Gujarat High Court
Zala Punjajee Javanjee vs State Of Gujarat & 3 on 8 July, 2015
Equivalent citations: AIR 2015 GUJARAT 159
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/2484/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2484 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ZALA PUNJAJEE JAVANJEE....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR PS CHAUDHARY, ADVOCATE for the Petitioner(s) No. 1
MS. VRUNDA SHAH, A.G.P. for the Respondent(s) No. 1 - 2
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 08/07/2015
ORAL JUDGMENT
1. By the present petition filed under Article 226 of the Constitution of India, the petitioner has challenged the orders at Annexure-A whereby the petitioner is held to be disqualified to continue as member of Tapodi Gram Panchayat on the ground that the petitioner has more than two children.
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2. It appears that the petitioner was issued show cause notice dated 2.3.2013 by respondent No.4 - Taluka Development Officer stating that the petitioner has six children and his last child named Darbar Lakhubha was born on 20.7.2009 on account of which he incurred disqualification under section 32 of the Gujarat Panchayats Act, 1993 ("the Act") to continue as member of the Gram Panchayat. The petitioner replied to the said show cause notice mainly stating that out of six children, 5 children were born out of the wedlock with his first wife named Maniben who died on 30.3.2005 which was prior to the Amending Act, 2005 came into force and, thereafter, only one child was born out of the second marriage which was not sufficient to disqualify him.
3. The respondent No.4 however held that since the petitioner became father of 6th child after the Amendment Act of 2005, the petitioner incurred disqualification under section 30(m) of the Act. Based on such finding, the petitioner was ordered to be removed as member of the panchayat by treating him disqualified in exercise of the powers under sec. 32(2) of the Act.
4. Learned advocate Mr. Chaudhari appearing for the petitioner submitted that the petitioner had five children before clause (m) was inserted in section 30 of the Act by Amendment Act of 2005 and till the Amendment Act, 2005 came into force, the petitioner was not disqualified to be a member or continued to be member even though the petitioner had five children. Mr. Chaudhari submitted that the first wife of the petitioner expired on 23.7.2005 and long time thereafter, the petitioner entered into second marriage with one Sangitaben and out of such second marriage, she delivered a child after the Amendment Act came into force, so, the petitioner could not be said to have incurred disqualification under sec. 30(m) of the Act. Mr. Chaudhari submitted that the legislature clearly intended more than two children to a couple which could be seen from the explanation to Page 2 of 8 C/SCA/2484/2014 JUDGMENT clause (m) in sec. 30 of the Act for the purpose of holding any person to be disqualified to be a member of the panchayat or to continue to be the member of the panchayat. Mr. Chaudhari submitted that if clause (m) is to be given purposeful meaning so as to read that a child born to a couple constituted by second marriage, could be considered and counted with other children of the person born out of the first marriage prior to amendment Act, otherwise, the intention behind the explanation provided in clause (m) will get frustrated and such person or couple constituted on account of second marriage shall be deprived of his or their rights to live life with dignity, status and enjoyment as envisaged under Article 21 of the Constitution of India. Mr. Chaudhari submitted that the second wife had full right to live with happiness with the person whom she is marrying and if one child born to her is to be taken as disqualification for a person to whom she is marrying to be a member or to continue to be a member of the panchayat, it would violate her rights to live life with dignity, enjoyment. Mr. Chaudhari thus urged that the view taken by the authorities below runs contrary to the legislative intention and the impugned orders are therefore required to be quashed and set aside.
