A PROJECT

ON
“MAINTANCE AS A CHARGE ON PROPERTY”

SUBJECT: FAMILY LAW II

(Submitted as a partial fulfilment of the requirements for B.A. LL. B (Hons.) 5 Year Course)

SESSION: 2024-2025
SUBMITTED ON: 22.03.2025

SUBMITTED TO:
SUBMITTED BY:
Dr. Juhi Pawa
Garvit Chaudhary
(Faculty, UFYLC)
Roll no. 48
Semester 6 (A)

UNIVERSITY FIVE YEAR LAW COLLEGE

UNIVERSITY OF RAJASTHAN
JAIPUR

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 DECLARATION

I, Garvit, hereby declare that project titled “Maintenance as a charge on property” is based
on the original research carried out by me under the guidance and supervision of Dr. Juhi
Pawa at University Five Year Law College. The interpretations and inferences put forth are
based on my reading, understanding and comprehension of the original text. The book,
article, website and any other literary resources used or are relied upon by me have been duly
acknowledged by me at the respective places with the text for the present project which I am
submitting to the University, no degree or diploma has been conferred on me before, either in
this or in any University.

Date: 22.03.2025
SIGNATURE
(Garvit Chaudhary)

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 CERTIFICATE

Dr. Juhi Pawa Date: 22.03.2025

(Faculty, UFYLC)

This is to certify that Ms. Garvit Chaudhary student of 6th Semester, Section A of University
Five Year Law College, University of Rajasthan has carried out the project titled
“Maintenance as a charge on property” under my supervision and guidance. It is an
investigation report of minor project. The student has completed research work in stipulated
time and according to norms prescribed for the purpose.

SIGNATURE

(Dr. Juhi Pawa)

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 ACKNOWLEGMENT

I have written this project, “Maintenance as a charge on property” under the supervision of
Dr. Juhi Pawa, Faculty, University of Rajasthan, Jaipur. Her valuable suggestions herein
have not only helped me immensely in making this project but also in developing an
analytical approach towards this project.

I would also like to present my gratitude to Hon’ble Director Dr. Ankita Yadav for her
consistent support during the preparation of this project. I am extremely grateful to all the
librarians and library staff of the college for the support and cooperation extended by them
from time to time.

SIGNATURE

(Garvit Chaudhary)

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 TABLE OF CONTENTS

DECLARATION.......................................................................................................................2

CERTIFICATE..........................................................................................................................3

ACKNOWLEDGEMENT..........................................................................................................4

INTRODUCTION......................................................................................................................6

LEGAL FRAMEWORKS..........................................................................................................8

JUDICIAL TRENDS AND CASE LAWS..............................................................................9

MODES OF ENFORCING MAINTENANCE........................................................................10

RIGHTS INVOLVED AND COMAPRATIVE PERSPECTIVE............................................11

CHALLENGES AND REFORMS..........................................................................................13

CONCLUSION.......................................................................................................................14

BIBLIOGRAPHY....................................................................................................................15

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 INTRODUCTION

The concept of maintenance is rooted in the basic human need for sustenance
and care, particularly for those unable to support themselves due to financial or
physical constraints. In legal terms, maintenance refers to the financial support
that a person is entitled to receive from another, typically a spouse, parent, or
legal guardian. While maintenance can be ordered by the court or agreed upon
by parties, its enforceability becomes significantly strengthened when it is
charged against a property. This assignment aims to explore the concept of
maintenance as a charge on property, focusing on its legal foundation, statutory
backing, judicial interpretation, and practical implications.
In Indian law, the right to maintenance arises from various personal laws and
statutory provisions such as the Hindu Adoptions and Maintenance Act, 1956,
Section 125 of the Criminal Procedure Code, 1973, and the Protection of
Women from Domestic Violence Act, 2005. While these laws mandate the
payment of maintenance, one of the critical challenges faced by dependents is
the enforcement of these maintenance orders, particularly when the payer
refuses or fails to comply.

In order to safeguard the rights of the claimant, courts have the authority to
direct the creation of a charge on the property of the person liable to pay
maintenance. This means that a legal interest is created over specific movable
or immovable property, thereby securing the maintenance amount due. Such a
charge ensures that the claimant has a form of financial security and can recover
maintenance through the property, even in cases of default.

The idea of creating a charge on property has both legal and socio-economic
significance. It acts as a deterrent against willful default and provides an
effective mechanism to enforce court orders. Moreover, it reflects the evolving
nature of family law, which is increasingly being interpreted in a gender-
sensitive and rights-based manner.

This project aims to explore the legal basis, judicial interpretation, practical
implementation, and challenges associated with maintenance as a charge on
property. It will examine relevant statutory provisions, landmark judicial

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decisions, and enforcement mechanisms, and also compare the Indian approach
with international practices. Ultimately, the study will highlight the importance
of this remedy in ensuring access to justice for vulnerable family members and
suggest ways to strengthen this legal provision for better outcomes.

