Customary intervention by the Panchayat leading to the wife living separately does not amount to a "judicial separation" under Section 3(7) of the U.P. Imposition of Ceiling on Land Holdings Act 1960.

Yashoda Nandam, J.

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 amounted to a "judicial separation" for the purposes of Section 3(7) of the U.P. Imposition of Ceiling on Land Holdings Act 1960 (hereinafter referred to as the Act). In Ramphal Singh Vs. IVth A.D.J. and Others, (1979) AWC 196 . 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 7th September, 1978. In the abovementioned 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 u/s 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, u/s 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 provision 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)

2. 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 continue to subsist even though certain legal obligations which a marriage involves remain suspended including that of conjugal cohabitation.

3. 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