Punjab-Haryana High Court
Jagat Singh vs State Of Haryana And Ors. on 4 February, 2002
JUDGMENT M.M. Kumar, J.
1. The short question which falls for determination in this writ petition is "whether a person having more than two living children could avoid disqualification as envisaged by Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994, by giving the child in adoption."
2. Undisputed fact unfolded in the pleadings of the parties are that respondent No. 3 was elected as Sarpanch of Gram Panchayat, Gorran in the election held on 16th March, 2000. The petitioner alleged that respondent No. 3 had filed a false affidavit with his nomination papers declaring that he was not disqualified by virtue of provisions made in Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994 (for short 'the Act'). He filed a petition before the Deputy Commissioner, Sonepat, challenging the election of the respondent No. 3 under Section 177 and prayed for his removal from the office of Sarpanch. The stand of the respondent before the Deputy Commissioner was that the third child born to the wife of the petitioner on 8th February, 2000 was adopted on 10th February, 2000 by his cousin Shri Surat Singh s/o Shri Mange Ram, who was 67 years of age and is a bachelor. The adoption deed was registered on 26th May, 2000. On the basis of the allegations made in the petition, the Deputy Commissioner marked an enquiry to the District Development and Panchayat Officer, who submitted his detailed enquiry report. Respondent No. 3 was given personal hearing and the Deputy Commissioner reached the conclusion that as a matter of fact, respondent No. 3 had incurred the disqualification because he was having more than two living children. He passed a detailed order directing removal of respondent No. 3 from the office of Sarpanch, Gram Panchayat, Gorran. Thereafter, respondent No. 3 filed an appeal before the Financial Commissioner and Secretary, Department of Development and Panchayat, Haryana, as provided by Section 177(2) of the Act. The appeal of respondent No. 3 was allowed on 6th December, 2000 and it was held that the Deputy Commissioner failed to appreciate the fact that there was adoption and after adoption, the child does not remain the child of respondent No. 3 and, therefore, the disqualification incurred came to an end. Aggrieved by the order dated 6th December, 2000 passed by the Financial Commissioner and Secretary, Department of Development and Panchayat, Haryana, the complainant has filed the present petition alleging that respondent No. 3 cannot escape the disqualification by giving the child in adoption.
3. Respondent No. 2 in his written statement has admitted the factual averment made by the petitioner. It has, however, been added that respondent No. 3 produced an unregistered adoption deed dated 10th February, 2000 before the District Development and Panchayat Officer on a plain paper and another registered deed dated 26th May, 2000 in the enquiry held by him. However, the District Development and Panchayat Officer was of the opinion that those documents were prepared only to circumvent the provision made in Section 175(1)(q).
4. Respondent No. 3 in his written statement has taken the stand that Section 175(1)(q) is liable to be: declared ultra vires of Article 14 of the Constitution. It has also been pointed out that a Division Bench of this Court, of which one of us is a member (J.L. Gupta, J.) in Jharmal v. State of Haryana (2001-3) 129 P.L.R. 85 decided on 8th March, 2001 has upheld the constitutionality of Section t75(1)(1) and has declared the election of a Sarpanch village Bhurianki, Tehsil Punhana, District Gurgaon as violative of Section 175(1)(q) of the Act as the Sarpanch has more than two living children. It is averred that the Supreme Court has stayed the operation of that judgment in S.L.P. No. 7527-7528 of 2001. On that basis, a request has been made to await the decision of the Supreme Court on the main question with regard to vires of Section 175(1)(q) because if Section 175(1)(q) is held to be invalid then the question of adoption would not arise.
5. We have heard Shri B.S. Rana, learned counsel for the petitioner, Miss Palika Monga, Assistant Advocate General, Haryana and Shri R.S. Bains, learned counsel for Respondent No. 3.
6. The primary contention of Shri B.S. Rana, learned counsel for the petitioner is that the basic object of Section 175(1)(q) is to arrest accelerating rate of growth of population in this country, which is problem No. 1 confronting all of us. If the provisions are allowed to be circumvented in this manner, then the very purpose for which the legislation was enacted would stand defeated. He also points out that the stand taken by respondents No. 2 in para 9 of its written statement clearly substantiates that there was firstly unregistered adoption deed dated 10th February, 2000 and thereafter a registered adoption deed dated 20th May, 2000. Both the deeds were aimed at escaping the consequences flowing from disqualification envisaged by Section 175(1)(q).
7. Miss Palika Monga, learned Assistant Advocate General, Haryana has argued that the provision of Section 175(1)(q) is an effort to encourage the same family norms and it is a policy of the legislation, which cannot be questioned unless it is shown that it violates Article 14 or other provision of Part-III of the Constitution, therefore, she argued that the disqualification provided by Section 175(1)(q) is neither ultra vires nor arbitrary.