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 LEGAL FRAMEWORKS

This section discusses the statutory provisions that recognize and govern
maintenance in India, particularly how they enable the creation of a charge on
property:

• Hindu Adoptions and Maintenance Act, 1956 (Section 18 & 19):

Allows a wife to claim maintenance and empowers courts to create a
charge over the husband’s property.

• Criminal Procedure Code, 1973 (Section 125): Provides a speedy

remedy for wives, children, and parents to claim maintenance.
Though not directly mentioning property charges, courts have
enforced arrears using property.

• Protection of Women from Domestic Violence Act, 2005 (Section

20): Includes maintenance as a part of monetary relief; courts can
enforce orders through attachment of property.

• Transfer of Property Act, 1882 (Section 100): Defines a charge and

outlines how a legal interest in property can be created for securing debts
or obligations like maintenance.

• Personal Laws (Muslim, Christian, Parsi): Each has separate

provisions for maintenance, though enforcement varies.

• Family Courts Act, 1984: Empowers family courts with civil

and criminal jurisdiction for quick and just relief.

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 JUDICIAL TRENDS AND CASE LAWS

Indian courts have played a crucial role in ensuring that maintenance orders are not
just symbolic but enforceable. One of the ways they've done this is by allowing
maintenance to be secured through a charge on the property of the person
liable to pay, especially when there's a risk of default.

Key Legal Trends:

• Courts recognize maintenance as a continuing legal and moral

obligation.

• Even when the law doesn’t explicitly mention charges on property

(e.g., CrPC), courts use inherent powers or interpret laws broadly to
protect the rights of the dependent.

• This approach helps provide financial security to wives, children, and

elderly parents.

Important Case Laws:

• Manokaran v. M. Devaki (2003)

The court upheld the creation of a charge on the husband’s property under
Section 19 of the Hindu Adoptions and Maintenance Act to secure the
wife's maintenance.
• B.P. Achala Anand v. S. Appi Reddy (2005)
Supreme Court emphasized the ongoing nature of maintenance and the need
for effective enforcement, linking it to dignity under Article 21.
• Shantha v. Narayanappa (1984)
Karnataka High Court allowed a charge on immovable property to ensure
future maintenance payments.

Takeaway:

Courts in India have shown flexibility and proactive enforcement in maintenance

cases. Creating a charge on property is increasingly seen as a practical and just
way to ensure that maintenance orders are honored.

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 MODES OF ENFORCING MAINTENANCE

Even if maintenance is awarded by the court, actual payment isn’t always

guaranteed. To deal with non-compliance, courts have several legal tools at their
disposal. One effective method is enforcing maintenance through the
respondent’s property.

Main Enforcement Methods:

1. Attachment of Property
If the person fails to pay maintenance, the court can order the seizure and sale
of movable or immovable property to recover the amount.

2. Creation of a Legal Charge

In personal laws like Hindu law, the court can formally place a charge on
property (usually immovable) to secure maintenance dues or future payments.
This makes the claimant a “secured creditor.”

3. Sale of Property
Once a charge is created or if arrears accumulate, the court can authorize sale of
the property to recover the maintenance amount.

4. Appointment of a Receiver
For income-generating properties (like rental houses), the court can appoint a
receiver to collect and pay the maintenance from the income.

5. Warrants and Penal Action

Under Section 125 CrPC, if there's willful default, courts can issue warrants or
even sentence the defaulter to jail for non-payment.

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 RIGHTS INVOLVED AND COMPARATIVE
PERSPECTIVE

Maintenance touches on several intersecting legal rights. When courts place a

charge on property to enforce maintenance, multiple interests must be balanced:

• Right of the Claimant (Wife, Child, or Parent):

They have a legal and moral right to be supported, often grounded in
Article 21 of the Constitution (Right to Life and Dignity). Securing
maintenance through property ensures financial stability.

• Right of the Property Owner (Respondent):

The person paying maintenance has a right to their property, but this can
be limited if they fail in their maintenance obligations.

• Third-Party Rights (e.g., Purchasers or Creditors):

If a charge is created on a property already sold or mortgaged, legal
complications can arise. Courts must ensure that such third-party interests
are fairly addressed.

• Children’s and Elders' Rights:

Courts prioritize the welfare of children and elderly parents, often giving
them preferential treatment in enforcing maintenance, even over other
creditors.

Comparative Perspective

Looking at how other countries handle this helps highlight India's approach:

• United Kingdom:
Courts can issue charging orders on a defaulter's property and even force a sale to
recover maintenance.

• United States:
Strict enforcement through wage garnishment, property liens, and even jail time for
defaulters. States have child support enforcement agencies.
• Canada & Australia:
Use centralized systems to track income and assets. Property can be seized, and
government bodies actively recover dues.

• India (in comparison):

Relies heavily on judicial discretion and slower enforcement processes. No
centralized system exists to monitor or enforce maintenance orders uniformly.

