Bombay HC: Divorce Maintenance Decree Survives Husband’s Death, But Ex-Wife Cannot Seek Enhancement From His Estate [Read Judgment]

The Bombay High Court on May 6, 2026 held that while a divorce maintenance decree does not abate or extinguish on the husband’s death and remains enforceable against his estate, a divorced wife cannot seek enhancement of the maintenance amount from the legal heirs of her deceased ex-husband after his death, as the right to seek enhancement under Section 37(2) of the Special Marriage Act, 1954 is personal to the parties to the marriage and presupposes both spouses to be alive [Warsha @ Eleekusumchand Javeri v. Rajan Suren Goregaonkar and Others, Family Court Appeal No. 74 of 2023].

A Division Bench of Justice Bharati Dangre and Justice Manjusha Deshpande, deciding two questions of law of significant legal importance concerning Section 37 of the Special Marriage Act, 1954, answered the first question in the affirmative and the second in the negative, and dismissed the appeal filed by the divorced wife.

Background

The appellant Warsha was married to Naren Goregaonkar under the Special Marriage Act, 1954 on January 29, 1974. There was no issue from the marriage and the parties were estranged since 1977. Naren Goregaonkar filed a petition for divorce in 1980 and the appellant filed a petition for maintenance before the Bombay City Civil Court in 1983. Both proceedings were heard together; the appellant’s maintenance petition was dismissed but the divorce was granted and the husband was directed to pay ₹6,000 per month as maintenance by the Family Court, Bandra in 1999.

Naren Goregaonkar died intestate on March 15, 2012, without remarrying. Letters of Administration in respect of his estate were granted to his brother Suren Goregaonkar by this Court on June 6, 2014. The appellant filed a miscellaneous application before the Family Court seeking two reliefs: recovery of arrears of maintenance as per the 1999 decree and enhancement of the monthly maintenance amount. The Family Court by order dated February 9, 2023 granted the first relief, holding that the appellant was entitled to recover arrears from the estate of the deceased and that a charge could be created on the estate’s properties for recovery of ₹6,000 if not otherwise paid. However, the Family Court rejected the prayer for enhancement, finding that the appellant had considerable resources of her own. The appellant challenged the rejection of enhancement before the High Court.

The Court formulated two questions of law: (1) whether a maintenance decree could be enforced against the estate of a late husband by a divorcee wife; and (2) whether the right to seek enhancement of permanent maintenance could be enforced against the estate of the late husband. Senior Counsel Ms. Deepa Chavan was appointed as amicus curiae to assist the Court given the significance of the questions.

Question 1: Maintenance Decree Enforceable Against the Estate

The Court answered the first question in the affirmative without difficulty, relying primarily on Mrs. Aruna Basu Mullick v. Mrs. Dorothea Mitra, (1983) 3 SCC 522, where the Supreme Court had held that a decree for permanent alimony passed under Section 37 of the Special Marriage Act is not wiped out on the death of the husband and remains executable against the husband’s estate in the hands of his heirs. The Court held that a maintenance decree, like any other civil decree, is enforceable against the estate of the judgment debtor post-death, and that there is no rationality in the contention that a maintenance decree is extinguished by the husband’s death when any other civil decree would not be. Neither the existence of a charge on the husband’s property nor its absence affects this position.

The Court also drew support from Yallawa v. Shantavva, (1997) 11 SCC 159, which had held that while a personal cause of action dies with the person on the principle of actio personalis moritur cum persona, all causes of action having an impact on proprietary rights and socio-legal status survive. The Court held that a finalised maintenance decree falls in this latter category and is enforceable from the estate.

Question 2: Enhancement Cannot Be Claimed Against Legal Heirs

On the second and more significant question, the Court held that the right to seek enhancement of maintenance under Section 37(2) of the Special Marriage Act is a personal right exercisable only between the living parties to the marriage — the husband and wife — and does not survive against the legal heirs of the deceased husband.

The Court analysed the scheme of Section 37 in its entirety. Sub-section (1) creates a right in the wife and a reciprocal personal obligation on the husband to maintain her during her lifetime. Sub-section (2) empowers the Court to vary, modify or rescind such an order on the application of “either party” upon change in the circumstances of either party. Sub-section (3) allows the husband to seek rescission upon the wife remarrying or not living a chaste life. The Court held that all three sub-sections necessarily contemplate both husband and wife being alive, as the orders under each sub-section are made at the instance of one party and implemented against the other.

The Court held that a wife seeking enhancement is not enforcing an existing crystallised right but is staking a fresh claim requiring a fresh judicial determination of the changed circumstances of both parties. Since the husband is deceased, a key component of this judicial exercise is absent: it is impossible to assess the husband’s ability to pay, his changed circumstances, or his conduct — all of which Section 37 requires the Court to consider. Legal heirs of the husband owe no personal duty to maintain the ex-wife and cannot be compelled to assume liability for an amount never determined against the deceased.

The Court noted that permitting enhancement against the estate would lead to absurdity, as the estate’s growth may be wholly attributable to the efforts of the legal heirs rather than to the deceased husband’s assets, and it would create perpetual uncertainty in the administration of estates, preventing heirs from ascertaining their final liability and dealing freely with inherited property. It would also open the floodgates to repeated applications for enhancement against the estates of deceased ex-husbands.

The Court distinguished Smt. Nandarani Mazumdar v. Indian Airlines and Others, (1983) 4 SCC 461, where the Supreme Court had directed enhanced alimony post-death of the husband, holding that the Apex Court had exercised its extraordinary and equitable jurisdiction to do complete justice in the specific facts of that case and had not laid down a general proposition of law that Section 37(2) empowers a Family Court to entertain a fresh application for enhancement after the husband’s death.

Conclusion

The Court accordingly held: (1) a maintenance decree does not abate on the death of the husband and is enforceable against his estate for arrears as well as for ongoing monthly payments during the wife’s lifetime; and (2) the right to seek enhancement of maintenance under Section 37(2) is a personal right that requires both parties to the marriage to be alive and cannot be exercised against the legal heirs of the deceased husband. The Family Court’s order rejecting the enhancement prayer was upheld and the appeal was dismissed.

The Court placed on record its appreciation for the assistance rendered by amicus curiae Senior Counsel Ms. Deepa Chavan and for Dr. Pradip Chavan appearing for the respondents.

Case Details

• Case Title: Warsha @ Eleekusumchand Javeri v. Rajan Suren Goregaonkar and Others
• Case Number: Family Court Appeal No. 74 of 2023
• Court: High Court of Judicature at Bombay
• Bench: Justice Bharati Dangre and Justice Manjusha Deshpande
• Date of Judgment: May 6, 2026

Appearances: 

• Amicus Curiae: Senior Advocate Deepa Chavan with Advocate Ravindra R. Chile
• For Respondents: Dr. Pradip Chavan with Advocate Shweta Borhade
• Appellant appeared in person

[Read Judgment]