DIVORCE AND MAINTENANCE

Published by The Daily Star on 15th December, 2012 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Query
I want to know about the maintenance procedure after iddat period of a divorced woman. If anyone files a suit after three months of divorce usually this three month is iddat period during which a muslim husband is obliged to pay maintenance. my query is during the transitional period meaning after iddat period to till the court made decree for maintenance, can any women entitle to maintenance from her husband.? what are the legal supports in this regard?

Mayesha
Chittagong

Response
Thanks for your query. From the given queries it appears that you are desirous to know about the laws regarding maintenance. It is noteworthy that in Bangladesh family matters are governed by the personal laws of the religious community to which an individual belongs to. Accordingly, the issues like Marriage, Divorce and Maintenance of Muslims are dealt by the Islamic Law along with pertinent statutory laws of the land.

As far as your query regarding right to get maintenance is concerned, the husband is bound to provide maintenance during the validity of the marriage. On the other hand the husband would not be so bound if the wife has left him without any reasonable excuse like cruelty. But, it is worth mentioning that maintenance is available even after divorce following the period of Iddat. In addition, the failure by the husband to provide maintenance may also be one of the valid grounds for obtaining a decree for dissolution of marriage under the Dissolution of Muslim Marriage Act 1939.

If the husband denies providing maintenance, the wife may have the following options: Firstly, the wife should communicate with her husband to settle the matter amicably. The wife may also decide to take the help of the elder members of both the families to settle the matter. After reasonable efforts, if the wife has failed to settle the above mentioned process, then she may serve him a Legal Notice before resorting to litigation. Filing a case in a continuing marital relationship may not always be the best thing to do. If no satisfactory response is made to the Legal Notice, the wife may only then decide to recourse to the Family Court by way of filing a suit for maintenance. Maintenance is within the jurisdiction of the Family Court as per Section 5 of the Family Courts Ordinance 1985.

Besides, Section 9 of the Muslim Family Law Ordinance 1961 contains provision for Maintenance. Accordingly, if the husband fails to provide maintenance, in addition to seeking any other legal remedy, the wife may apply to the Chairman of Union Parishad/Paurashava or Mayor of the City Corporation, as the case may be, who will constitute an Arbitration Council to determine the matter and specifying the amount to be paid as maintenance. The amount has to be equitable and adequate. The financial position of the husband along with the standard of living to which the wife is accustomed shall also be considered.

However if the marriage ends up in Divorce then the husband is bound to provide maintenance to the wife. Under Muslim family laws in Bangladesh, women have no right to maintenance beyond 90 days after notice of divorce (or birth of a child, if the woman is pregnant at the time of divorce). A Muslim woman in the event of divorce is entitled to maintenance by the husband till the expiry of the period of Iddat and not further. However the Court has ruled (in accordance with classical Hanafi law) that a wife is not entitled to arrears of maintenance. Therefore, the former wife may not claim past maintenance unless the parties have a previously established agreement.

I hope that the above shall clarify your query. However, even after giving reasonable efforts, the things do not change or the problem remains, you should go for the aforesaid legal remedies.

For detailed query contact: omar@legalcounselbd.com.