Isabella Mariam

The High Court of Kerala Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar, on 11th July 2025, issued a reference order directing the matter to be placed before a Full Bench for authoritative determination. The court directed that the issue of whether a Hindu wife has the right to claim maintenance from her husband’s immovable property independent of the codified provisions under the Hindu Adoptions and Maintenance Act, 1956 requires resolution. The reference arises from conflicting views expressed by different Division Benches regarding the enforceability of a maintenance claim against transferred immovable property of the husband.

The Bench also observed the apparent inconsistency in judicial precedents, including those in Vijayan v. Sobhana, Sathiyamma v. Gayathri, and others, thereby necessitating clarity on the correct legal position. Accordingly, the court instructed the Registry to place the records before the Hon'ble Chief Justice for appropriate directions to constitute a Full Bench.

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The appeal originated from a claim petition filed under Rule 58 of Order XXI of the Code of Civil Procedure before the Family Court, Thiruvananthapuram. The appellant, a claim petitioner, sought exclusion of a five-cent portion of land from attachment proceedings instituted by the first respondent, a wife claiming maintenance from her husband.

The appellant asserted that he was a bona fide purchaser for valuable consideration of the five cents of land, which he had purchased from the husband (second respondent) prior to the date of attachment. The sale deed was executed on 16.07.2007, while the attachment was affected later, on 14.11.2007. The original petition for maintenance was decreed in favour of the wife on 12.03.2009.

The Family Court dismissed the claim petition, concluding that the wife was entitled to enforce her maintenance right against the property, relying on judicial precedent in Ramankutty Purushothaman v. Amminikutty (AIR 1997 Ker 306).

The appellant challenged this decision, arguing that the wife had no enforceable right under the Hindu Adoptions and Maintenance Act, 1956, to claim maintenance from the specific immovable property in question. He asserted that the statutory provisions did not confer any such entitlement, and since the sale was concluded before the initiation of the maintenance proceedings, the property could not be attached.

The appellant placed reliance on a Division Bench judgment of the Kerala High Court in Vijayan v. Sobhana and Others [ILR 2007 (1) Ker 822], where it was held that the benefit of Section 28 of the Hindu Adoptions and Maintenance Act, 1956 was available only to a “dependant” and that the term did not include the wife or children of a living husband.

Section 28 was noted to apply exclusively to those entitled to receive maintenance out of an estate, and this right was to be enforced against transferees only when there was a charge or when the transferee had notice or when the transfer was gratuitous.

The husband supported the appellant’s stand, whereas the wife did not enter appearance in the appeal.

The court recorded that ancient Hindu law recognized a Hindu wife’s interest in her husband’s property, even if of a secondary nature. Reference was made to Lakshman Ramachandra v. Satyabhama [(1877) ILR 2 Bom 494], which had held that marriage created such an interest, sufficient to entitle the wife to a share at the time of partition.

Conflicting views have emerged from various High Courts regarding whether a Hindu wife has a charge over her husband’s property to enforce maintenance. While decisions such as Pavayamal v. Samiappa Goundan [AIR 1947 Mad 376] rejected such a charge in the absence of specific statutory provision, other judgments, including Banda Manikyam v. Banda Venkayamma [AIR 1957 AP 710], adopted a more inclusive approach based on obligations derived from classical Hindu law.

The Andhra Pradesh High Court in Banda Manikyam held that a wife’s right to maintenance could be enforced against transferred property if the transferee had notice of such right, characterizing alienation under such circumstances as a fraud.

Various other High Courts have supported the view that the right to maintenance persists beyond codified law, citing the protective obligations under classical texts. These include:

• Vellayammal v. Srikumara Pillai (AIR 1960 Madras 42)

• Ramaswamy Goundar v. Baghyammal [(1966) 2 MLJ 579]

• Alluri Bala Satya Krishna Kumari v. Alluri Varalakshmi (AIR 1976 AP 365)

• Siddegowda v. Lakkamma (AIR 1981 Kant 24)

• Basudeb Dey Sarkar v. Chhaya Dey Sarkar (AIR 1991 Cal 399)

• C. Yemuna v. P. Manohara (AIR 2004 AP 317)

Several decisions of the Kerala High Court have followed similar reasoning, including Divakaran v. Chellamma (1985 KLT 1001), Lakshmi v. Valliyammal (1992 (2) KLT 873), and Sathiyamma v. Gayathri (2013 (3) KHC 322).

