Maintenance and child custody in Delhi — how courts actually decide

Published 14 August 2026 · Lawdship

Maintenance and custody are the two questions that occupy Delhi's Family Courts more than any other, and both are decided on standards that are less rigid than most people expect.

Three routes to maintenance, and they can overlap

• Under the criminal procedure law — Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced Section 125 CrPC. Available to a wife, minor children and dependent parents. Proceedings are summary and comparatively fast.
• Under personal law — Sections 24 and 25 of the Hindu Marriage Act provide interim maintenance during proceedings and permanent alimony on decree, with parallel provisions in other personal laws.
• Under the Domestic Violence Act, 2005 — monetary relief, which can include maintenance, plus residence and protection orders.

These are not mutually exclusive. A claimant can pursue more than one, though courts adjust amounts so there is no double recovery. The Supreme Court has laid down that an applicant must disclose maintenance already received or claimed in other proceedings, precisely to allow that adjustment.

What courts look at

• Income and earning capacity of both parties, not just declared income
• The standard of living during the marriage
• Reasonable needs of the claimant and the children
• Liabilities of the paying party, including genuine loan obligations
• Whether the claimant has independent income

Two points that are widely misunderstood:

Earning does not defeat a claim. A working wife can still claim maintenance. The comparison is between the two parties' circumstances and the marital standard of living, not a test of whether the claimant can survive.

Declared income is not the ceiling. Where a paying party understates income, courts draw inferences from lifestyle, property, travel and business turnover. Deliberately quitting a job to avoid maintenance is met with an assessment based on earning capacity rather than actual earnings.

Custody is decided on one test

The welfare of the child. Not the rights of either parent, not who filed first, and not who has more money.

What weighs:

• Stability and continuity — schooling, home, routine
• The child's own preference, where they are old enough to form an intelligent view
• Each parent's availability and circumstances
• The existing primary caregiving arrangement
• Conduct, where it actually bears on parenting rather than on the marriage

There is a working presumption in favour of the mother for children of tender years, but it is a presumption and not a rule, and it yields to welfare on the facts.

Custody and access are different things. A parent without custody almost always retains a right of access. Denial of access to the non-custodial parent is viewed poorly and is itself a ground for court intervention.

What actually helps your case

Income proof for both sides. Salary slips, tax returns, bank statements, property records. Maintenance is quantified on evidence, and vague allegations of hidden wealth carry little weight without something behind them.

For custody, the record of who does the parenting. School correspondence, medical appointments, parent-teacher interactions, the daily logistics. Courts respond to demonstrated involvement far more than to assertions of affection.

Enforcement

An order that is not complied with is enforced through execution proceedings, which can include attachment of salary and property. Under the criminal procedure route, persistent non-payment can lead to coercive orders including detention.

This matters because obtaining an order is often the easier half. Enforcing it is a separate proceeding and has to be pursued actively.

Where these are heard

Family Courts at Saket, Dwarka, Karkardooma, Rohini, Tis Hazari and Patiala House, according to territorial jurisdiction.

General information, not legal advice. Amounts and outcomes turn entirely on the facts and the evidence available.