Bombay High Court
Sarang S/O. Suresh Malani vs State Of Maha., Through Its Secretary, ... on 3 May, 2016
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
1 WP6323.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6323 OF 2015
PETITIONER : Sarang S/o Suresh Malani
Aged about 41 years, Occu. Business,
R/o Deep Gaurav Apartment,
Lendipura, Tq. Akot, Dist. Akola.
- VERSUS -
RESPONDENTS : 1] State of Maharashtra,
ig through its Secretary,
Department of Urban Development,
Mantralaya, Mumbai - 32.
2] The Collector, Akola,
Tah. & Dist. Akola.
3] The Chief Officer,
Municipal Council, Akot,
Dist. Akola.
4] Mangesh Keshavrao Chikhale,
Aged 35 years, Occu. Business,
R/o Shanwara, Tah. Akot, Dist. Akola.
5] The Registrar,
Birth and Death Registration,
Municipal corporation, Akola,
Tah. And Dist. Akola.
-------------------------------------------------------------
Mr. U. J. Deshpande, Advocate for the petitioner.
Ms. Tajwar Khan, Asst. Govt. Pleader for respondent nos.1 and 2
Mr. A. M. Ghare, Advocate for the respondent no.4
------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
DATE : MAY 03, 2016.
ORAL JUDGMENT
::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:29 :::
2 WP6323.15.odt
Rule. Rule made returnable forthwith. The petition is
taken up for final disposal at the stage of admission with the consent of the learned counsel for the parties.
2] By the present petition, the petitioner challenges the order passed by the respondent no.2 - Collector, dated 10.07.2015 in an objection raised by the petitioner and the order passed by the respondent no.1 - Hon'ble Minister for State, dated 18.11.2015 in an appeal challenging the order passed by the respondent no.2 - Collector and upholding the said order passed by the respondent no.2 - Collector.
3] The brief facts giving rise to the present petition can be summarized as under :
The petitioner and the respondent no.4 are residents of Akot, District Akola. The elections were held for Municipal Council, Akot in year 2011 and the respondent no.4 was elected as Councillor for Municipal Council from Ward No. 6-B. It is the case of the petitioner that the respondent no.4 was having three children after the cut off date i.e. 12.09.2001 and as such, the respondent no.4 incurs disqualification in view of the provisions of Sections 16(1)(k) and 44(1)(a) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 3 WP6323.15.odt Townships Act,1965 (hereinafter referred to as the "Act of 1965" for the sake of brevity). The petitioner submitted his objection before the respondent no.2 - Collector seeking disqualification of the respondent no.4. It was submitted that the first child of the respondent no.4 i.e. son Satveek was born on 22.06.2010, second child i.e. daughter Vidhi was born on 07.08.2013 and the third female child was born on 26.02.2015. It was submitted that necessary entries in respect of birth of the children were taken in the record of Municipal Council, Akot.
The certificates to that effect were issued by the respondent no.5. The petitioner had also placed on record the certificates issued by the Chief Officer, Municipal Council, Akot. The respondent no.4 contested the objection raised by the petitioner by filing reply. It was submitted by the respondent no.4 that though, the petitioner was having three children after the cut off date, out of these three children, the second child i.e. daughter Vidhi born on 07.08.2013, unfortunately, died within a very short span of her birth. It was submitted that daughter Vidhi expired on 12.06.2014 while she was under treatment at Orbit Children Hospital, Critical Care and Surgical Unit, Akola. At the time of death of daughter Vidhi, there was only one living child i.e. son Satveek. It was further submitted by the respondent no.4 that the third issue was born on 26.02.2015. As such, number of living children were two. It was ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 4 WP6323.15.odt then submitted that the petitioner was also aware of these facts and only with an oblique motive, the petitioner raised objection against the respondent no.4 and as no disqualification was incurred, the respondent no.2 - Collector hold that the respondent no.4 was having two children after the cut off date and at no point of time the respondent no.4 was having more than two living children. Accordingly, by accepting submission of the respondent no.4, the objection raised by the petitioner came to be rejected. The Hon'ble Minister, in an appeal presented by the petitioner, by holding that the respondent no.2 - Collector has arrived at a just and proper conclusion, dismissed the appeal filed by the petitioner. It will not be out of place to mention here that the Hon'ble Minister has not assigned any independent reason while dismissing the appeal and only reiterated that respondent no.1 - Collector referred to the relevant factors of the matter and considering the decision of the respondent no.1- Collector, the appeal was dismissed.
