Kerala HC Full Bench Holds Hindu Wife Entitled to Maintenance from Husband’s Immovable Property [Read Order]

Kerala: The Kerala High Court Full Bench has delivered a landmark judgment holding that a Hindu wife is entitled to receive maintenance from her husband’s immovable property independent of the Hindu Adoptions and Maintenance Act, 1956, developing a sophisticated three-stage framework wherein the wife’s right remains “dormant” until legal proceedings are initiated, becomes “inchoate” upon the filing of a suit, and “crystallizes” into a charge upon a court decree.

Justices Sushrut Arvind Dharmadhikari, P. V. Kunhikrishnan, and G. Girish constituted the Full Bench to resolve conflicting Division Bench decisions on whether Section 39 of the Transfer of Property Act and Section 28 of the Hindu Adoptions and Maintenance Act, 1956 protect a Hindu wife’s right to claim maintenance from transferred property.

The reference arose from a case where a claim petitioner purchased five cents of land on July 16, 2007, from a husband who had an estranged relationship with his wife. The property was later attached on November 14, 2007, in an original petition filed by the wife, with a decree passed in her favour on March 12, 2009.

Senior Advocate T. Krishnanunni was appointed as amicus curiae to assist the Court in resolving complex issues involving ancient Hindu law, statutory provisions, and conflicting judicial precedents.

The Court examined the historical development of the law from ancient Hindu texts, including Smrities and commentaries authored by Manu, Narada, and Yajnavalkya, through the landmark 1877 decision in Lakshman Ramachandra v. Satyabhama, to modern statutory provisions.

Analysing Section 39 of the Transfer of Property Act, the Court held:

“Section 39 of the T.P. Act deals with the special privilege and protection of a third person’s right to receive maintenance, or provision for advancement or marriage, from the profits of immovable property, notwithstanding the transfer of that property.”

However, the Court clarified:

“Neither the word ‘charge’, nor its essential requirement of making a property security for the payment of money, finds a place in Section 39 of the T.P. Act,”

emphasising that the provision protects existing rights but does not itself create a charge.

Examining the Hindu Adoptions and Maintenance Act, 1956, the Court noted that while Section 18(1) declares a Hindu wife’s right to be maintained by her husband and Section 23(2) provides parameters for fixing maintenance amounts:

“The said Act does not contain any provision making it clear that the maintenance amount due to the wife, children, or aged parents of a Hindu male shall be a charge over the property of that person.”

The Court distinguished between Sections 27 and 28 of the 1956 Act, observing that Section 27 deals with maintenance claims of a deceased’s dependants becoming a charge through a will, decree, agreement, or otherwise, while Section 28 provides:

“Special privilege and protection to the dependant’s right to receive maintenance out of an estate”

during the period before it crystallises as a charge.

Addressing concerns regarding property transactions, the Court observed:

“If such knowledge about the right of a Hindu wife to have maintenance out of the properties of her husband is presumed to exist upon a purchaser merely because the vendor is a married person, a precarious situation would arise, making the purchase of immovable property from married persons highly risky.”

Developing its three-stage framework, the Court held:

“The right which a Hindu wife obtains by her marriage to receive maintenance out of the immovable properties of her husband has to be presumed to remain in a dormant stage till a cause of action arises due to the denial of maintenance.”

It further explained:

“The aforesaid dormant right gets transformed into an inchoate right when she initiates appropriate legal proceedings for the realisation of maintenance.”

Finally, the Court stated:

“The above-said inchoate right will get crystallised as a charge upon the immovable properties of her husband when a competent court declares her right.”

Crucially, the Court held that:

“Knowledge of such right could be attributed to purchasers from the stage when it assumes the character of an inchoate right, upon the estranged wife initiating appropriate legal proceedings.”

The Court overruled portions of the Division Bench decision in Vijayan v. Sobhana, observing:

“With great respect to the Hon’ble Judges who rendered the said verdict, we strongly disagree”

with the conclusions that Section 28 has no applicability to wives and that Section 39 does not apply to maintenance claims against property.

Emphasising the justice imperative, the Court stated:

“It would be nothing short of a travesty of justice if a hapless Hindu woman, abandoned by her husband, were to remain helpless without any remedy against his properties.”

The Court held that the absence of an explicit provision in the 1956 Act enabling a wife to proceed against her husband’s property:

“Can only be an omission and cannot be said to be inconsistent with the provisions of the Act.”

In its final determination, the Full Bench held that a Hindu wife is entitled to receive maintenance from her husband’s immovable property independent of the 1956 Act, though such right remains dormant until legal steps are initiated.

It clarified that purchasers cannot be presumed to have knowledge of dormant rights; however, if evidence shows awareness of denial of maintenance or a subsisting claim, or if the transfer is gratuitous, the wife’s right would receive protection under Section 39 of the Transfer of Property Act.

Significantly, the Court held that if a transfer occurs after the initiation of legal action — including issuance of a registered legal notice — the purchaser shall be deemed to have knowledge of such right for the purposes of Sections 39 and 28.

The Court placed on record its appreciation for:

“The valuable assistance rendered by the learned Amicus Curiae, Senior Advocate Mr. T. Krishnanunni.”

Case Title: Sulochana v. Anitha & Ors.

[Read Order]