Two Children Limit For Panchayat Members Not Meant To Discourage Re-Marriage, Excludes Step-Children: Bombay High Court

A panchayat member with more than two biological children could be disqualified under the Maharashtra Village Panchayats Act, however, the member’s step children wouldn’t be a determining factor for the same, the Bombay High Court held.

The court said that the objective of the Section was to disqualify a panchayat member responsible for the birth of more than two children. Therefore, a woman cannot be disqualified because her spouse has two children from his previous wedlock.

According to Section 14(1)(j-1) of the Act - No person shall be a member of a panchayat, or continue as such, who has more than two children unless they were born before the cut-off date.

A division bench of Justices AS Chandurkar and Vrushali Joshi said, “It is not the object of the said provision to discourage re-marriage of a spouse who has more than two children from his/her previous wedlock.”

“The expression ‘two children’ used in Section 14(1)(j-1) of the Maharashtra Village Panchayats Act, 1959 in the context of a male ‘member’ would include all his children for whose birth he is responsible, irrespective of the fact that they were born from his previous and/or present wedlock.

In the context of a female ‘member’, it would include all children whom she has given birth to, irrespective of the fact that they were born from her previous and/or present wedlock. The expression ‘two children’ has direct nexus with the word ‘member’ as used in Section 14(1)(j-1) of the Act of 1959,” the court said.

Accordingly, the petition was disposed of and the court directed the matter to be placed before the single judge to be decided on merits.

The petitioner Khairunisa Chand was disqualified on the ground that she had more than three children after the cut-off date. She claimed that her husband Sheikh Chand had two sons from his earlier marriage and the duo had only one child together.

The Divisional Commissioner upheld the disqualification which Chand challenged in the High Court. Her counsel relied on the case of Girika Badamrao Pandit Versus State of Maharashtra & Others to claim that the disqualification was not valid as he had only one child from her wedlock.

However, after considering Ashok Balasaheb Chaugule Versus The State of Maharashtra’s case wherein the court considered children born from previous marriages as well, the single judge found that the expression ‘çhildren’ could not be adopted in a generic term and instead it ought to include all children whether from the present or earlier spouse living or no more and also including the step children. In view of such disagreement, the question was referred to the Division Bench.

The bench said that the word ‘person’ in Section 14(1) of the Act of 1959 would be the member himself and cannot include their spouse.

When the member of the panchayat is a male, he would be disqualified if he is responsible for the birth of more than two children, irrespective of the number of wed-locks, the court said and observed that the same rule would be applicable to a female member.

The court relied heavily on Javed & Others Versus State of Haryana & Others [(2003) 8 SCC 369] to observe that the determining factor for a panchayat member’s disqualification would be the number of biological children.

WRIT PETITION NO. 2482/2023

Case Title - KHAIRUNISA SHEIKH CHAND vs CHANDRASHEKHAR DAULATRAO CHINCHOLKAR & OTHERS

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