Kerala High Court
Riyasudheen vs Sulfiya on 20 February, 2025
2025:KER:14541
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 20TH DAY OF FEBRUARY 2025 / 1ST PHALGUNA, 1946
OP(CRL.) NO. 720 OF 2023
AGAINST THE ORDER DATED 13.07.2023 IN MC NO.115 OF 2019 OF
JUDICIAL MAGISTRATE OF FIRST CLASS ,CHITTUR
PETITIONER:
RIYASUDHEEN
AGED 30 YEARS
S/O. KAMALUDHEEN RAWTHER, RESIDING AT DHEEN MANZIL,
PERUMCHIRA, POTHENPADOM, MUTHALAMADA,CHITTUR, PIN -
678507
BY ADVS.
S.K.ADHITHYAN
ALTHAF NABEEL
RESPONDENTS:
1 SULFIYA
AGED 23 YEARS
D/O. ABDUL KHADER BISMI HOUSE, VELLANARA,
KOLLENGODE, CHITTUR, PALAKKAD DISTRICT, PIN - 678706.
2 UMMUKULSU
W/O. KAMALUDHEEN RAWTHER,
RESIDING AT DHEEN MANZIL, PERUMCHIRA,
POTHENPADOM, MUTHALAMADA, CHITTUR, PIN - 678507.
3 SALIM
S/O. KAMALUDHEEN RAWTHER,
RESIDING AT DHEEN MANZIL, PERUMCHIRA,
POTHENPADOM, MUTHALAMADA, CHITTUR, PIN - 678507.
4 MUSTHAFA
O.P.(Crl)No.720 of 2023
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S/O. KAMALUDHEEN RAWTHER, RESIDING AT DHEEN
MANZIL, PERUMCHIRA, POTHENPADOM, MUTHALAMADA,
CHITTUR, PIN - 678507.
5 RAZOOL,
S/O. KAMALUDHEEN RAWTHER, RESIDING AT DHEEN
MANZIL, PERUMCHIRA, POTHENPADOM, MUTHALAMADA,
CHITTUR, PIN - 678507.
BY ADV
JAYARAM P
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
20.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(Crl)No.720 of 2023
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J U D G M E N T
Dated this is the 20th of February, 2025
The petitioner herein is the 1st respondent in M.C.
No.115/2019, pending before the Judicial First Class
Magistrate Court-I, Chittur. He is aggrieved by Ext.P5
Order, which was one passed in modification of Ext.P3
Order. Several reliefs were sought for in the M.C.,
including a relief for declaration that the petitioner
in the M.C. (1st respondent herein/wife) is the
exclusive owner of the gold ornaments, which are kept
in locker No.49 of the Federal Bank, Kollengode
Branch. Along with the M.C., an interlocutory
application was filed, in which the Ext.P3 Order was
passed, which restrained the 1st respondent from
alienating the gold ornaments in the said locker.
Subsequently, Ext.P4 application was filed by the 1st
respondent/wife seeking modification of Ext.P3 Order,
under Section 25(2) of the Protection of Women from
Domestic Violence (in short, 'D. V. Act'). The same
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was allowed, and Ext.P5 Order was passed, as per
which, the 1st respondent/wife is permitted to operate
the locker.
2. Heard the learned counsel for the petitioner and
1st respondent. Perused the records.
3. Learned counsel for the petitioner submits that,
if the 1st respondent is permitted to operate the
locker, the gold ornaments kept therein are likely to
be taken away, which will defeat the subject matter of
the pending M.C, wherein the 1st respondent, herself,
had sought a declaration as regards her ownership over
the gold ornaments in the locker.
4. Learned counsel would point out that, going by
Section 18(e) of the 'D.V.Act', all what the
petitioner in M.C. can seek is a restraint Order from
alienating the assets, including the gold ornaments;
and not one, which will have the effect of enabling
the petitioner to appropriate the assets, pending
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litigation, especially when a declaration as to the
ownership over the asset is sought for.
5. Secondly, it was pointed out that, as per Section
25 of the 'D.V. Act', there should be a change of
circumstance, and what is contemplated is a
modification or revocation of an Order already passed.
