Divorced Wife Can't Seek Maintenance Hike After Ex-Husband's Death: Bombay High Court

The Bombay High Court recently held that while a divorced woman can continue to recover maintenance awarded under a decree from the estate of her deceased former husband, she cannot seek enhancement of that maintenance after his death.

In a judgment dealing with the scope of Section 37 of the Special Marriage Act, a division bench of Justice Bharati Dangre and Justice Manjusha Deshpande upheld a family court order that permitted recovery of maintenance arrears from a deceased husband's estate but rejected a plea for enhancement of the monthly maintenance amount.

The case arose from a long-running matrimonial dispute dating back to the 1970s. The appellant-wife and her husband had married under the Special Marriage Act in January 1974 and had been living separately since 1977. The husband filed for divorce in 1980, while the wife initiated maintenance proceedings in 1983. In 1999, a family court dissolved the marriage and directed the husband to pay Rs 6,000 per month as maintenance.

After the husband's death in 2012, the wife approached the family court seeking recovery of maintenance arrears and enhancement of the maintenance amount. While the family court allowed recovery from the deceased's estate, it declined enhancement, leading to the present appeal.

Can maintenance be recovered from a deceased husband's estate?

Answering the first question, the high court held that a maintenance decree does not perish with the husband's death. Referring to Section 37(1) of the Special Marriage Act and Supreme Court precedents, including Mrs. Aruna Basu Mullick v. Mrs. Dorothea Mitra, (1983), the bench said the legislative intent was to secure maintenance and support to a wife during her lifetime.

Court observed that if a husband leaves behind an estate, there is "no justification" for treating the maintenance decree as extinguished merely because he has died. It held that both accrued arrears and future monthly payments under an existing decree can be recovered from the estate inherited by the legal heirs.

The bench noted that the law is settled on this aspect and that heirs cannot inherit the property free of obligations attached to it. The maintenance decree, it said, remains enforceable against the estate of the deceased husband.

Can a divorced wife seek enhancement of maintenance after the husband's death?

On the second and more significant issue, the high court answered in the negative.

The bench examined Section 37(2), which permits variation, modification or rescission of maintenance orders upon a change in the circumstances of either party. However, it held that the provision contemplates a situation where both parties are alive and their circumstances can be assessed by the court.

Court observed that the right to claim maintenance and the corresponding obligation to pay it are personal in nature. While the husband's estate may remain liable for an already quantified and crystallised maintenance obligation, it cannot be subjected to a fresh adjudication creating a new or increased liability after his death.

"A personal obligation extinguishes upon the death of the obligor," the bench said, adding that the wife's right to seek enhancement is a personal right dependent on the changing circumstances of living spouses.

Court also warned that permitting enhancement claims against a deceased husband's estate would create perpetual uncertainty in succession matters. Legal heirs, it said, would never be able to ascertain their final share in the estate if enhancement applications could be repeatedly filed on grounds such as inflation or changing needs of the former spouse.

Allowing such claims, the bench observed, would "open the floodgates to litigation" and undermine the principle of finality in succession law.

"Allowing such claims for enhancement would open the floodgates to litigation, as it would allow the ex-wives to repeatedly file applications for enhancement against the heirs of deceased ex-husband, the variation being sought at the drop of the hat, on the pretext that it has resulted into the change in circumstances in her life or on the ground that the estate of the deceased in the hands of the legal heirs has flourished," court said.

Rejecting the appellant's arguments, the high court ultimately held that a divorced wife cannot invoke Section 37(2) of the Special Marriage Act to seek enhancement of maintenance after the death of her former husband. The appeal was accordingly dismissed.

Case Title: Warsha @ Eleekusumchand Javeri v. Rajan Suren Goregaonkar & Ors.

Judgment Date: May 6, 2026

Bench: Justice Bharati Dangre and Justice Manjusha Deshpande