4] I have heard the learned counsel for the parties at length.
The learned Assistant Government Pleader appearing for the respondent nos.1 and 2 supports the orders impugned in the petition passed by the respondent no.1 - Hon'ble Minister and the respondent no.2 - Collector, Akola.
::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 :::5 WP6323.15.odt 5] Mr. Deshpande, the learned counsel for the petitioner vehemently submitted that the respondent no.4 has not disputed the basic facts namely birth of three children i.e. son Satveek on 22.06.2010, daughter Vidhi on 07.08.2013 and third child on 26.02.2015. It is the submission of the learned counsel for the petitioner that the relevant provision, namely Section 16(1)(k) of the Act of 1965, refers to disqualification incurred on the ground of having more than two children after the cut off date. He further submits that the provision is not making any distinction like "living children" and the respondent no.2 - Collector as well the Appellate Authority i.e. Hon'ble Minister, have misread the provision by reading words "living children"
and as such arrived at an erroneous conclusion. The learned counsel submitted that the provision appeared in the Act with an aim and object of an effective measure to curb the population explosion. The learned counsel for the petitioner placed heavy reliance on the judgments of this Court reported in 2012 (5) Bom C R 225 in the case of Dnyaneshwar Patiram @ Ratiraj Shirbhiye .vs. Divisional Commissioner and others ;
and 2015(4) Mh.L.J. 448 in the case of Premdas Gulab Chavan .vs. Additional Commissioner, Amravati and others. The learned counsel also placed reliance on the judgments of the Hon'ble Apex Court, reported in (2003) 8 Supreme Court Cases 369 in the case of Javed ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 6 WP6323.15.odt and others .vs. State of Haryana and others ; and AIR 2006 Supreme Court 2138 in the case of K. P. Sudhakaran and another .vs. State of Kerala and others.
6] Per contra, Mr. Ghare, the learned counsel for respondent no.4 vehemently submitted that no error is committed by the respondent no.2 - Collector and the respondent no.1- Hon'ble Minister.
The learned counsel submitted that first child son Satveek was born on 22.06.2010, second child daughter Vidhi was born on 07.08.2013 and daughter Vidhi expired within a short span of 10 months of her birth.
It was submitted by the learned counsel that at the time of death of second child, wife of the respondent no.4 was not conceiving and the third child was born on 26.02.2015. Thus, number of living children to the respondent no.4 were two. The learned counsel vehemently submitted that provision of Section 16(1)(k) of the Act of 1965 refers the word "has" and as word "has" is used, the same is indicative of 'present' by adopting Webster's dictionary meaning of word 'has'. It was the submission of the learned counsel that the provisions of said Act takes into consideration eventuality of certain factors such as, death of a child in tender age and as such, the provision deals with the aspect of not increasing the number of children. The learned counsel for the ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 7 WP6323.15.odt respondent no.4, in support of his submissions, submitted an eventuality like, having a child after cut off date and thereafter twins are born to that couple and within a short span twins expired. The learned counsel submitted that in such an eventuality, though in fact there would be number of children three, the living children would be only one and in such a case, a person cannot be disqualified as there is no increase in number of living children so also there is no increase in the population.
