The High Court has held in a judgment that a minor child’s right to maintenance does not depend on whether there is a marital dispute between the parents.
The judgment states that, even if there is a dispute over whether a divorce is valid or has taken legal effect, the legal responsibility for maintaining a minor child rests with the father.
The High Court expressed this view in a civil revision case. The judgment was delivered on 16 June by a single bench of Justice Abdur Rahman. The lawyer concerned said that the 22-page full text of the judgment was received yesterday, Thursday.
According to the case records, the couple were married on 29 September 2011. Later, after marital relations deteriorated, the husband declared that he had divorced his wife.
Subsequently, the wife filed a case seeking payment of her denmohor (dower) and maintenance for their minor daughter. However, the husband failed to prove the divorce before the Family Court. The subordinate court then issued a decree in favour of the wife and child, awarding the unpaid dower and maintenance.
According to the lawyer concerned, the husband later filed a fresh declaratory suit claiming that the divorce had taken legal effect. On the basis of that suit, he sought a stay of the execution of the maintenance decree. After the subordinate court rejected his application, the husband filed a revision petition before the High Court in 2023.
After a preliminary hearing, the High Court issued a Rule. Following the final hearing, the Court discharged (dismissed) the Rule and delivered its judgment on 16 June, thereby upholding the decision of the subordinate court.
In its judgment, the High Court directed the husband to pay, in accordance with the law, the wife’s outstanding dower and all arrears of maintenance due to the minor child.
After reviewing the records and other materials, the Court observed in its judgment that the applicant (the husband) had failed to fulfil the obligations imposed upon him by the decree. He had not paid the full amount of the dower awarded under the decree.
Likewise, the applicant had failed to discharge his continuing legal obligation to provide maintenance for his minor child. The Court stated that it hardly needed to be reiterated that a minor child’s right to maintenance is an independent statutory and legal right.
That right does not arise from, nor is it dependent upon, the existence or absence of a marital dispute between the parents. Even if there is a dispute over whether a divorce is valid or has taken legal effect, the legal responsibility for maintaining a minor child rests with the father.
Therefore, the applicant (the husband) cannot legally suspend payment of maintenance to his minor child on the pretext that issues relating to the divorce remain unresolved.
Failure to Prove the Divorce—What Then?
The judgment states that the applicant (the husband) repeatedly claimed that he had already validly divorced his wife. However, that claim remained entirely unproven.
The applicant failed to establish the alleged divorce before the trial court. Nor did the appellate court make any finding or observation recognising the alleged divorce.
Likewise, the High Court Division has not issued any declaration in favour of the applicant holding that the alleged divorce was legally valid under the law. Since the claim has received no judicial recognition, the applicant’s assertion has no legal effect.
The judgment further states that the alleged divorce was either not proved in accordance with the law or was otherwise legally ineffective. Consequently, it cannot be regarded as having dissolved the marriage. Similarly, a divorce that is legally ineffective does not create any legal bar to pronouncing a divorce subsequently or afresh in accordance with the procedure prescribed by law.
Mohammad Shahidul Islam appeared before the Court on behalf of the husband. Ishrat Hasan represented the wife, assisted by advocates Tanjila Rahman and Ifat Hasan Shammi.
Advocate Ishrat Hasan told Prothom Alo that the judgment further reinforces three legal principles: first, that the legal validity of a divorce must be established in accordance with the law; second, that a minor child’s right to maintenance is an independent legal right; and third, that the execution of a final decree cannot be obstructed by filing a fresh lawsuit.
She said that a husband cannot evade his obligation to maintain his wife or minor child by relying on a purported divorce that has not been proved in accordance with the law. In her view, the High Court’s judgment will serve as an important precedent for the protection of the rights of women and children.