However, the Bench noted that Vijayan v. Sobhana laid down a contrary view, stating that Section 28 does not apply to wives and children as they are not included in the definition of dependants under Section 21 of the 1956 Act.

Further, the Bench examined the relevance of Section 39 of the Transfer of Property Act, 1882, which provides that maintenance rights over transferred property can be enforced if the transferee had notice or if the transfer was gratuitous. The court recorded that Section 39 does not create a substantive right but prescribes conditions under which existing rights may be enforced against a transferee.

The judges examined Sections 27 and 28 of the 1956 Act, which deal with maintenance becoming a charge and the effect of transfer on such rights. Both provisions presuppose the existence of a right created through statute, decree, will, or agreement. They noted that the wife of a living husband is not covered under Sections 21, 27, or 28.

In contrast, Section 18 of the Act provides a Hindu wife a right to maintenance from her husband during his lifetime. The provision, however, does not expressly confer a right to maintenance from any specific property or declare such a right as a charge upon immovable assets.

The court observed that "Section 39, in itself, does not create any charge or any right in a person to receive maintenance from the profits of immovable property." It further stated that "Section 39 merely declares that where a third person has a right to receive maintenance from the profits of immovable property, such right may be enforced against the property even after it is transferred, subject to the conditions specified therein."

On the scope of Section 28 of the 1956 Act, the Division Bench remarked that "Section 28 also, by itself, does not create any right in the dependant to receive maintenance out of the properties of the deceased."

Addressing the definition of dependants under Section 21, the court noted: "Notably, it does not include the wife of a living husband. Therefore, during the lifetime of the husband, the wife does not fall within the ambit of Sections 21, 27, and 28 of the Act, 1956."

The Bench analysed Section 18, which states that "a Hindu wife shall be entitled to be maintained by her husband during her lifetime," and observed that "the provision does not expressly confer any proprietary right upon the wife in such resources."

The court acknowledged the legislative purpose of the 1956 Act as one intended "to amend and codify the law relating to adoptions and maintenance among Hindus," thereby overriding ancient Hindu law were inconsistent.

On the potential misuse by husbands to defeat maintenance rights, the court stated: "if a Hindu wife has a right to receive maintenance from her husband’s property, such a right must emanate from certain other sources, as held in Divakaran v. Chellamma (supra), and not from the provisions of the Act, 1956 itself."

It further clarified: "As per Section 4 of the Act, 1956, any text, rule or interpretation of Hindu law or any custom or usage shall cease to have effect with respect to any matter for which provision is made in this Act."

Discussing the limitations of Section 18, the court stated: "Section 18 does not provide a right for the wife to receive maintenance from the immovable property of the husband."

Referring to the necessity of a clear legal framework, the Division Bench concluded: "Even after the enactment of a comprehensive legislation governing the right to receive maintenance from immovable property, to what extent the principles derived from ancient texts can be accorded the force of law remains to be determined."

The court directed that "as we have noticed that there are conflicting views expressed by different Division Benches of this Court on the issue, we are of the considered view that the matter requires to be referred to a Full Bench for an authoritative pronouncement."

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The Bench framed two questions to be considered by the Full Bench:

(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?

It further ordered: "Let the records be laid by the Registry before Hon'ble the Chief Justice for appropriate directions."

Advocates Representing the Parties:

For the Appellant/Claim Petitioner: Sri. S. Balachandran (Kulasekharam), Sri. V.R. Gopu

For the Respondents: Sri. K. Satheesh Kumar, Sri. T.A. Unnikrishnan, Smt. G. Krishnakumari

Case Title: Sulochana v. Anitha & Others

Case Number: Mat.Appeal No.1093 of 2014

Bench: Justice Sathish Ninan and Justice P. Krishna Kumar