Father cannot evade child maintenance citing divorce dispute: High Court

Maintenance of a minor child cannot be withheld due to a dispute over divorce between parents, the High Court has ruled, declaring that a minor's right to maintenance is an independent and distinct legal entitlement that is not contingent upon the marital dispute of the parents.

The ruling was delivered recently by a single High Court bench of Justice Abdur Rahman. A certified copy of the judgment was released on Thursday (July 16).

In its verdict, the court held that an unproven or legally ineffective divorce cannot be used as a ground to halt the execution of decrees awarding maintenance or dower in favour of a wife and her minor child. Unless a competent court stays such a decree, it remains enforceable and the Family Court is legally bound to execute it.

According to the case records, the couple married in 2011. After the wife filed a case seeking dower and maintenance for herself and their minor daughter, the husband claimed he had previously divorced her. However, he failed to establish the validity of the divorce in accordance with the law before the Family Court. The court subsequently passed a decree in favour of the wife and child.

The husband later filed a separate declaratory suit, claiming the divorce had been effective, and sought suspension of the execution of the earlier decree. After the lower court rejected his application, he challenged the decision before the High Court.

The High Court ruled that merely filing a fresh suit cannot suspend the execution of a final decree already passed by a competent court. It observed that a divorce not proven or recognised under the law has no legal effect, does not dissolve the marital relationship, and cannot obstruct the enforcement of maintenance or dower decrees.

The court further observed that the Family Court has exclusive jurisdiction over disputes relating to marriage, divorce, dower, maintenance and restitution of conjugal rights. It also emphasised that a father cannot avoid his legal obligation to maintain his minor child by citing a dispute over divorce. The Family Court's role is limited to enforcing existing decrees and does not extend to determining the validity of a divorce during execution proceedings.

The judgment also stated that if an earlier claim of divorce is found to be legally ineffective and the husband still wishes to dissolve the marriage, he may initiate a fresh divorce in accordance with the law. However, doing so will not absolve him of liabilities arising from previously accrued maintenance or dower.

Advocate Md Shahidul Islam represented the husband, while Advocate Ishrat Hasan appeared for the wife.

Following the verdict, Advocate Ishrat Hasan described the judgment as a significant precedent in family law, saying it makes clear that an unproven divorce cannot be used to evade the legal obligation to provide maintenance for a wife or a minor child.