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 CHALLENGES AND REFORMS

Challenges in Implementation

While laws exist, actual enforcement can be difficult. Key issues include:

• Delays in Court Proceedings:

Cases can take years, defeating the purpose of timely maintenance.

• Difficulty Tracing Property:

Defaulters may hide or transfer assets to avoid responsibility.

• Benami Transactions:
Property held in someone else’s name is hard to access legally.

• Low Awareness:
Many dependents (especially women) are unaware of their rights or fear social
backlash.

• Lack of Uniform Enforcement Mechanism:

No national database or system to track maintenance orders or enforce them
effectively.

Suggestions and Reforms

To improve enforcement and protect the rights of dependents, several reforms can be
suggested:

• Create a Central Maintenance Recovery Authority:

Similar to tax recovery or loan default agencies.

• Digitize Asset Records:

Link Aadhaar, PAN, and land/property databases to track assets quickly.

• Time-Bound Hearings:
Fast-track courts for maintenance cases to ensure urgent relief.

• Penalize Non-Disclosure of Assets:

Strict penalties for hiding or transferring property to avoid liability.

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 CONCLUSION

The right to maintenance is not merely a statutory entitlement—it is a crucial safeguard for
the economic and personal dignity of those who are often left vulnerable after a marital
breakdown or family dispute. In India, where social structures and economic dependency
often leave women, children, and elderly parents financially insecure, the law plays a vital
role in ensuring that they are not abandoned without support.

Placing maintenance as a charge on property is one of the most effective legal tools to
secure these rights. It serves as a protective mechanism, giving courts the ability to enforce
financial obligations through the respondent’s assets. This remedy is especially important in
cases where the respondent is unwilling to comply with court orders, or where there is a clear
risk of non-payment.

The legal framework supporting this remedy is broad and spans multiple statutes, including
the Hindu Adoptions and Maintenance Act, 1956, and is reinforced by judicial
interpretations of general property laws such as the Transfer of Property Act, 1882.
Although personal laws differ in their provisions, the judiciary has often stepped in to ensure
that maintenance awards are not rendered ineffective due to the absence of direct enforcement
tools.

However, the practical application of this remedy is not without challenges. Issues like
procedural delays, concealment of assets, lack of awareness, and jurisdictional limitations
often dilute its effectiveness. Furthermore, the absence of a centralized and uniform system
for enforcement creates inconsistencies in the relief granted across different cases and courts.

Despite these hurdles, the courts have shown increasing willingness to adopt a pro-
claimant, welfare-oriented approach. Landmark judgments have established that securing
maintenance through property is not only legally sound but also essential to uphold the
constitutional values of equality, justice, and dignity.

To make this remedy truly effective, several reforms are necessary—ranging from legal and
procedural changes to technological integration and awareness campaigns. Empowering
family courts, digitizing property records, and introducing strict penalties for non-compliance
are just a few of the many steps that can significantly strengthen enforcement.

In conclusion, maintenance as a charge on property represents the intersection of family law,

property rights, and social justice. It offers a powerful legal remedy that not only enforces
court orders but also restores balance and dignity in familial relationships, particularly for
those most at risk. Strengthening and streamlining this mechanism is not just a legal imperative
—it is a step towards a more just and humane society.

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 BIBLIOGRAPHY

Books:

1. Abu’l A'la Maududi

Towards Understanding Islam
Islamic Publications Limited, 2005.

2. M. A. Qureshi
Muslim Law in India and Abroad
Law Publishers, 2010.

Case Law:

1. Shah Bano Begum v. Mohammed Ahmed Khan, (1985) 2 SCC 556

Supreme Court of India. This case dealt with the issue of maintenance for a divorced
Muslim woman under Section 125 of the Criminal Procedure Code.

2. Danial Latifi v. Union of India, (2001) 7 SCC 740

Supreme Court of India. This case interpreted the Muslim Women (Protection of
Rights on Divorce) Act, 1986, and clarified the maintenance rights of divorced
Muslim women.

3. Shayara Bano v. Union of India, (2017) 9 SCC 1

Supreme Court of India. This landmark judgment declared Triple Talaq
unconstitutional and protected the rights of Muslim women.

Websites and Online Resources:

1. India Kanoon
www.indiankanoon.org
Accessed on: November 2023.
A comprehensive database of Indian case laws, including the judgment in Shah
Bano and Triple Talaq cases.

2. Islamic Law Resource Center (ILRC)

www.ilrc.org
Accessed on: November 2023.
A source for research on the application of Islamic law in personal matters, including
marriage and divorce.

Reports:

1. All India Muslim Personal Law Board (AIMPLB)

Muslim Personal Law: A Report on the Role of Personal Law in Contemporary India
AIMPLB, 2018.
A key report discussing the role of Muslim personal law in marriage, divorce, and
the status of Muslim women in India

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