Can A Divorced Wife Claim Maintenance Or Seek Its Enhancement From Ex-Husband's Estate After His Death? Bombay High Court Answers

In a significant ruling, the Bombay High Court held that a divorced woman though can continue to seek maintenance based on a decree, from the husband's estate or properties even after his death, however, she cannot seek enhancement of the same maintenance from the said estate after his death. [Citation: 2026 LiveLaw (Bom) 284]

A division bench of Justice Bharati Dangre and Justice Manjusha Deshpande decided the plea filed by a widow, who sought continuation of maintenance from the husband's estate, after he died. She had also sought enhancement of the maintenance relying on a 1999 order of a Family Court in Bandra, which directed the husband to pay a monthly amount of Rs 6,000 to her.

The husband died in 2012 and since the couple had no kids, his property went to his siblings, who opposed the plea moved by the widow.

"We have no hesitancy in holding that the maintenance decree does not abate or extinguish on the husband's death and the estate or legal heirs remain liable for pending arrears, depending on the decree terms for ongoing payments. Such a decree is executable against the husband's estate in the hands of the heirs, whether the maintenance was charged on the estate or not. A finalised decree of maintenance is treated like any civil decree which is enforceable post death and the death of the husband would not at all affect a decree of maintenance whether or not, it has created a charge on the husband's estate and notwithstanding such death, the estate can be proceeded for realisation of the maintenance dues for post death period," the bench held in the judgment pronounced on June 15.

In short, it is ruled that maintenance decree bind the estate/heirs for arrears satisfaction, unlike pending matrimonial proceedings that abate on death of either spouse. 

"The underlying legislative intent under such provision can be clearly discerned as the Parliament intended to confer protection on the wife who is entitled for the claim of maintenance during her life time from the husband and if the husband has left behind his estate while he demised, there can be no justification to the view that the decree is wiped out and the heirs would succeed to the property without this liability. In wake of the specific legislative intent, the maintenance or its arrears are recoverable from the estate of the deceased husband, even after his death, as the whole purpose and intent of the legislature was to ensure maintenance and support to the wife during her life time," the judges opined. 

The right of the wife to be entitled for permanent alimony and maintenance under the order of the Court, if necessary, by creating a charge on his property, shall however persist during her life time, and it is a right personal to her and not permitted to be alienated. Her claim of maintenance is a personal claim and her entitlement holds good during her life time. She cannot transfer the said right on her death and her right to receive maintenance extinguishes with her death, the bench explained. 

The judges further stated that the right of the wife to receive alimony/maintenance is a right in personem, that is, it is a "personal and vested right" which imposes a corresponding duty on a specific obligor; it is a right which inheres in the person and cannot be alienated.

"During the life time of the husband, he is under personal obligation to maintain his wife, irrespective of the possession of any property. On his death, that obligation fastens to his property in the hands of an heir or legal representative," the judges made it clear, while holding that even after the husband's death the widowed wife can continue to get maintenance through his estate.

As regards, the claim of the wife to enhance the maintenance, the judges clarified that the section 37 of the Special Marriage Act, which is similar to the provisions of the Hindu Marriage Act - both dealing with permanent alimony and maintenance. The judges said that when a wife seek to enhance the amount awarded in her favour, by inviting the attention of the Court to the change in circumstances of either party, i.e. that of the husband, it necessarily contemplate a fresh judicial determination based on the 'circumstances of either party' involving even the husband.

In a situation where one of the party i.e. the husband is deceased, the key component of the judicial exercise for determination of enhancement is absent and definitely this right of enhancement cannot be claimed against any party other than the husband and definitely, not against the legal heirs who have no personal duty to maintain the ex-wife, the bench said. 

"We have no difficulty in holding that the claim for enhanced maintenance against the legal heirs of her deceased ex-husband under section 37 of the Special Marriage Act, 1954, cannot be entertained, the right claimed by her being a personal right and its variation being made contingent on the change in circumstances of the living spouses. This right and corresponding personal liability gets extinguished upon death of the husband though we have no difficulty in accepting the proposition. We also find merit in the contention that the consequences of allowing the enhancement would result in absurdity, uncertainty and would open flood gate of litigation," the judges held. 

In the detailed 40-page judgment authored by Justice Dangre, it is explained that allowing enhancement of maintenance would result in absurdity for the reason that if the claim for enhancement is based on the ex-wife's needs which have undergone a change since the time when the decree was passed in her favour, the determination will not have the other wise of the equation i.e. the husband's ability to pay, as he is no more alive. Apart, if the enhancement is based on the notional growth of the estate in the hands of the legal heirs, the enhancement would treat them unfairly if the growth of the estate, is purely attributable to their own doings.

"It would therefore, amount to creating of a share in the estate for the ex-wife, who is not at all responsible for the growth of the estate of her husband, had it been the case that her husband had substantially progressed and created wealth or estate during his life time, definitely, she would have been entitled to claim a share therein, but the legal heirs are not bound to share their financial growth with the widow. Another consequence for allowing enhancement would result in uncertainty, as the legal heirs will not be in a position to ascertain their final share, as the estate would be perpetually open to claim for enhancement by the widow, every time inflation rises or there is change in the need and requirement of the ex-wife and this would prevent the heirs from dealing freely with the inherited property or taking major decisions potentially created a future for them," Justice Dangre held. 

With these observations, the bench disposed of the plea. 

Appearance: 

Senior Advocate Deepa Chawan was appointed as an Amicus Curiae along with Advocate Ravindra Chile for the Wife.

Advocates Dr.Pradip Chavan and Shweta Borhade instructed by Pradip Chavan and Associates represented the Husband's Heirs. 

Case Title: Warsha @ Eleekusumchand Javeri vs Rajan Suren Goregaonkar (Family Court Appeal 74 of 2023)

Citation: 2026 LiveLaw (Bom) 284

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