8. Shri B.S. Rana, learned counsel for respondent No. 3 has submitted that as long as an adoption is permitted by an enactment of valid legislation namely Hindu Adoption and Maintenance Act, 1956, the Court cannot go behind the legality of adoption unless it is challenged by the parties to the adoption deed. According to the learned counsel petitioner has no business to challenge the adoption deed and interfere in the personal affair of respondent No. 3. He further argued that if respondent No. 3 can validly avoid the consequences flowing from Section 175(1)(q) by virtue of adoption deed then it cannot be said that the third child continued to be his child.
9. Before considering the respective submissions of learned counsel for the parties, it is appropriate to notice Section 175(1)(q), which read as under:
"175. Disqualifications.-(1) No person shall be a Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who-
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(q) has more than two living children:
Provided that a person having more than two children or upto the expiry of one year of the commencement of this Act, shall not be deemed to be disqualified."
10. A plain reading of Section 175(1)(q) makes it obvious that the intention of the legislation is to provide simply that no one, who has more than two living children shall be a Sarpanch or a Panch of a Gram Panchayat or a member of the Panchayat Samiti or Zila Parishad or continue as such. The legislation does not permit any exception to this rule especially when such an exception could have been carved out because the legislature was aware in 1994 that provision for adoption exists in the Hindu Adoption and Maintenance Act, 1956. It appears to us that it was for that reason that the expression more than two living children has been used, which would include even the child given in adoption. Moreover at the back of the provision is public policy namely to arrest the fast growth of population in this country.
11. The argument advanced by Shri Bains that after adoption, the child does not remain in the family of the natural father and on that account such a person would not incur disqualification as he would not have more than two living children in his family. This argument is devoid of any merit for the simple reason that the expression "more than two living children would include even the children who have been given in adoption. Had the legislature intended to exclude the children given away in adoption, another proviso could have been added to Sub-section (g). Therefore, this submission is rejected.
12. It is also worthwhile to mention that whenever a citizen has attempted to misuse the provisions of personal law for the purposes of circumventing any public policy or any other proviso of law, the Supreme Court has atways-dispproved such an attempt. In the case of Sarla Mudgal v. Union of India 1995(3) S.C.C. 635 the Supreme Court was seized of a situation of contracting a second marriage and to justify the same on the ground that polygamy is permissible in Islam. Disagreeing with the contention raised on behalf of such a convert, the Supreme Court held that the second marriage would be void because the first marriage was not dissolved even by conversion of the husband. Providing guidance about the approach to be adopted in such like cases and interpreting Section 494 of the I.P.C., their Lordships of the Supreme Court observed as under:
"23. We also agree with the law laid down by Chagla, J. In Robasa Khamim v. Khodadad Irani case wherein the learned Judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equity and good conscience. A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute "where the parties are Muslim" and, therefore, the rule of decision in such a case was or is not required to be the "Muslim Personal Law". In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provision of Section 494 IPC. [Emphasis (in Italics) ours]
24. Looked from another angle, the second marriage of an apostate-husband would be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry without getting his earlier marriage under the Act dissolved. The second marriage after conversion to Islam would, this, be in violation of the rules of natural justice and as such would be void.
25. The interpretation we have given to Section 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. The result of the interpretation, we have given to Section 494 IPC, would be that the Hindu law on the one hand and the Muslim law on the other hand would operate within their respective ambit without trespassing on the personal laws of each other. Since it is not the object of Islam nor is the intention of the enlightened Muslim community that Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again, the Courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law."
13. The above observation of the Supreme Court has also been reiterated approved in the case of Lily Thomas v. Union of India, 2000(6) S.C.C. 224. Therefore, on interpretation of Section 175(1)(q) we cannot hold that by giving the child in adoption, respondent No. 3 would cease to have more than two living children.
14. The other argument of the learned counsel for respondent No. 3 is that we should wait for the decision of the Supreme Court in S.L.P. No. 7527-7528 of 2001, which is directed against the Division Bench judgment of this Court in the case of Jhar-mal v. Stale of Haryana, (2001-3)129 P.L.R. 85 decided on 8th March, 2001 because the judgment of the Division Bench has been stayed. This argument also does not require serious consideration because staying operation of the judgment of the High Court would not amount to deleting Section 175(1)(q) from the Statute book. The Division Bench in Jharmal's case (supra) has upheld the vires of the Act. The Division Bench order has been stayed by the Supreme Court without declaring the provisions of the Act ultra vires. Therefore, the argument is devoid of merit and we have no hesitation to reject the same. No other submission has been made.
15. For the reasons recorded above, this writ petition succeeds and the same is al lowed. Annexure P.2 dated 11th December, 2000 passed by respondent No. 1 is quashed and respondent No. 3 is declared to be disqualified to hold the office of Sarpanch Gram Panchayat, Gorran and respondent Nos. 1 and 2 are directed to remove respondent No. 3 from the office of Sarpanch within a period of two months of the date of receipt of copy of this order.
Sd/- J.L. Gupta, J.