The main legal point established in the judgment is that in matrimonial disputes, the Court will consider the possession of the property, the conduct of the parties, and the dissolution of the marriage in determining the entitlement to injunction.

Shaffique, J.

This original petition is filed challenging Ext.P9 order dated 20/8/15 in IA No.1029/15 in OP No.534/15. The said application was filed by the petitioners herein seeking for an injunction restraining the respondents from evicting the petitioners from the petition schedule property and building thereon and not to disturb the peaceful enjoyment of the property.

2. The short facts involved in the dispute arises out of a matrimonial issue between first petitioner and first respondent. The first petitioner is the wife and petitioners 2 and 3 are the minor children. OP No.534/15 was filed for recovery of gold ornaments, money and for past maintenance. Apprehending that the petitioners will be evicted from the petition schedule property, the above application was filed. Petitioners contended that the first petitioner was the legally wedded wife of the 1st respondent and their marriage was solemnized on 31/8/1988. It is contended that they have got every right to reside in the matrimonial home. It is alleged that the marital life became strained on account of the mental and physical cruelty meted out by the first respondent. It is further contended that on 30/9/2013, first petitioner was brutally manhandled and she was forcibly evicted from the petition schedule property. She filed a complaint before the Women's Commission and police authorities and as per their direction, they have been residing in the building w.e.f. 28/2/2015. It is apprehending that she will again be forcefully evicted, the above application was filed. An interim injunction was initially granted.

3. The respondents filed their objection to the original petition and raised a counter claim seeking eviction of the petitioners from the petition schedule property and for recovering possession. It is further contended that 1st respondent filed OP No.1894/2013 seeking for divorce on the ground of cruelty and adultery. An ex parte decree for dissolution of marriage was obtained on 30/6/2014. Respondents contended that she has no right over the petition schedule property. The Family Court while considering the question as to whether a temporary injunction order could be granted in the matter, dismissed the application after vacating the interim injunction already granted.

4. Learned counsel for the petitioners submits that the Court below ought to have found that petitioners were in possession of the petition schedule building and the respondents had even filed a counter claim seeking to restore possession of the building. In such circumstances when the possession is admitted, there is no reason for the Family Court to have vacated the interim injunction granted in the application. It is contended that when possession is the only criteria to be decided, the Family Court ought to have granted the interim injunction. Further, she is residing in her matrimonial home and the right of residence has to be protected.

5. On the other hand, learned counsel appearing for the respondents submits that the application for interim injunction was filed in a malafide manner. Ext.P1 is the said application. In the said application, it was contended that on 30/9/2013, she was forcibly evicted from the petition schedule property. At the time of filing the original petition, she was not in lawful possession as alleged. Though, it is alleged that she filed complaints before the Women's Commission and police authorities and as per the directions of the said authorities, she entered into the petition schedule property and building, the argument of the learned counsel is that it is after obtaining an interim injunction from the Family Court in IA No. 1029/15 that she had trespassed into the petition schedule building and it is in the said circumstances that the petitioners had to seek for restoring possession by raising a counter claim. It is contended that when the fact of her not being in possession is admitted, there was no reason to grant an injunction as sought for and the