The Kerala High Court, while answering a reference on questions of law made by a Division Bench, has held that a Hindu wife is entitled to claim maintenance from her husband’s immovable property under the 39 of the Transfer of Property Act, 1882 and Section 28 of the Hindu Adoptions and Maintenance Act, 1956 (“Act 1956”), given the transfer was gratuitous in nature and transferee had the notice of such pre-existing right. The Full Bench comprising Justice Sushrut Arvind Dharmadhikari, Justice P.V. Kunhikrishnan, and Justice G. Girish, clarified that the right of maintenance, though not expressly declared as a charge under the Transfer of Property Act, 1882, can be enforced against the husband’s estate and, in certain circumstances, against transferees as well.
The reference arose from a matrimonial appeal wherein a third-party purchaser challenged the attachment of property effected in execution of a maintenance decree obtained by the wife. The purchaser contended that in the absence of a statutory charge, the wife could not proceed against the property and relied upon Section 39 of the Transfer of Property Act, 1882, and the decision of the Court in Vijayan v. Sobhana, to resist the claim.
Noting the conflicting view taken by the earlier Division Bench of the Kerala High Court, in Vijayan v. Sobhana and Others (ILR 2007(1) Ker 822) vis-à-vis previous decisions of other Division Benches, including Divakaran v. Chellama (1985 KLT 1001), Nysha v. P. Suresh Babu (MANU/KE/2266/2019) and Hadiya v. Shameera (2025 (3) KHC 131), the matter was placed before a Full Bench for authoritative determination.
The Court analysed the scheme of the Hindu Adoptions and Maintenance Act, 1956, along with settled principles of Hindu law and Section 39 of the Transfer of Property Act. It noted that under Section 18 of the 1956 Act, a Hindu husband’s obligation to maintain his wife is not confined to a personal duty but attaches to his estate. The Court further observed that although Section 39 does not itself create a charge, it recognises and safeguards an existing right of maintenance against transferees who are aware or have strong reasons to believe that there exists a right to maintenance of a third party over the transferred property.
The Full Bench clarified that a wife’s right to maintenance lies dormant until she takes steps to enforce it or is deprived of maintenance upon the husband’s death. The right becomes actionable only once proceedings are initiated and attains finality upon the passing of a decree. The Court further held that purchasers who acquire property after the commencement of maintenance proceedings cannot plead lack of notice of the wife’s subsisting right.
Answering the reference, the Court held that a Hindu wife can enforce her right to maintenance against the husband’s immovable property even dehors the 1956 Act, and the view taken in Vijayan v. Sobhana to the contrary does not lay down the correct law. The matter was accordingly directed to be placed before the Division Bench concerned for further procedure in the matrimonial dispute, qua which the present legal question arose.
Appearances:
For Petitioners: Latheesh Sebastian, adv.
For Respondent: Saju J Panicker adv., Kurian K Jose, adv.
Amicus Curiae: Senior Counsel Adv. T Krishnanunni