7] On hearing both the learned counsel at length and in view of the controversy involved in the present petition relating to the disqualification and in view of disqualification allegedly incurred by the respondent no.4, it would be necessary to refer to the provision of Section 16(1)(k) of the Act of 1965, which reads thus :
"Section 16 - Disqualification for becoming a Councillor - (1) No person shall be qualified to become a Councillor whether by election or nomination who -
(a) ...............
(k) has more than two children :
Provided that, a person having more than two children on the date of commencement of the Maharashtra Municipal Corporations and Municipal Councils, Nagar Pachayats and Industrial Townships (Second Amendment) Act, 1995 (hereinafter in this ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 8 WP6323.15.odt clause referred to as "the date of such commencement"), shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase :
Provided further that a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause.
Explanation - For the purposes 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 a single subsequent delivery shall be deemed to be one entity ;
(ii) "child" does not include an adopted child or children."
8] The very controversy involved in the present petition was the subject matter before this Court in Dnyaneshwar Shirbhiye .vs. Divisional Commissioner (supra) and Premdas Chavan .vs. Additional Commissioner, Amravati (supra), on which the learned counsel for the petitioner has placed heavy reliance. A pari materia provision of the Bombay Village Panchayats Act, 1958 was considered by this Court on the backdrop of the judgment of the Apex Court in Javed and others .vs. State of Haryana and others (supra). In an identical situation, it was ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 9 WP6323.15.odt submitted before this Court that the provision of disqualification would be attracted only if the children are living and same would not apply to a case where child is born and died. While considering the provision of incurring disqualification under the Bombay Village Panchayats Act, namely Section 14(1)(j-1), this Court observed that the said provision is identical to the provision of Section 175(1)(q) of Haryana Panchayati Raj Act, 1994 and then observed thus :
"The provision of Section 14(1)(j-1) of the said Act is identical to the provision of Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994. Hence, the same is also reproduced below :
"14. Disqualifications:- (1) No person shall be a member of a Panchayat continue as such, who-
(j-1) has more than two children Provided that, a person having more than two children on the date of commencement of the Bombay Village Panchayats, and the Maharashtra Zilla Parishads, and Panchayat Samitis (Amendment) Act, 1995 (hereinafter in this clause referred to as "the date of such commencement"), shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase:
Provided further that, a child or more than one child born in a single delivery within the period of one year ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 :::
10 WP6323.15.odt from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause.
Explanation 5- For the purpose of clause (j-1) :
(i) where a couple has only one child on or after the date of such commencement, any number of children born out of a single subsequent delivery shall be deemed to be one entity;
(ii) "child" does not include an adopted child or children."
Except some difference in the first proviso to Section 14(1)(j-1), the basic provision is the same. Hence, the object of main provision of Section 14(1)(j-1)of the said Act would be the same as that of Section 175(1)(q) of the Haryana Panchayati Raj Act, 1994, in the judgment of the Apex Court. One of the objects sought to be achieved by introduction of the said provision, is of popularizing the family welfare/family planning programme and the disqualification enacted seeks to achieve the objective by creating a disincentive, as has been observed by the Apex Court in the said judgment. While upholding the constitutional validity, it has been held that the classification does not suffer from any arbitrariness. The number of children, viz. two, is based on legislative wisdom and it could have been more or less. It has ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 11 WP6323.15.odt further been held that the number is a matter of policy decision, which is not open to judicial scrutiny. The amendment introduced was held to be consistent with the National Population Policy and it seeks to achieve a laudable purpose -- socio-economic welfare and health care of the masses.
21. The principles of construction of provisos, which are in the nature of exceptions to the main provision, are required to be stated.
The normal function of such provisos is to except something out of the main provision or to qualify something enacted in the main provision, which but for the provisos would be within the purview of the main provision. The operation of such provisos cannot be extended to all kinds of cases covered by the main provision, otherwise it shall have the effect of nullifying the main provision. Similarly, such provisos cannot be read to exclude something from the main provision, which but for such reading would be within the purview of the main provision, otherwise it would mean to create another proviso or proviso to proviso. Such provisos, which are in the nature of exception, are, therefore, required to be construed strictly, restricting its scope and impact only to a situation covered by such provisos.
