1. The Petitioner has challenged the order of the Family Court, Bandra, Mumbai, dated 7th July 2010 granting an injunction against him along with his son from dispossessing Respondent No.1 herein. The Petitioner is the father-in-law of Respondent No.1. Respondent Nos.1 and 2 are wife and husband. They have been married and since their marriage, have been residing in the disputed property which is a flat at Mulund, Mumbai (the suit flat). The wife claims that it is her matrimonial home. The wife filed the petition in the Family Court under Section 7(1) Explanation (d) of the Family Courts Act, 1984 (FC Act) for several injunctions in respect of the suit property which is her matrimonial home. She has claimed that she has a right to live there and co-habit with her husband. She has applied for injunction against her husband as well as her father-in-law restraining them from transferring, alienating, etc. the suit flat and from dispossessing her.

2. The relief under Section 7(1) Explanation (d) of the FC Act is the jurisdiction of the Court in a Petition for injunction arising out of a marital relationship. The injunctions sought for the matrimonial home are, therefore, claimed to be the injunction for the property which arises out of the marital relationship. The Petition is also filed under Order XXXIX Rule 1 of the Code of Civil Procedure (CPC) for interim injunction as well as under Section 151 of the CPC for exercise of inherent powers of the Court. It may at once be mentioned that the petition is not titled to be filed under any provisions of the Protection of Women from Domestic Violence Act, 2005 (DV Act), though the suit property is claimed to be the matrimonial home of the wife.

3. Paragraph 5 of the Petition shows that the husband and the father-in-law of the wife purchased the suit flat. The sale agreement stands in the name of the father-in-law for the sake of convenience and respect, but both the husband as well as the father-in-law are joint owners.

4. Paragraph 6 of the Petition shows that both the Respondents are Applicants for a loan of the part of the purchase price but that EMIs are exclusively paid by the husband from his account and the husband also claims benefits of deductions under Sections 80 (c) and 24 of the Income-tax Act. The paragraph also shows that a large part of the purchase price of Rs.25 Lakhs was made as down payment but does not show how that down payment was made or whether the father-in-law or the husband made that down payment. Out of the purchase price of Rs.37 Lakhs, Rs.25 Lakhs are shown as down payment and Rs.12.5 Lakhs are shown to be the loan payment. Hence the loan is shown to be taken for a small portion of the purchase price for which EMIs are stated to have been paid by the husband.

5. The averment in paragraph 7 of the petition shows that there is an HUF which owns certain ancestral properties in Deoghar, Jharkand. It shows that the husband has a share therein as a member of the HUF. It also shows that both the husband and the father have sold some of the HUF land for purchasing the matrimonial home so that the matrimonial home came to be purchased out of sale-proceeds of the HUF property being the land in Jharkand. The wife, therefore, seeks to claim that the matrimonial home is the HUF property.

6. The first principles relating to the HUF must be understood. The fact that a Hindu belongs to HUF has to be presumed. However, the fact that the HUF has joint family properties cannot be presumed and must be proved. Therefore, the husband may be taken to be a member of the HUF. However, the sale of HUF properties cannot be presumed and has to be shown. Further the matrimonial home being purchased from the sale of the HUF property must also be proved and cannot be presumed.

7. The wife must prove the fact of sale of HUF properties of her husband. In the Interim Application, the wife must prima facie show such sale which would be conclusively proved by her at the trial.