5. As against the above arguments, learned advocate Mr. Munshaw submitted that undisputedly, the petitioner has more than two children after the Amendment Act, 2005 was brought into force as a result of which, he has incurred disqualification to continue as a member of the panchayat. Mr. Munshaw submitted that the provisions of section 30 of the Act prohibits a person to be a member or to continue to be a member if he incurs any of the disqualification provided therein and not the couple and, therefore, once, it is found that a person aspiring to be a member of the panchayat has more than two children after the amending Act of 2005, such person stands disqualified to be a member or to continue to be a member. Mr. Munshaw submitted that the legislature has never classified or distinguished the birth of child or children from first marriage or the Page 3 of 8 C/SCA/2484/2014 JUDGMENT second marriage for the person who is responsible for birth of more than two children and who wants to be a member or to continue to be a member of the panchayat. Mr. Munshaw submitted that the explanation to clause (m) of sec. 30 of the Act is just for the purpose as to how the number of children whose birth is from single delivery to be counted for the purpose of clause (m). Mr. Munshaw submitted that the authorities below have well considered the provisions of sec. 30(m) of the Act and committed no error in recording finding that the petitioner has more than two children after the amendment Act coming into force whereby the petitioner incurred disqualification to continue to be a member of the panchayat.
6. Learned AGP Ms. Vrunda Shah appearing for the State Authorities while adopting the arguments of learned Advocate Mr. Munshaw submitted that the legislature when provided for disqualification to be or to continue to be a member of the panchayat for birth of more than two children in relation to a person and not to a couple, it is no ground to say that since only one child was born after amendment Act of 2005 came into force, the petitioner has not incurred disqualification under sec. 30(m) of the Act.
7. Having heard the learned advocates for the parties, it appears that there is no dispute on the fact that the petitioner was already a father of five children till clause (m) was inserted in sec.30 of the Act by amendment Act of 2005 which came into force on 23.5.2005 and, therefore, as provided in section 30(m) of the Act, till sixth child was born on 20.7.2009 out of second wedlock of the petitioner, the petitioner had not incurred disqualification to be or to continue to be a member of the Panchayat. It is not the case of the petitioner that he is not father of sixth child. However, what is contended is that birth of sixth child is not to the same couple and that after the Amendment Act came into force, only one child was born to a new couple constituted out of the second wedlock, and therefore it cannot be said that the petitioner has more than two children after the Amendment Page 4 of 8 C/SCA/2484/2014 JUDGMENT Act of 2005 came into force. To emphasize such contention, learned advocate Mr. Chaudhary referred the explanation to Clause (m) of Section 30, which reads as under:-
30(1) (m) .........................................
Explanation. For the purpose of this clause, -
(i) where a couple has only one child on or after the date of such commencement, any number of children born out of single subsequent delivery shall be deemed to be one entity;
(ii) 'child' does not include an adopted child or children."
Such contention, if accepted, would run counter to the purpose and intent behind inserting Clause (m) in Section 30 of the Act, providing for disqualification of a person who has more than two children. It is required to note that Section 30 of the Act contains negative mandate for a person and not for a couple to be a member or to continue to be a member who suffers any of the disqualifications provided therein.
8. However, learned advocate Mr. Chaudhary submitted that if Section 30(m) is enforced against a person who, though has more than two children before the Amendment Act of 2005 and whose wife expired before the Amendment Act and who becomes father of one child after second marriage after the Amendment Act comes into force, his right and his second wife's right to live to their fullest satisfaction and to enjoy happiness in the free society as recognized by Article 21 of the Constitution of India, will stand violated, which could not be the intention of the legislature while providing for disqualification of a person to be a member or to continue to be a member of the Panchayat. Such argument does not deserve acceptance for two main reasons; one is that as against well being of the society and public interest behind insertion of Clause (m) in Section 30 of the Act, personal enjoyment of rights has to give way and second is that the right to be a member or to continue to be a member of the Panchayat is controlled by the statutory provisions of the Act and so long as statutory provisions made for such purpose are Page 5 of 8 C/SCA/2484/2014 JUDGMENT not held to be contrary to the constitutional provision, they remain to be followed for the purposes for which they are enacted.