22. Now coming to the contention of Shri Rohit Deo for ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 12 WP6323.15.odt the petitioner, that the first proviso covers the cases of child born and died, perusal of the said proviso nowhere makes out any such distinction between a child born and living on one hand and a child born and died on the other hand. If the construction that the first proviso covers the cases of child born and died is accepted, then it would amount to creating another additional proviso to main provision or a proviso to the first proviso. Not only that, but such construction would also defeat the very object and purpose of main provision, i.e. creating a disincentive, for the reason that the petitioner had more than two children on the date of commencement of the said Act and the fourth child was an increase. It will have, therefore, to be held that the first proviso does not protect the cases where there is increase in the number of children specified in the main provision, after the cut-off date 12-9-2001. Hence, no fault can be found with the view taken by the Commissioner.
23. Now coming to the another submission of Shri Rohit Deo for the petitioner that the case of the petitioner is governed by the proviso to Section 14(1)(j-1) of the said Act, as the fourth child was born on 16-2-2002, i.e. within a period of one year from the date of commencement of the said Act, i.e. 12-9-2011, para 4 of the judgment of the Apex Court in Javed's case, cited supra, is relevant, and part of the portion thereof is reproduced below :
::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 :::13 WP6323.15.odt "4. Placed in plain words, the provision disqualifies a person having more than two living children from holding the specified offices in Panchayats. The enforcement of disqualification is postponed for a period of one year from the date of the commencement of the Act. A person having more than two children up to the expiry of one year of the commencement of the Act is not disqualified. This postponement for one year takes care of any conception on or around the commencement of the Act, the normal period of gestation being nine months. If a woman has conceived at the commencement of the Act then any one of such couples would not be disqualified. Though not disqualified on the date of election, if any person holding any of the said offices incurs a disqualification by giving birth to a child one year after the commencement of the Act he becomes subject to disqualification and is disabled from continuing to hold the office. The disability is incurred by the birth of a child which results in increasing the number of living children, including the additional child born one year after the commencement of the Act, to a figure more than two. ..."
The object of introducing second proviso to Section 14(1) (j-1) of the said Act is to postpone the enforcement disqualification to take care of cases where conception ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 14 WP6323.15.odt has already taken place on or around the date of commencement of the said Act, the normal period of gestation being nine months. The object is also to provide notice of introducing such disqualification. The operation of second proviso is thus restricted to a period of one year from the date of commencement of the said Act. It protects the cases where elections are also held within a period of one year from the date of commencement of the said Act. The proviso neither provides protection in cases where a third child is born after a lapse of one year from the date of commencement of the said Act, nor does protect the cases where elections are held after a lapse of one year from the date of commencement of the said Act. The life of second proviso came to an end on 12-9-2002.
In the present case, the date of commencement is 12-9- 2001, whereas the period of one year expired on 12-9- 2002. The elections have been held on 28-8-2005. The case of the petitioner would, therefore, not be protected or governed by the second proviso and hence the contention is rejected.
9] In my opinion, in view of clear observations of this Court that though not disqualified on the date of election, if any person holding any of the said offices, incurs a disqualification by giving birth to a child one year after the commencement of the Act, he becomes subject to disqualification and is disabled from continuing to hold the ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 15 WP6323.15.odt office, as well, the disability is incurred by the birth of a child which results in increasing the number of living children, including the additional child born one year after the commencement of the Act, to a figure more than two, the submission of Mr. Ghare that the provision deals with only the living children and the view taken by the respondent no.1 and 2 is just and proper, cannot be accepted. The view taken by this Court in Dnyaneshwar Shirbhiye's case, is reiterated in the case of Premdas Chavan .vs. Additional Commissioner. The facts in the case of Premdas Chavan were identical and they were referred to by this Court at paragraph nos.4 and 5, which read thus :
"4] The controversy is covered by the decision of this Court in the case of Dnyaneshwar Patiram @ Ratiraj Shirbhiye .vs. Divisional Commissioner, Nagpur and others, reported in 2012 (3) Mh.L.J. 253. Para 22 of the said decision being relevant is reproduced below.
