The Kerala High Court on Wednesday held that a Hindu wife is entitled to claim maintenance against her husband’s immovable property even after it is transferred, provided she had initiated legal proceedings for maintenance before the transfer or the buyer had notice of her claim [Sulochana v Anitha & ors]

A Full Bench of Justice Sushrut Arvind Dharmadhikari, Justice PV Kunhikrishnan and Justice G Girish delivered the judgment on a reference made by a Division Bench which had noticed conflicting judgements on the issue of whether the Hindu Adoptions and Maintenance Act, 1956 allows a wife to claim maintenance from her husband's immovable property.

The question essentially pertained to the applicability of Section 39 of the Transfer of Property Act and Section 28 of Hindu Adoptions and Maintenance Act. Both the provisions ensure that the wife’s right to maintenance can be enforced against the husband’s property even after transfer.

In a judgment dated January 14, the Full Bench ruled that 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.

However, the Court clarified that such 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 husband's death.

It added that during such dormant stage, the purchasers of the immovable properties cannot be presumed to be having the knowledge of such right for invoking Section 39 of the Transfer of Property Act or Section 28 of the Hindu Adoptions and Maintenance Act.

"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," the Court further said.

Further, the Court ruled that if any such transfer is effected during the period when a legal action has been initiated by the wife or during the period when she is deprived of such maintenance due to her husband's death, 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 or Section 28 of the Hindu Adoptions and Maintenance Act.

The reference answered by the Full Bench had its origins in the case filed by a buyer who claimed to be a bona fide buyer of five cents of land purchased in 2007 from a man who was estranged from his wife. A family court had attached the property and later passed a decree in favour of the wife, who had initiated maintenance proceedings against her husband.

Challenging this, the purchaser filed a claim petition before the family court stating that the wife had no right over the property as the sale had taken place before she filed her maintenance petition.

Relying on Kerala High Court's decision in Ramankutty Purushothaman v Amminikutty (AIR 1997 Ker 306) and Section 39 of the Transfer of Property Act, the family court dismissed the claim petition, holding that the wife was entitled to enforce her right of maintenance against the property.

Aggrieved by this, the purchaser approached the High Court.

Before the Division Bench, the purchaser argued that there is no provision under the 1956 Act which allows a wife to claim maintenance from her husband’s immovable property.

He also relied on the judgment in Vijayan v Sobhana & ors (ILR 2007(1) Kerala 82) to contend that a wife's right to maintenance is only against the husband and not against his property.

Due to an apparent conflict of opinion in certain judgments on the issue, a Division Bench in July 2025 referred the matter for a decision by a Full Bench.

The Full Bench, after examining the earlier judgments and legal provisions, observed that it would be grave injustice if a woman abandoned by her husband is left without any remedy against his property.

"At the risk of repetition, we hereby reiterate our view that 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 any option to proceed against the properties of her husband, and to remain in penury when she is denied maintenance by him," the Court said.

Although the 1956 Act does not explicitly mention that the right of a Hindu wife to have maintenance from her husband extends to his property as well, it cannot be interpreted to curtail the wife's entitlement, the Bench said.

"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 added.

The Court opined that the view taken in Vijayan (supra) was not correct in law insofar as it denied wives the right to proceed against immovable property for maintenance.

"With great respect to the Hon’ble Judges who rendered the said verdict, we strongly disagree to both the above propositions held in the aforesaid decisions," the Full Bench said.

Senior Counsel T Krishnanunni appeared as amicus curiae.

The purchaser was represented by advocate S Balachandran Kulasekharam and VR Gopu.

The husband was represented by advocate G Krishnakumari.

[Read Judgment]