A maintenance or alimony decree against a spouse who has quietly sold the flat, encumbered the plot and moved the savings is a decree against air. The law does not leave the applicant waiting for judgment while the asset base disappears: injunctions under Order XXXIX CPC, attachment before judgment under Order XXXVIII Rule 5 CPC, and allied provisions allow a Family Court to freeze the position while the litigation is decided. This article maps the tools and the proof each demands.
Why the problem is structural
Maintenance, alimony and allied matrimonial claims are, in execution terms, money claims. Unlike a suit for possession of a named property, they attach to the respondent generally, not to any particular asset — until a decree is passed and execution reaches specific property. In the interval, which can run for years, nothing in the substantive matrimonial statutes automatically freezes the respondent's assets. A spouse determined to defeat a future award therefore has both the motive and the window: sell the flat to a relative, mortgage the plot, shift the deposits. The answer lies in the interim machinery of the Code of Civil Procedure, which applies to Family Court proceedings.
The toolkit
| Tool | Provision | What it does | What it demands |
|---|---|---|---|
| Temporary injunction | Order XXXIX Rules 1 and 2 CPC | Restrains the respondent from selling, transferring, encumbering or parting with possession of identified assets during the proceedings | Prima facie case, real danger of alienation or of the decree being defeated, balance of convenience, irreparable harm |
| Inherent power | Section 151 CPC | Fills gaps where the facts do not fit the rules precisely but the ends of justice require a restraint | Used sparingly; the applicant must show why the standard rules do not cover the situation |
| Attachment before judgment | Order XXXVIII Rule 5 CPC | Requires the respondent to furnish security or suffer attachment of the property before any decree exists | Satisfaction that the respondent, with intent to obstruct or delay execution of the eventual decree, is about to dispose of or remove property |
| Lis pendens | Section 52, Transfer of Property Act, 1882 | Makes transfers during a suit concerning rights in specific immovable property subject to the result | Operates by law, but only where the proceeding directly concerns rights in that immovable property |
Injunction: the workhorse
Order XXXIX Rules 1 and 2 CPC are the provisions most often invoked. Rule 1 speaks, among other things, to property in dispute in danger of being wrongfully alienated, and to a defendant threatening to dispose of his property with intent to defraud creditors — language wide enough for a respondent manoeuvring to defeat a maintenance or alimony claim. The three classical requirements apply with full force:
Prima facie case
A genuine, arguable claim to maintenance or alimony on the pleadings — not proof of eventual success, but enough to show the claim is not frivolous and that the assets matter to its satisfaction.
Real risk of disposal
Demonstrated conduct: sale listings, broker correspondence, an agreement to sell, advances received, unusual withdrawals or transfers after the dispute arose. This is where most applications succeed or fail.
Balance of convenience
Restraining a sale pending litigation usually harms the respondent little if his case is honest, while an unrestrained sale can destroy the applicant’s claim entirely. Courts weigh this openly, and tailor orders — sometimes permitting a sale subject to deposit of proceeds.
Precision in the prayer matters. An order restraining alienation of "all assets" is vulnerable and hard to enforce; an order restraining alienation of a scheduled list — the flat by its address, the plot by its khasra number, named accounts — is neither. The applicant should put her best particulars of the respondent's assets on record at the outset, drawing on the affidavits of assets filed in the maintenance proceedings.
Attachment before judgment: the stronger, stricter remedy
Order XXXVIII Rule 5 CPC goes further than an injunction: it can compel security or fasten an attachment on the property itself before any decree exists. Precisely because it is drastic, the threshold is higher. The court must be satisfied that the respondent, with intent to obstruct or delay the execution of any decree that may be passed, is about to dispose of the whole or part of his property or remove it from the court's jurisdiction. Suspicion is not satisfaction; the applicant must plead and support specific facts evidencing that intent — the timing of the proposed sale against the course of the litigation, undervaluation, the identity of the proposed transferee, or steps to move funds beyond reach. Where the material is strong, attachment before judgment is the remedy that truly secures a money claim.
Two provisions that deserve a clear word
Section 27 of the Hindu Marriage Act, 1955 empowers the matrimonial court to make provisions in the decree with respect to property presented, at or about the time of marriage, which may belong jointly to both husband and wife. Where such property — commonly household articles and gifts of the wedding — is in the respondent's hands and at risk, interim protection can be sought in aid of the eventual Section 27 order. Its scope is confined to that category of property; it is not a general property-division power, and its full treatment lies outside this article.
Section 52 of the Transfer of Property Act, 1882 — lis pendens — binds a transferee who buys property during a suit in which rights to that immovable property are directly and specifically in question. Its limit is as important as its rule: a bare maintenance or alimony claim does not directly concern any specific immovable property, so lis pendens does not automatically protect the claimant against a sale during its pendency. That gap is exactly what a specific injunction or an attachment fills, and it is why experienced counsel never rely on lis pendens alone in matrimonial money claims.
Within DV Act proceedings there is a parallel, narrower protection: Section 19 permits the Magistrate to restrain the respondent from alienating or disposing of the shared household or encumbering it. That DV-specific remedy is examined in its own article on this site.
Practical sequence for the applicant
Identify the assets early from the affidavit of assets, revenue records, and the applicant’s own knowledge, and schedule them in the application.
Document the risk — screenshots of listings, broker messages, dated photographs of site boards — before confronting the respondent, since confrontation often accelerates the sale.
Choose the remedy to fit the proof: injunction where risk is shown; attachment before judgment where intent to defeat the decree can be demonstrated; both in the alternative where the material supports it.
Ask for workable orders: restraint on specified assets, or sale permitted only on deposit of proceeds in court — orders a court can grant without feeling it has sterilised a litigant’s entire estate.
For respondents, the converse holds: a transparent disclosure of assets and an undertaking not to alienate pending disposal frequently dissolves the application — and with it, an inference of bad faith that would otherwise colour the main case.
Frequently Asked Questions
Can a Family Court grant an injunction restraining sale of property?
Yes. Proceedings before the Family Court attract the procedure of the Code of Civil Procedure, and interim injunctions under Order XXXIX Rules 1 and 2 CPC are available where property in dispute is in danger of being wrongfully alienated or where the opposite party threatens to dispose of property with intent to defeat the eventual decree. The inherent power under Section 151 CPC supplements this where the situation does not fit the rules exactly.
Does lis pendens protect a wife who has only claimed maintenance?
Not by itself. Section 52 of the Transfer of Property Act, 1882 binds transfers made during a suit only where the suit directly and specifically concerns a right to the immovable property transferred. A bare maintenance claim is a money claim and does not of itself relate to any specific immovable property, so a transfer during its pendency is not automatically hit. That is precisely why a specific injunction or attachment matters in maintenance litigation.
What is attachment before judgment and when does it apply?
Under Order XXXVIII Rule 5 CPC, where the court is satisfied that the defendant, with intent to obstruct or delay execution of any decree that may be passed, is about to dispose of or remove property, it may direct him to furnish security or attach the property. In matrimonial money claims it is the stronger remedy, but it demands credible proof of intent to defeat the decree, not mere apprehension.
What evidence shows a real risk that assets will be sold?
Concrete indicators: the property listed on sale portals or with brokers, an agreement to sell or receipt of advance, sudden large withdrawals or transfers after the dispute began, public notices inviting buyers, or the respondent's own statements. Courts act on demonstrated conduct; a bald assertion that the spouse "may sell everything" seldom earns an order.