunately, their marriage hits a rough patch, and Priya files for divorce under Chapter VI of the Act. They have a five-year-old daughter, Aisha. During the divorce proceedings, the district court, recognizing the importance of Aisha's welfare, issues an interim order that Aisha will stay with Priya, who is granted temporary custody. The court also orders Ravi to pay a monthly maintenance amount for Aisha's expenses and decides that Aisha will attend a nearby school, ensuring her education is not disrupted.

A few months after the divorce is finalized, Ravi's circumstances change, and he believes he can now provide a better environment for Aisha. He files a petition in the same district court to modify the custody arrangement. The court reviews the new circumstances, considers Aisha's wishes, and passes a revised order granting Ravi custody during weekends and vacations while maintaining the primary custody with Priya.

The court's actions demonstrate the application of Section 38 of the Special Marriage Act, where it has the authority to make, revoke, or vary orders regarding the custody, maintenance, and education of minor children during and after the divorce proceedings.