Child maintenance not contingent on parents' divorce dispute: HC

The High Court has ruled that the execution of decrees for maintenance and dower (denmohor) in favour of a wife and her minor child cannot be stayed on the pretext of a divorce that has not been legally proven or deemed effective.

The court observed that a minor child's right to maintenance is an independent and distinct legal right and cannot, under any circumstances, be made contingent on disputes between parents over divorce.

A single High Court bench of Justice Abdur Rahman delivered the verdict in a recent case. The wife's lawyer briefed journalists about the verdict today (16 July).

Supreme Court lawyer Md Shahidul Islam represented the husband, while Supreme Court lawyer Ishrat Hasan represented the wife.

Ishrat Hasan told journalists, "This verdict is very important in the field of family law. The High Court has made it clear that maintenance for a wife or minor child cannot be avoided on the excuse of a divorce that has not been proved in accordance with the law."

"At the same time, the court said the maintenance of a minor child is an independent legal right and that the Family Court has exclusive jurisdiction to settle disputes relating to marriage, divorce and maintenance. In my view, this verdict will remain an important precedent in protecting the rights of women and children and ensuring the effectiveness of final court decrees," she added.

According to case documents, the couple got married in 2011. Later, a case was filed on behalf of the wife and their minor daughter seeking dower and maintenance.

The husband claimed that he had already divorced his wife. However, he failed to prove the divorce before the Family Court in accordance with the law. As a result, the court issued a decree in favour of the wife and child for dower and maintenance.

The husband later filed a fresh declaratory suit claiming that the divorce had taken effect. Citing that case, he sought a stay on the execution of the maintenance decree. The lower court rejected the plea, after which the matter went to the High Court.

In its verdict, the High Court said, "The execution of a final decree already passed cannot be stopped merely because a new case has been filed. Unless a competent court stays the decree, it will remain effective and the execution court is bound to enforce it."

The court further said, "A divorce that has not been proved or made effective in accordance with the law has no legal effect. Such a divorce does not dissolve the marital relationship and cannot create any legal bar to the execution of a decree for maintenance or dower."

The High Court also clarified that the Family Court has exclusive jurisdiction to settle disputes relating to marriage, divorce, dower, maintenance and marital rights.

Regarding the rights of minor children, the court said, "The right of a minor child to maintenance is an independent and separate legal right. Even if there is a dispute between the parents over divorce, the child's maintenance cannot be stopped. A father cannot avoid his responsibility to maintain his child merely by citing a divorce-related dispute."

The verdict also stated that the duty of an execution court is only to enforce an existing decree. It cannot newly decide whether a divorce is valid or whether the marital relationship still exists. It also has no jurisdiction to settle any fresh dispute beyond the decree.

The court further observed that if a previously claimed divorce is found to be legally ineffective and the husband genuinely wants to end the marital relationship, he has the option to issue a fresh divorce in accordance with the law. However, that possibility does not free him from liabilities for dower and maintenance created under the earlier decree.

In its final order, the High Court discharged the rule and upheld the lower court's order. It also directed the husband to pay the arrears of dower and all outstanding maintenance for the wife and minor child.

Lawyers said the verdict has strengthened three important principles: a divorce must be legally proved to have legal effect; maintenance of a minor child is an independent legal right; and the execution of a final decree cannot be delayed or obstructed by filing a fresh case.

They said the verdict would be considered an important precedent in resolving family disputes and protecting the legal rights of women and children.