Ext.P5 Order will not fit into that category,
according to the learned counsel. Nor is there any
change of circumstance, so as to invoke section 25.
The third aspect highlighted is that, the evidence in
the matter has progressed substantially, and
petitioner's evidence is over. There can be a
direction to dispose of the matter within a time
frame, so that there will be a quietus, after which,
the rightful incumbent can be permitted to operate the
locker, as also, to appropriate the gold ornaments
therein. On such premise, petitioner seeks Ext.P5
Order to be set aside.
6. Per contra, learned counsel for the 1 st respondent
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would submit that, the petitioner herein had admitted
the ownership of the 1st respondent over the gold
ornaments in the counter affidavit filed before the
trial court, which has been produced as Ext.R1(a)
before this Court. Specific attention of this Court is
invited to the pleadings in page no.17 of Ext.R1(a).
7. Secondly, it was pointed out that, if Ext.P5
Order is set aside, that will create a situation that
throughout the proceedings, the 1strespondent/wife will
be disabled from using the gold ornaments. Learned
counsel also highlighted the possibility of an appeal
and also the continuance of the interim Order, which
was in vogue during the original proceedings. On such
premise, the petitioner seeks the instant Original
Petition to be dismissed.
8. Having heard the learned counsel appearing for
the respective parties, this Court finds more force in
the submissions made by the learned counsel for the
petitioner. It is not disputed that the 1st respondent
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herein had sought for declaration of her ownership
rights over the gold ornaments in the locker. If that
be so, the subject matter of the property has to be
preserved. Ext.P5 Order has the potential of enabling
the 1st respondent herein to appropriate the gold
ornaments. Even though learned counsel for the
petitioner submits that, inventory can be taken, along
with the photographs and weight of the individual
items of gold ornaments, such a tedious exercise at
this belated stage is not recommended, inasmuch as I
am given to understand that the petitioner's evidence
in the M.C. is already over. The interests of both
parties will be protected, if there is a direction to
dispose of the M.C. within a time frame, whereafter,
the rightful incumbent can take the gold ornaments and
appropriate the same. Insofar as the possibility of an
appeal and the continuance of the interim Order, this
Court is of the opinion that, once the 1st respondent's
ownership is declared, there will be substantial
equity in favour of the 1st respondent in seeking an
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Order like Ext.P5, if required after photography and
also taking the inventory.
9. In the circumstances, Ext.P5 Order is set aside.
Ext.P3 Order will remain intact. There will be a
direction to the trial court to complete the trial and
dispose of M.C. No.115/2019 within a period of four
months from the date of receipt of a copy of this
judgment. The Original Petition is allowed as
indicated above.
Sd/-
C. JAYACHANDRAN
JUDGE
HKH/20.02.2025
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APPENDIX OF OP(CRL.) 720/2023
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PETITION FILED AS M.C.
NO. 115/2019 DATED 30/11/2019 OF THE
JFCM-I, COURT, CHITTUR
EXHIBIT P2 TRUE COPY OF THE PETITION FILED AS CMP.
NO. 868/2020 DATED 14/2/2020 OF THE
JFCM-I COURT, CHITTUR
EXHIBIT P3 TRUE COPY OF THE ORDER IN CMP NO.
868/2020 IN MC NO. 115/2019 DATED
15/2/2020
EXHIBIT P4 TRUE COPY OF THE PETITION FILED BY THE
1 ST RESPONDENT AS CMP NO. 2879/2023 IN
MC NO. 115/2019 OF JFCM-I, CHITTUR
DATED 13/07/2023
EXHIBIT P5 TRUE COPY OF THE ORDER IN CM.P. NO.
2879/2023 IN MC NO. 115/2019 DATED
13/07/2023
RESPONDENT EXHIBITS
EXHIBIT R1 (A) A COPY OF THE COUNTER STATEMENT FILED
BY THE PETITIONER IN THE ORIGINAL
PETITION IN M.C.NO. 115/2019 ON THE
FILES OF THE COURT OF JUDICIAL FIRST
CLASS MAGISTRATE-I, CHITTUR