9. Section 30 of the Act provides for disqualification of a person and not for a couple. It may be that out of two spouses, one would be considered responsible for birth of only one child on account of joining the other one by second marriage. In such circumstances, it may be possible to contend that such spouse joining by second marriage and giving birth to one child may be entitled to be a member or to continue to be a member of the Panchayat as such spouse may not be said to be having more than two children. However, the explanation is for different purpose. Explanation provided below clause (m) is to remove confusion as regards counting of children taking birth in single delivery for the purpose to decide whether a person could be said to have more than two children for deciding the issue of disqualification. To remove any such confusion, it is provided that wherever there is a birth of more than one child in a single delivery, only one child is to be counted from such single delivery so that a person who is otherwise having only single child either before the Amendment Act or after the Amendment Act, may not be deprived of his right to be a member or to continue to be a member of the Panchayat by counting all children born in single delivery. Except such purpose, there appears to be no other purpose in providing for explanation to Clause (m) of Section 30 of the Act. Such explanation could not be read to construe that even if a person is father of more than two children with first wife who expired before the Amendment Act of 2005 and still responsible for one more child after the Amendment Act by his second wife is not to be taken to have suffered disqualification under Section 30(m) of the Act. The word "couple" used in explanation is in the context of counting of children in single delivery and not related to a person to decide about his disqualification under sec. 30(1)(m) of the Act.
10. In the case of Javed and others Vs State of Haryana and others Page 6 of 8 C/SCA/2484/2014 JUDGMENT reported in AIR 2003 SC 3057, Hon'ble Supreme Court while construing the provisions of Section 175(1)(q) which provides for disqualification of a person to hold elective office of the Panchayat who has more than two children, has held that such provision is not violative of any constitutional right and observed in para 60 to 65 as under:-
60. Looked at from any angle, the challenge to the constitutional validity of Section 175 (1)(q) and Section 177(1) must fail. The right to contest an election for any office in Panchayat is neither fundamental nor a common law right. It is the creature of a statute and is obviously subject to qualifications and disqualifications enacted by legislation. It may be permissible for Muslims to enter into four marriages with four women and for anyone whether a Muslim or belonging to any other community or religion to procreate as many children as he likes but no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more than one. What is permitted or not prohibited by a religion does not become a religious practise or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is permitted. Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or group of people the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does.
61. If anyone chooses to have more living children than two, he is free to do so under the law as it stands now but then he should pay a little price and that is of depriving himself from holding an office in panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it. Some incidental questions.
62. It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to give them in adoption. Subject to what has already been stated hereinabove, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end.
While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out.
63. It was also submitted that the impugned disqualification would hit the women worst, inasmuch as in the Indian society they have no independence and they almost helplessly bear a third child if their husbands want them to do so. This contention need not detain us any longer. A male who compels his wife to bear a third child would disqualify not only his wife but himself as well. We do not think that with the awareness which is arising in Indian woman folk, they are so Page 7 of 8 C/SCA/2484/2014 JUDGMENT helpless as to be compelled to bear a third child even though they do not wish to do so. At the end, suffice it to say that if the Legislature chooses to carve out an exception in favour of females it is free to do so but merely because women are not excepted from the operation of the disqualification it does not render it unconstitutional.
64. Hypothetical examples were tried to be floated across the bar by submitting that there may be cases where triplets are born or twins are born on the second pregnancy and consequently both of the parents would incur disqualification for reasons beyond their control or just by freak of divinity. Such are not normal cases and the validity of the law cannot be tested by applying it to abnormal situations. Exceptions do not make the rule nor render the rule irrelevant. One swallow does not make a summer; a single instance or indicator of something is not necessarily significant.
Conclusion
65. The challenge to the constitutional validity of Section 175(1)(q) and 177(1) fails on all the counts. Both the provisions are held, intra vires the Constitution. The provisions are salutary and in public interest. All the petitions which challenge the constitutional validity of the above-said provisions are held liable to be dismissed.
11. In light of the above and for the reasons stated above, the petition is rejected. Rule discharged. Interim relief, if any, stands vacated.
(C.L.SONI, J.) anvyas Page 8 of 8