Yashoda Nandan, J. - (1.) -When these two petitions came up for hearing before a learned single Judge he noticed that there was a divergence of opinion between two learned Judges of this Court on the question as to whether a wife who was living separately from her husband as a consequence of customary intervention by the panchayat amount-to a "judicial separation" for the purposes of S. 3 (7) of the U. P. Imposition of Ceiling on Land Holdings Act 1960 (hereinafter referred to as the Act). In Ramphal Singh v. IVth Addl. District Judge (1979 All WC 196): (1979 All LJ 195) M. P. Mehrotra, J. has taken the view that "it is obvious that a customary intervention by the panchayat leading to the wife living separately cannot be termed as a judicial separation". A contrary opinion was expressed by V.K. Mehrotra, J. in Civil Misc. Writ No. 4953 of 1975 (Ram Prasad v. The State) decided on 7-9-1978 . In the above-mentioned decision while dealing with the question, V. K. Mehrotra, J. observed as follows:- "The Hindu Marriage Act, 1955, codified the law relating to Hindu marriages and, inter alia, provided for judicial separation under Section 10 ............ Thus, the concept of separation, in so far as Hindu marriages were concerned through intervention of Court, came to be covered by statutory provisions when the Hindu Marriage Act, 1955, was enacted. However, under Section 29 (2) of the said Act, it has expressly been provided that nothing contained in the Act should be deemed to affect any right recognised by custom or conferred by any special enactment to obtain dissolution of Hindu marriages whether solemnised before or after the commencement of the Act. It is clear from the aforesaid pro-vision that any dissolution of a Hindu marriage in a manner permitted by custom or in a manner contemplated by any special enactment would be a separation recognised by law. In this background, it would be legitimate to take the view that the words "a judicially separated wife" in Section 3 (7) of the Ceiling Act, should be held to cover cases of all separations between a Hindu husband and a wife which will be recognisable as a legal separation. Such separation may be brought about under the specific provisions of the Hindu Marriage Act, 1955 or in a manner recognised by any custom or any special enactment as contemplated by Section 29 (2) of the said Act. Therefore, in judging the question whether a wife separated from her husband is to be treated as a judicially separated wife for purposes of Section 3 (7) of the Act, the authorities under the Act have to recognise a separation between a Hindu wife and husband brought about either under the provisions of the Hindu Marriage Act, 1955 or in a manner recognised by the custom applicable to them or under the provisions of any special enactment. It cannot be confined to the separation brought about by recourse to the provisions in that regard contained in the Hindu Marriage Act, 1955 as submitted by the learned Standing Counsel," (Emphasis supplied) A perusal of the passage quoted above discloses that V.K. Mehrotra, J. omitted to notice that the law draws a clear distinction between a "dissolution of marriage" and a "judicial separation". While a "dissolution of marriage" snaps asunder the marriage ties between a husband and his spouse, "judicial separation" on the other hand merely permits the parties to a marriage to live apart. During the period of judicial separation a marriage continues to subsist even though certain legal obligations which a marriage involves remain suspended including that of conjugal cohabitation.
(2.) When the case came up for hearing before us in the first instance, we gave time to the counsel for the parties to point out to us any text book dealing with the subject or any case law wherein it has been laid down that there had ever subsisted any institution like judicial separation by custom amongst the castes or tribes of India professing the Hindu or any other religious faith. Learned counsel for the parties frankly conceded that they had not been able to find any material in support of the proposition that there has ever been any customary law permitting judicial separation while the marriage tie subsisted amongst any of the communities in this country. It is thus clear that the expression "judicially separated wife" for the purposes of Section 3 (7) of the Act does Bot embrace within its ambit the idea of a separation between a husband and a wife by mere custom.
(3.) Section 3 (7) of the Act which uses the words "judicially separated wife" itself, in our opinion, contains a complete answer to the question that has arisen for consideration as a consequence of the conflict of opinion in the two decisions mentioned above. The legislature explicitly qualified the words "separated wife" by the use of the expression "judicially". The word "judicial", according to Websters New Twentieth Century Dictionary, means "allowed, enforced or set by order of a judge or law court". According to Shorter Oxford Dictionary, the word "judicial" means "of (used as an adjective of) or belonging to judgment in a court of law, or to a judge in relation to his function; pertaining to the administration of justice; proper to a legal tribunal; resulting from or fixed by a judgment in court". A "judicial separation" consequently must of necessity be brought about through the intervention of a judicial act as a consequence of legal proceedings in a competent court of law. The employment of the word "judicial" rules out the idea of a legal separation through the intervention of a oanchayat etc. according to the custom, if any, prevalent in a community. The conclusion arrived at is strengthened by the provisions of the Hindu Marriage Act, to which a reference has been made by V. K. Mehrotra, J. Section 4 (a) of the above mentioned Act provides that: "4. Save as otherwise expressly provided in this Act:- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act". Section 10 of this Act expressly deals with the subject "judicial separation" and consequently assuming that there was any custom of legal separation existing amongst any castes or tribes or those practising any religious belief in this country by reason of Section 4 (a) of the Hindu Marriage Act, it ceases to have any effect. Section 29 (2) of the Hindu Marriage Act, on which V. K. Mehrotra, J. has placed some reliance enacts as follows:- "Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of this Act". This provision saves only dissolution of a Hindu marriage brought about as a consequence of some prevailing custom. It expressly omits to make a mention of 'judicial or 'legal separation.;