Hindu Wife Can Claim Maintenance From Property Sold By Husband If Buyer Had Notice Of Her Claim: Kerala High Court Full Bench

The Full Bench of the Kerala High Court recently held that a Hindu wife is entitled to receive maintenance from the profits of the property of her husband even after its transfer, if the transfer was effected subsequent to initiation of legal proceedings for maintenance or if there is evidence showing that the transferee was aware of her claim at the time of sale.

The Bench of Justices Sushrut Arvind Dharmadhikari, P.V. Kunhikrishnan and G. Girish clarified that in such cases, the wife's right for maintenance will get the protection and privilege of Section 39 of the Transfer of Property Act/Section 28 of Hindu Maintenance and Adoption Act, which deals with the protection of a third person's right to maintenance from the profits of an immovable property irrespective of the transfer of that property.

According to it, such an entitlement accrues to the wife as a dormant right at the time of a marriage, becomes an inchoate right when she initiates legal proceedings claiming maintenance and turns into a charge upon the property only when a competent court declares that she is entitled to maintenance from her husband.

It observed:

“the transfer of immovable property would be subject to the right of a third person, conferred under Section 39 of the T.P Act, from the stage when such third person has initiated legal steps to receive maintenance or provision for advancement for marriage from his/her benefactor (husband, father, son, etc, as the case may be) and his properties. Though the aforesaid inchoate right of the third person would ripen to a typical charge only when a competent legal forum upholds the above right, the claimant will be entitled to enforce the special privilege and protection, akin to a charge, conferred upon him by the said Section if that property is alienated in the meanwhile, by the owner.”

The Court was answering two referred questions drawn up by the Division Bench, which was considering a matrimonial appeal filed by the claim petitioner in a maintenance case filed by a wife against her husband before the Family Court.

According to him, he was the bona fide purchaser of a property that belonged to the husband and claimed right over the property, which was later attached by the Family Court in favour of the wife.

The Family Court dismissed the claim petition finding that a wife is entitled to enforce her right of maintenance against the property as she held a charge upon it as per Section 39 of the Transfer of Property Act. The Family Court relied on Ramankutty Purushothaman v. Amminikutty (1997) to arrive at its decision. Aggrieved, the appeal was filed.

According to the claim petitioner/appellant, the wife had no right to receive maintenance from the profits of the immovable property as there is no provision under the Hindu Adoptions and Maintenance Act, 1956 (HAMA), which confers such a right. He contended that Section 39 of TP Act is not applicable in this case. The counsel for the claim petitioner placed reliance on Vijayan v. Sobhana (2007).

The Division Bench noted the conflicting views made in different judgments and referred the matter to the Full Bench for an authoritative pronouncement as to whether Section 39 TP Act would create a charge upon husband's property for the maintenance of a Hindu wife.

It had also emphasized the need to lay down the law on whether the principles derived from ancient texts could still have the force of law and create right over property subsequent to enactment of HAMA.

The Full Bench examined Section 39 of the TP Act as well as Sections 4, 18, 21, 23, 27 and 28 of the HAMA. It found that although Section 39 TP Act creates a protection and privilege similar to that of a charge in favour of a person entitled to maintenance even upon transfer, the provision does not create any charge on the property. For this protection to come, the pre-requisite is to establish that there is a right to receive maintenance, it added.

The Bench remarked that with the codification of laws governing Hindu marriage, maintenance and succession, any other inconsistent law ceased to have any binding effect and the same is provided under Section 4.

The Court remarked that the HAMA does not explicitly state that a Hindu wife's right to maintenance extends to her husband's property but Section 27 speaks about certain situations in which a widow's claim would amount to a charge on the property, if the husband is deceased.

The Court noticed that the only provision that deals with the creation of a charge upon the property is Section 27, which states there should be a Will by the deceased or a court decree or agreement between property owner and 'dependent' establishing a dependent's claim for maintenance.

Section 28, identical to Section 39 TP Act, speaks about the special privilege and protection of a dependent's right to receive maintenance out of a property and this could be enforced against a transferee having notice of such a right. However, the provision also does not create any charge over the property unless established as provided under Section 27.

