Prolonged separation in marriage can constitute grounds for divorce, evidencing irretrievable breakdown, while claims for return of marital assets must be substantiated with evidence.

JUDGMENT :

SHOBA ANNAMMA EAPEN, J.

1. The husband is in appeal against the common judgment in two Original Petitions. Since the parties are the same, the above Mat.Appeals are being heard together and disposed of by this judgment.

2. Mat. Appeal No. 53 of 2014 is filed challenging the dismissal of the petition for divorce in O.P.No.261 of 2012 filed by the husband under Section 10 (i)(ix) and (x) of the Divorce Act, 1869 .

3. Mat.Appeal No.5 of 2014 is filed challenging the order passed in O.P.No.553 of 2012 filed by the wife for return of 50 sovereigns of gold ornaments and money.

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

5. The marriage between the parties was solemnized on 18.05.1970 and two children, a girl and a boy, were born in their wedlock. The husband and wife were living separately from 19.05.84. The girl child was with the husband and the boy was with the wife. Divorce was sought on the ground of cruelty and desertion. The husband alleged that, in 2010 he had filed a petition for restitution of conjugal rights as O.P.No.1179 of 2010 but withdrew the same in the year 2010 itself, finding that the wife is not willing to stay with the husband. Thereafter in 2012 he filed the petition for divorce. In the same year the wife filed the petition for return of gold ornaments and money. The husband alleged that the wife started living separately, abandoning the husband. Though several efforts were made by the husband for reconciliation, the wife was adamant and did not return to the matrimonial home. After more than 20 years of separation, the husband sought for divorce under cruelty and desertion.

6. The wife contended that the husband and his family members treated the wife with mental and physical cruelty. The wife was given 50 sovereigns of gold ornaments and Rs. 25,000/- as patrimony. A further claim of 5000 was also made, towards the cost of household articles listed out in Schedule ‘B’ of the petition. Few months after marriage on the demand of the husband’s family, 14 cents of property with a building was conveyed by her father in her name. On 18.05.84 the husband abused and assaulted her and threatened to kill her. On 19.05.84 her brother and uncles came to her matrimonial home and took her home to attend her brother’s marriage on 20.05.84. Though the husband and his family members were invited for the marriage, they did not attend the wedding. While leaving the matrimonial home, they permitted her to take only the younger child and kept the daughter away from the wife. The wife alleged that the conduct of the husband made it impossible for the wife to continue residence with him. She claimed that the gold and money given by her family was appropriated by the husband. Thus she filed a petition for return of gold and money. She also sought for dismissal of the petition for divorce.

7. We have heard Sri Jacob Pallath, learned counsel for the appellant-husband; and Smt. Monisha K.R, learned counsel for the respondent-wife.

8. First of all, we shall consider the question whether the husband is entitled to a decree for divorce. There is dispute between the parties regarding the date of marriage and date of separation. According to the wife, the marriage was on 18.05.1970 and the husband contends that the date of marriage was on 02.01.1970. The date of separation as claimed by the wife is 19.05.1984, and according to the husband is 02.01.1986. No document has been produced to prove the date of marriage. While the husband was examined as PW1 he said that he was not sure about the date of marriage but deposed that the wife went on the previous day of the marriage of her brother. Per contra, the wife has stated that she left the matrimonial home on the previous day of her brother’s marriage, which was on 20.05.1984. On the basis of the evidence adduced, the family court has found that the date of marriage is on 18.05.1970 and she left the matrimonial home on 19.05.1984. We do not find any r