"22. Now coming to the contention of Shri Rohit Deo for the petitioner, that the first proviso covers the cases of child born and died, perusal of the said proviso nowhere makes out any such distinction between a child born and living on one hand a child born and died on the other hand. If the construction that the first proviso covers the cases of child born and died is accepted, then it would amount to creating another additional proviso to main ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 :::
16 WP6323.15.odt provision or a proviso to the first proviso. Not only that, but such construction would also defeat the very object and purpose of main provision i.e. creating a disincentive, for the reason that the petitioner had more than two children on the date of commencement of the said Act and the fourth child was an increase. It will have, therefore, to be held that the first proviso does not protect the cases where there is increase in the number of children specified in the main provision, after the cut-off date 12.09.2001.
Hence, no fault can be found with the view taken by the Commissioner".
5] In view of the aforesaid law laid down by this Court, the fact as to whether one child out of three children expired on 01.12.2007 i.e. before the date of contesting the elections would be of no relevance. The fact that there was increase in the number of children after the cut-off date i.e. 12.09.2001 is the relevant factor. Undisputedly, the respondent no.3 was not a sitting member of Panchayat on 12.09.2001 and there was increase in the number of children after the cut-off date. In view of this, respondent no.3 cannot be saved from the disqualification."
In view clear and unambiguous observations of this Court, on an identical facts and controversy in the present petition, I see no reason to take different view. Thus, the submission of Mr. Ghare, the learned ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 17 WP6323.15.odt counsel for the respondent no.4, of reading the provision by treating word "has" to connote the number of children being living, cannot be accepted at any stretch.
10] It will also be useful to refer to the judgment of the Hon'ble Apex Court in the case of Javed and others .vs. State of Haryana and others (supra). In this case, the same provision, namely seeking disqualification of Sarpanch, Up-Sarpanch or Panch on the ground of having more than two children, was subjected to challenge on the ground of arbitrariness and discrimination. The Hon'ble Apex Court in its detail judgment dealt with all the grounds raised. The Hon'ble Apex Court also took into consideration the aim and object of bringing the said provision in the Act. It will be useful to refer to certain observation of the Hon'ble Apex Court, which read thus :
"22. Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a Statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right -- a right originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. There is nothing wrong in the same Statute which confers the right to contest an election also to provide for the necessary ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 :::
18 WP6323.15.odt qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.
25. In our view, disqualification on the right to contest an election by having more than two living children does not contravene any fundamental right nor does it cross the limits of reasonability. Rather it is a disqualification conceptually devised in national interest.
31. The torrential increase in the population of the country is one of the major hindrances in the pace of India's socio- economic progress. Everyday, about 50,000 persons are added to the already large base of its population. The Karunakaran Population Committee (1992-93) had proposed certain disincentives for those who do not follow the norms of the Development Model adopted by the National Public Policy so as to bring down the fertility rate. It is a matter of regret that though the Constitution of India is committed to social and economic justice for all, yet India has entered the new millennium with the largest number of illiterates in the world and the largest number of people below the poverty line. The laudable goals spelt out in the Directive Principles of State Policy in the Constitution of India can best be achieved if the population explosion is checked effectively. Therefore, the population control assumes a central importance for providing social and economic ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 19 WP6323.15.odt justice to the people of India (Usha Tandon, Reader, Faculty of Law, Delhi University, - Research Paper on Population Stabilization, Delhi Law Review, Vol. XXIII 2001, pp.125-
31).
