1992 (11) TMI 284

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....em Raj Son of Ram Sharrna Brahman, resident of Village Barawad. Jeet Singh, S/o Hem Raj and Smt. Ramo Devi wife of Jeet Singh Brahman, resident of Village Barawad party one and Smt. Maya Wati daughter of Nam Chand, resident of Village Chhaprauli second party with some of their relations are also present. Before the panch both parties stated that Smt. Maya Wati Devi had filed a case under Section 494/109, Indian Penal Code, against Hem Raj and others and continuance of criminal case shall ruin the family. Relatives of both parties have come and wish to resolve the dispute by mutual settlement. They want to enter into settlement and get it verified. Both the parties by agreement have entered into the following settlement which both the parties and their relatives have admitted before the Sarpanch and panchs and verified the same. The settlement is like this. Smt. Mayawati, who has filed a criminal case before a Magistrate at Meerut, shall get it dismissed. Hem Raj out of his property shall execute a sale deed in favour of Smt. Maya Wati Devi of two Bhumidhari plots Khasra numbers 157, 17 biswa and 159, 6 biswa 14 biswansis for her maintenance. Smt. Ramo Devi alone shall r....

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....id to be a "judicially separated wife" within the weaning of Section 3(7) of the Ceiling Act. That provision defines "family" as follows: 3(7). "family' in relation to a tenure-holder, means himself or 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). 5. Husband and wife may be living separately by consent due to various reasons. Such separate living may have been preceded by a family settlement or a panchayat or sanctioned by custom in the community. It may be due to desertion by the husband or due to certain valid reasons like cruelty the wife may be forced to live separately. Can these separate living be called "judicially" separated. 6. By the time the Ceiling Act was enacted the words "judicial separation " had acquired a definite meaning. Section 10 of Hindu Marriages 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 un....

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....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. 10. That leaves us to the question whether the consent recorded by the Nyaya Panchayat would be one within the meaning of the words 'judicially separated'. There could be no doubt that the U.P. Panchayat Raj Act, 1947 does not confer any jurisdiction on the Nyaya Panchayat to decide any matrimonial matter. The civil jurisdiction conferred under Section 64 relates to claim of money or claim for recover....

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....law courts. 12. The learned Counsel relied on a decision of a Single Judge of the Allahabad High Court. in Gangotri Devi v. State and others 1982 All. L.J. 103 where the learned Judge has expressed the view that the expression judicially separated cannot be understood in the technical sense of grant of decree for judicial separation. That was a case where in a suit for injunction from interfering with the peaceful enjoyment of certain properties by the wife against her husband the Court held that she was entitled to the land in dispute on the basis of her claim that she had separated from her husband. It was argued that her status as a legally separated wife had been recognised by the Court in the suit and that should be sufficient to take her out from the definition of family in Section 3(7).,If the facts were that there was already an order of court, and that was the basis for the decree the matter would be different but the learned Judge has not restricted the decision to the facts of that case but observed: 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....