R. M. Sahai, J. - (1.) FORSAKEN by her husband due to disease of Leokoderma and incapability to beget children the petitioner resigned to her fate which evoked the sympathy of her aunt-in-law who executed a will in favour of petitioner of her share, which had devolved on her after the death of her husband.
(2.) IN 1959, after her aunt's death, opposite party no. 3, petitioner's husband, who had four children with another wife, tried to grab the property which forced the petitioner to seek remedy of injunction which was decided in terms of compromise on 13-8-1959, much before the Ceiling Act was enforced in the State, and petitioner was accepted tenant of land bequeathed in her favour. But her misfortunes were not to come to an end. What she could protect from her husband became subject-matter of proceedings under U. P. Imposition of Ceiling on Land Holdings Act. In 1974 notices under Sec. 10 (2) was served on her husband which due to stay order passed by this Court could not proceed till 1976. When stay order was vacated U. P. Imposition of Ceiling on Land Holdings Act had been amended by U. P. Act 20 of 1976. Therefore, the Prescribed Authority issued fresh notice to the opposite party. The validity or invalidity of the second notice is not necessary to be gone into in this petition but petitioner having come to know that her land has also been included filed an objection claiming that she separated from her husband long ago, therefore, her land could not be included in his holding. The plea found favour with the Prescribed Authority but in appeal filed by the State, the appellate authority had feelings for the petitioner but finding himself helpless as Judicial separation recognised under Hindu Law is one contemplated under Sec. 10 of the Hindu Marriage Act, he declared the area held by petitioner as surplus This left petitioner without any land. Whatever was given to her by aunt-in-law was taken away by State. This hardship of the petitioner has evoked the sympathy and conscience of this Court which is a primary factor while exercising equity jurisdiction under Article 226 of the Constitution of India. It is true that equitable consideration cannot override the law, but if there is slightest scope in the legal phraseology then it is bound to be construed in favour of a person who is subject of hardship. To appreciate the implication of the controversy which has arisen it is necessary to quote the definition of 'family' as contained in sub-section (7) of Sec. 3 of the Act : 'Family' in relation to tenure-holder means himself, herself and his wife, or her husband as the case may be, (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters) ; A tenure holder has been defined under clause (17) of sub-section (3) as the holder of a holding and 'holding' has been defined in sub-section (9) as meaning 'the land or lands held by a person as bhumidhar, sirdar, Asami......
(3.) THE question of judicial separation, therefore, arises in relation to a Bhumidhar, Sirdar or Asami. Such a person may be Hindu or a Muslim or Christian or of any other caste. Can the expression 'judicially separated' therefore, be understood in the technical sense as used in Section 10 of the Hindu Marriage Act as has been held by the appellate authority or in wider sense descriptive of a state of affairs between husband and wife. A judicial separation means suspension of the relationship between husband and wife. It is not an annulment of the marriage. In other words they continue as husband and wife although they do not discharge their marital obligations. THEre is no provision like Sec. 10 of the Hindu Marriage Act in Muslim Law or Indian Christianity Act. If the words 'judicially separated' are understood as in Section 10 of Hindu Marriage Act, then obviously it would apply only to Hindus and not to Muslims or persons of other religions. Such a construction cannot be accepted particularly when the legislature deliberately did not use the words 'Judicially separated' as in Hindu Succession Act. The expression judicially separated comprises of two words. 'Judicially' and 'separated'. Separation between husband and wife may take place in numerous ways, for instance desertion by husband or the wife, or being cruel to her which may force her to live separately from him. But it is not every separation which is recognised by the Ceiling Act. It should be judicial. It has been seen above that the word 'Judicial Separation' cannot be understood in technical sense of grant of decree under Sec. 10 of Hindu Marriage Act. The word 'Judicial' according to Chambers dictionary means, 'arising from process of law.' It has at times been contrasted with administrative, ministerial or executive.;