32. In the words of Bertand Russell, "Population explosion is more dangerous than Hydrogen Bomb." This explosive population over-growth is not confined to a particular country but it is a global phenomenon. India being the largest secular democracy has the population problem going side by side and directly impacting on its per capita income, and resulting in shortfall of food grains in spite of the green revolution, and has hampered improvement on the educational front and has caused swelling of unemployment numbers, creating a new class of pavement and slum-dwellers and leading to congestion in urban areas due to the migration of rural poor. (Paper by B.K. Raina on Population Policy and the Law, 1992, edited by B.P. Singh Sehgal, page
52).
33. In the beginning of this century, the world population crossed six billions, of which India alone accounts for one billion (17 per cent) in a land area of 2.5 per cent of the world area. The global annual increase of population is 80 millions. Out of this, India's growth share is over 18 millions (23 per cent), equivalent to the total population of Australia, which has two and a half times the land space of India. In other words, India is growing at the alarming rate of one ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 20 WP6323.15.odt Australia every year and will be the most densely populous country in the world, outbeating China, which ranks first, with a land area thrice this country's. China can withstand the growth for a few years more, but not India, with a constricted land space. Here, the per capita crop land is the lowest in the world, which is also shrinking fast. If this falls below the minimum sustainable level, people can no longer feed themselves and shall become dependent on imported food, provided there are nations with exportable surpluses.
Perhaps, this may lead to famine and abnormal conditions in some parts of the country. (Source - Population Challenge, Arcot Easwaran, The Hindu, dated 8.7.2003). It is emphasized that as the population grows rapidly there is a corresponding decrease in per capita water and food. Women in many places trek long distances in search of water which distances would increase every next year on account of excessive ground water withdrawals catering to the need of the increasing population, resulting in lowering the levels of water tables.
40. The menace of growing population was judicially noticed and constitutional validity of legislative means to check the population was upheld in Air India Vs. Nergesh Meerza [(1981) 4 SCC 335]. The Court found no fault with the rule which would terminate the services of Air Hostesses on the third pregnancy with two existing children, and held the rule both salutary and reasonable for two reasons - (SCC P.374, para 101).
::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 :::21 WP6323.15.odt "In the first place, the provision preventing a third pregnancy with two existing children would be in the larger interest of the health of the Air Hostess concerned as also for the good upbringing of the children. Secondly, ....... when the entire world is faced with the problem of population explosion it will not only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of over-population which, if not controlled, may lead to serious social and economic problems throughout the world."
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 ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 ::: 22 WP6323.15.odt 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."
11] The example/eventuality referred by Mr. Ghare, the learned counsel that if there is already one child living and subsequently twins are born and unfortunately, twins are expired, the number of living children would be only one and it would not attract the provision of incurring disqualification against such person, also cannot be accepted firstly on the ground that such an example/eventuality is a case of rarity or a case of freak of divinity and such a hypothetical example was also considered by the Hon'ble Apex Court in the said judgment and the Hon'ble Apex Court observed thus --
"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 ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 :::
23 WP6323.15.odt render the rule irrelevant. One swallow does not make a summer; a single instance or indicator of something is not necessarily significant.
12] Considering all these aspects, in my opinion, the orders passed by the respondent no.2 - Collector and upheld by the respondent no.1 - Hon'ble Minister in appeal are erroneous. The view taken by both these authorities is unsustainable in view of the judgments of this Court. Hence, the writ petition deserves to be allowed.
13] The writ petition is allowed.
The orders impugned in the petition, passed by the respondent no.2 - Collector, dated 10.07.2015 and the respondent no.1
- Hon'ble Minister, dated 18.11.2015 are quashed and set aside.
Rule is made absolute accordingly. Writ Petition is disposed of. No costs.
JUDGE Diwale ::: Uploaded on - 06/06/2016 ::: Downloaded on - 30/07/2016 00:45:30 :::