The Court also took note of the fact that a 'dependent' as per Section 21 HAMA only includes a list of heirs and successors of a deceased and the same does not include a wife even though widow is mentioned.

It was of the opinion that though 'wife' was omitted, the intent of the legislature would not have been to exclude the right of a wife to proceed against her husband's property if denied maintenance.

Its observation was:

“The entitlement of a Hindu wife under Section 18 of the Act, 1956 to have maintenance from her husband is not only confined to his person but it extends to the estate of the husband as well.…It would be nothing short of travesty of justice if a hapless Hindu woman who had been abandoned by her husband was to remain helpless without having the option to proceed against the properties of her husband, and to remain in penury when she is denied maintenance by him. Neither the ancient Hindu laws, nor the principles of law codified by the Act, 1956 propounded such a proposition which would defeat the paramount legal obligation of a husband to provide maintenance to his wife and children.”

The Bench further opined that Section 39 TP Act has to be viewed with this in mind. Next, the Court analysed when the buyer of a property can be presumed to have knowledge about the wife's right.

“If any such transfer is effected during the period when a legal action, which even include the registered legal notice issued by the wife to her husband, has been initiated for getting maintenance from the husband and his properties; or during the period when she is deprived of such maintenance due to the death of her husband, then the purchaser shall be deemed to be having the knowledge of such right for the purposes of Section 39 of the Transfer of Property Act, 1882 or Section 28 of the Hindu Adoptions and Maintenance Act, 1956, as the case may be,” ruled the Court.

The Court also opined that the contrary view propounded in Vijayan v. Sobhana is not the correct position of law. Thus, clarifying the referral questions put forth by the Division Bench, it reverted the case records to the Bench for further proceedings in the matrimonial appeal.

The questions referred by the Division Bench were:

“(a) Is a Hindu wife entitled to receive maintenance from the immovable property of her husband dehors the provisions of the Hindu Adoptions and Maintenance Act, 1956?

(b) Is there not an apparent conflict between the views expressed in Vijayan v. Sobhana and Others [LIR 2007 (1) Kerala 822], or Sathiyamma v. Gayathri and Others [2013 (3) KHC 322], Nysha v. P.Suresh Babu (MANU/KE/2266/2019) and Hadiya (Minor) v. Shameera M.M. [2025 (3) KHC 131], and what is the correct law?”

Answers to the referral

Addressing these referrals, the Full Bench observed:

“(i) A Hindu wife is entitled to receive maintenance from the immovable property of her husband dehors the provisions of the Hindu Adoption and Maintenance Act, 1956.

(ii) The aforesaid right of the Hindu wife has to be presumed to be in a dormant stage till she initiates legal steps to realise maintenance from her husband and his properties, or till she is deprived of such maintenance due to the death of her husband.

(iii) During the above dormant stage of the aforesaid right, the purchasers of the immovable properties belonging to the husband of that Hindu wife cannot be presumed to be having the knowledge of such right for invoking Section 39 of the Transfer of Property Act, 1882, or Section 28 of the Hindu Adoptions and Maintenance Act, 1956. However, if there existed evidence to show that the purchaser, at the time of sale, was aware of denial of maintenance by the seller to his wife and any subsisting claim for maintenance which arose out of such denial, or if there were reasons to show that the transfer was gratuitous, then the wife's right for maintenance will get the protection and privilege of Section 39 of the T.P Act.

(iv) If any such transfer is effected during the period when a legal action, which even include the registered legal notice issued by the wife to her husband, has been initiated for getting maintenance from the husband and his properties; or during the period when she is deprived of such maintenance due to the death of her husband, then the purchaser shall be deemed to be having the knowledge of such right for the purposes of Section 39 of the Transfer of Property Act, 1882 or Section 28 of the Hindu Adoptions and Maintenance Act, 1956, as the case may be.

(v) The law laid down by a Division Bench of this Court in Vijayan v. Sobhana & Others [ILR 2007(1) Kerala 822] cannot be termed to be one expounding the correct proposition of law insofar as it holds that the wife and children of a Hindu do not have any right to claim maintenance from the profits of the immovable property held by that person.”