IMPORTANT POINT
Prolonged separation and lack of cohabitation constitute grounds for divorce, while the burden of proof for property claims lies with the claimant.

JUDGMENT :

SHOBA ANNAMMA EAPEN, J.

The above Mat. Appeals are filed challenging the common judgment dated 16.01.2014 in O.P Nos. 16, 20 and23 of 2013 of the Family Court, Pala.

Mat.Appeal Nos.229 of 2014 and 337 of 2014 are filed by the husband and wife respectively, aggrieved by the judgment in O.P No. 20 of 2013 filed by the wife against the decree for return of money and gold ornaments.

Mat. Appeal No.240 of 2014 is filed by the husband against the dismissal of his O.P No. 16 of 2013 for declaration of title and injunction.

Mat Appeal No. 539 of 2014 is filed against the dismissal of O.P No. 23 of 2013 filed by the husband for divorce.

For the sake of convenience, the parties are referred to as ‘husband’ and ‘wife’.

2. The brief facts leading to the case are as follows:-

The marriage between the parties was solemnized on28.12.1998. A male child was born in the wedlock. After marriage, the husband went to Gulf country in connection with a job. According to the husband, they lived together only for a short period. The wife did not have any interest in physical relationship with the husband. When the wife came to know that the husband is coming to India in May, 2010, she filed a complaint raising false allegations against the husband due to which the husband had to return to Dubai. Several other complaints were also filed by the wife against the parents of the husband and they were threatened by the wife. Though the husband had invited the wife to come to Dubai, she refused to do so. Though a petition was filed for restitution of conjugal rights, the wife was not ready and willing to join the husband. The wife thereafter filed a petition for police protection, and thus put the husband and his family in difficulty. Earlier the husband filed O.P No. 1282 of 2010 before the Family Court, Ettumanoor for divorce, which was settled between the parties. The wife failed to fulfill the terms of settlement. The wife was behaving in such a manner that it was causing mental agony to the husband. The marriage between the husband and the wife became irretrievably broken and hence the husband filed a petition for divorce (O.P.No.23/2013).

3. The wife denied the allegation of cruelty-mental and physical. According to her, her parents had spent a substantial amount of money on a computer course for the husband. Thereafter, he was sent to Dubai along with wife’s brother-in-law. After the husband got employment in Dubai, the in-laws started harassing her demanding more money. By utilising the amounts given by the wife, the husband purchasedseveral properties in his name, whereas only one property is purchased in the joint names of the husband and wife. While the husband was abroad, the father-in- law misbehaved and sexually abused the wife. As forced by the husband, the wife constructed a residential building in the property which was in the joint names of the husband and wife, by spending Rs.18,00,000/- and started residing there. The wife claims to have suffered physical harassment at the hands of her husband’s parents. Thereafter, she filed several complaints before the police under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The learned Magistrate passed an order restraining the husband and his parents from doing domestic violence against the wife and also restraining them from alienating the properties. Thereafter, settlement was arrived at between the parties and she was forced to execute a document in favour of the husband. The wife attempted to contact the husband over phone, but he refused to talk and the harassment of the in-laws continued. Hence, the wife alleged cruelty by the husband and prayed for the dismissal of the divorce petition.

4. The husband also filed a petition for declaration and injunction (O.P.No.16/2013) against the wife in relation to an item of property. According to the husband, a property admeasuring 29.20 Ares were purchased in 2005 in the joint names of the husband and wife by utilising the mo