Maintenance orders fail most often not because the amount is wrong but because collection is hard: the payer changes jobs, hides income, or simply stops paying. One of the least-used answers in the statute book is to tie the obligation to property. The Hindu Adoptions and Maintenance Act, 1956 (HAMA) and the Hindu Marriage Act, 1955 (HMA) both allow maintenance to be secured by a charge on immovable property, and the execution machinery of the civil and criminal codes allows arrears to be recovered from property in any event. This article maps those tools.
Why anchor maintenance to property
Income can be concealed; property is harder to hide. A salaried payer can resign, a businessman can show losses, but a flat, a shop or agricultural land stays on the record. Securing maintenance against property serves three distinct ends: it guarantees a fund for future instalments, it deters evasion because default puts the asset itself at risk, and — where a charge is created and noticed — it survives a transfer of the property to third parties.
The statutory tools, side by side
| Provision | Who it helps | What it does |
|---|---|---|
| Section 25, Hindu Marriage Act, 1955 | Spouse awarded permanent alimony in matrimonial proceedings | Permits the court to secure the gross or periodical payment, if necessary, by a charge on the respondent's immovable property. |
| Section 27, HAMA 1956 | Dependants claiming maintenance from a deceased Hindu's estate | Declares that the claim is not a charge on the estate unless created by will, decree, agreement "or otherwise" — so the charge must be sought and created. |
| Section 28, HAMA 1956 | Dependants whose source-estate is transferred | Lets the right be enforced against a transferee with notice of the right, or a gratuitous transferee; a bona fide purchaser for value without notice takes free. |
| Section 39, Transfer of Property Act, 1882 | Any person with a right to maintenance from the profits of immovable property | Mirrors the HAMA rule for transfers generally: the right follows the property into the hands of transferees with notice and gratuitous transferees. |
| Order XXI, CPC / fine-recovery machinery under the BNSS | Any holder of a maintenance decree or order in arrears | Attachment and sale of the defaulter's property to realise arrears, independent of any charge. |
Getting a charge created in practice
Charge versus attachment: two different shields
Attachment in execution
Available to every order-holder once arrears accrue. It reaches property the defaulter owns at that time, but gives no priority before default and no protection if the asset was sold earlier.
Charge created by decree
Created before default, it earmarks a specific property for the maintenance obligation, binds gratuitous transferees and purchasers with notice, and makes the asset a continuing security for future instalments — not only past arrears.
Points the paying side should know
- A charge is not automatic and is not punitive: courts weigh necessity, and an honest payment record is the best argument against security.
- A bona fide purchaser for value without notice of the maintenance right is protected; diligence in title searches cuts both ways.
- Security under Section 25 HMA can be varied — like the alimony itself — on a change of circumstances, through the statutory variation machinery.
- Consensual security (a registered agreement charging property or a fixed deposit under lien) is often the cleanest settlement term in mutual consent divorces, and courts routinely act on such undertakings.
This article explains the statutory framework in general terms. Whether a charge or security is appropriate in a given case depends on its facts; this is not legal advice.
Frequently Asked Questions
Is maintenance automatically a charge on the husband's property?
No. Section 27 of HAMA states the dependant's claim is not a charge on the estate of the deceased or any portion of it unless one has been created — by the will of the deceased, by a decree of court, by agreement between the parties, or otherwise. The claimant must therefore ask the court to create the charge, or secure it by agreement; it does not arise by operation of law.
Can a court order permanent alimony to be secured on property?
Yes. Section 25 of the Hindu Marriage Act empowers the court granting permanent alimony to order payment of a gross sum or periodical sums for a term not exceeding the claimant's life, and expressly permits the payment to be secured, if necessary, by a charge on the respondent's immovable property. The court weighs the parties' income, property, conduct and circumstances when deciding whether security is warranted.
What happens if the property is sold after a charge is created?
Under Section 28 of HAMA, where a dependant has a right to receive maintenance out of an estate and the estate or part of it is transferred, the right can be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous — but not against a transferee for consideration without notice. Registering the charge and placing the order on the public record is therefore critical protection.
Can arrears of maintenance be recovered from property even without a charge?
Yes. Arrears under a Family Court or magistrate's order can be recovered through the fine-recovery machinery, which includes attachment and sale of movable and immovable property, and a decree-holder under a civil decree for maintenance can levy execution against the judgment-debtor's property under Order XXI of the Code of Civil Procedure, 1908. A charge adds priority and follows the property; execution reaches whatever the defaulter owns when arrears accrue.