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...

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

K. Salma Jennath

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