The expression ‘judicially separated’ consists of two expressions i.e., “separated” and the others “judicially”. Separation may bepermanent by complete breaking of the ties or it may be provisional or temporary that is the temporary separation and step towards the process of complete breaking of ties of marriage by divorce and complete separation from each other. The temporary separation may be revocable or condonable or it may lead to permanent separation.
In Black’s Law Dictionary V Edition at page 762 expression ‘judicial separation’ has been defined as under :–
“A separation of man and wife by decree of Court, less complete than an absolute divorce. A “Limited divorce” or a divorce & mensa et thoro”.
“The expression “Divorce” has been defined in the Black’s Law Dictionary Vth Edition as under :–
Divorce: The legal separation of man and wife effected by the judgment or decree of a Court and either totally dissolving the marriage relation or suspending its effects so far as concerns the cohabitation of the parties Divorce a mensa et thoro/(In Latin) a divorce from table and bed, or from bed and board. A partial or qualified divorce by which the parties are separated and forbidden to live or cohabit together without affecting the marriage itself.
Divorce a Vinculo matrimoni:
A divorce from the bond of marriage. A total divorce of husband and wife dissolving the marriage tie and releasing the parties wholly from their matrimonial obligations.
The expression ‘separated’ is the past tense of separate. Separate means to disunite or to divide or to sever as per dictionary meaning.
The use of expression ‘judicially’ before separated qualifies the nature and the mode how separated in brought about. When we concentrate on this expression ‘judicially’ it lead to the necessity of involvement of an act of exercise of jurisdiction and discretion and judgment of judicial forum i.e., Court of Law. It means that separation must be the result of an act which involves the exercise of Court’s judicial power and grant of decree of the Court after application of its mind. The expression ‘Legal’ is a term of wide connotation. Legal means in conformity with the law. Thus considered in my opinion the expression ‘judicially separated wife or husband’ means and connotes the idea of a wife or husband separated judicially i.e., by under the act of the Court resulting into decree passed by the Court separating the two i.e. wife and the husband and as such the Ceiling Act does not recognise the separation of the wife or husband be it limited separation of bed or board or separation from the bond of marriage totally dissolving the marriage. The expression ‘judicial separated’ wife recognises the judicial decree as the proof of separation and not otherwise. The other question that remains is whether the term ‘judicially separated as used in the Act is to be interpreted as including or not complete break of marriage by divorce. The expression, “judicial separation” has been defined in the same dictionary I.e. Black’s Dictionary at page 762 to mean the separation of man and wife by decree of Court less complete than absolute divorce.
Whether the case of a divorced woman is included within the framework of judicially separated wife or not ? This question had arisen in the case of Darshan Prasad and another Vs. Civil Judge II, Gorakhpur and others, Supplement Volume 2 S.C.C. page 87 as to how the expression “judicially separated” wife should be interpreted and their Lordships observed as under :–
“It is important to note that the Hindu Marriage Act, 1938 had come into force on May 18, 1955. Section 10 of this Act provided for the judicial separation. u/s 10 of the Hindu Marriage Act either party to a marriage was entitled to present a petition to the District Court praying for a decree for judicial separation on any of the grounds specified in Sub-section (1) of Section 13 and in the case of wife also on any of the grounds specified in Sub-section (2) thereof as grounds on which a petition for divorce might have been presented. Thus in order to get a judicial separation, it was necessary to obtain a decree under the above provision and then alone it could be recognised as a judicial separation. The Ceiling Act, 1960 was enacted and brought into operation long after Hindu Marriage Act and as such the Legislature was fully aware of the meaning of judicially separated wife or husband while using this term in definition of “family” u/s 3(7) of Ceiling Act, 1960. It is further important to note that Sub-section (3) of Section 5 of the Ceiling Act, 1960 prescribes, while determining the Ceiling area, the land of adult son/sons who were themselves tenure-holders being excluded, but no such land is allowed to be excluded in the case of wife, even though she might be a separate tenure-holder. Thus, it is abundantly clear from a persual of the above provision that in the case of determining Ceiling area of the land belonging to a person, the land even if owned or possessed by his wife in her own right would have to be included in the land of the husband treating the wife as a member of his family. The only exception has been made in the case of judicially separated wife. It was contended by the learned Counsel for the appellant that a ‘wider meaning should be given to the term ‘judicially separated” wife to include a wife who may be living separately from her husband and agricultural land owned or possessed in lieu of her right of maintenance should be excluded from the ceiling limit of her husband- It is difficult for us to accept this contention in view of the clear provisions of the Ceiling Act, 1960 which apart from being a beneficial act for the landless has used the term ‘judicially separated’ wife after coming into force of the Hindu Marriage Act, 1955. This cannot be given a meaning to include a wife merely living separately from the husband but having not obtained a decree for judicial separation under the provisions of the Hindu Marriage Act, 1955.”
Similar question arose relating to construction of expression “judicially separated” as used in Section 3(7) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 in the case of Jeet Singh and Others Vs. State of U.P. and Others, . Their Lordships of the Hon’ble Supreme Court in this case have been pleased to over rule the decision of this Court in Gangotri Devi’s case reported in 1982 ALJ page 103. In the case of Jeet Singh (supra) their Lordships of Hon’ble the Supreme Court have been pleased to observe as under :–
“By the time the Ceiling Act was enacted the words “judicial separation” had acquired a definite meaning. Section 10 of Hindu Marriage Act, 1955 provides for “judicial separation” among Hindus. Under this provision read with Section 19 only a District Court (Civil Court) has jurisdiction to grant a decree for judicial separation. Parties governed by the Indian Divorce Act, 1869 may file a petition u/s 23 thereof for judicial separation before a District Court or the High Court. Mohammedan Law also recognizes a right to live separately without an obligation to have cohabitation with her husband though such claim can be made only in rare circumstances tike cruelty or that her life is unsafe or other strong grounds.”
Their Lordships further observed as under :
“The obvious intention of the provision in Section 3(7) of the Ceiling Act therefore is that a wife who is judicially separated shall have a right to keep the properties given to her as and in lieu of maintenance or otherwise during her separate living and correspondingly it shall not be included in the holding of her husband. But in order to have the benefit of this provision the parties shall prove that the wife is “judicially separated”.
Dealing with the expression judicially separated their Lordships further observed as under :–
“The word “separated” is qualified by the word “judicially”. Unless the separate living was a judicially ordered or recognized one it would not qualify for exclusion under the provision. The word “judicial” according to Webster’s 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 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.” In the context, therefore it means an act done in pursuance of an order or direction of a Court of competent jurisdiction. It is used in contrast to separate living by agreement of parties or at the intervention of mediators without the intervention of a judicial proceeding in a Competent Court of Law.”