Oral Judgment: (Ferdino I. Rebello, J.)

Rule. By consent heard forthwith.

2. The Petitioner was elected as a Member of the Gram Panchayat Awarde from Ward No. 2. The Petitioner subsequently came to be elected as Deputy Sarpanch. A complaint was filed against the present Petitioner by Respondent Nos. 1 and 2 that on 12.9.2001 the Petitioner No. 1 had given birth to a third child. A show cause notice came to be issued by the Collector calling upon the present Petitioner to appear before the Collector. The Petitioner showed cause denying the allegation. The collector thereafter heard the matter and was pleased to pass the order of 17.9.2008 holding that the present petitioner had acquired disqualification as the Petitioner has given birth to a third child after the cut off date. The relevant provision is section 14(1) Clause (J)(i) of the Bombay Village Panchayat Act, 1958 (hereinafter shall be referred to as “Panchayat Act”). The same reads as under:

“14. Disqualifications : (1) No person shall be a member of a Panchayat continue as such, who -

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(j-1) has more than two children.”

The Petitioner being aggrieved preferred an appeal being Appeal No. 154 of 2008. On 9.9.2009 the appeal came to be dismissed and the order passed by the Collector was confirmed. Based on the same, Gram Sevak submitted a report regarding the vacancy that had arisen.

3. By the present petition, the petitioner sets out that the Petitioner being a female does not have any choice of her own in her married life. The provisions of the Panchayat Act, therefore to the extent that it provides for disqualification for having a third child needs to be challenged. The substantial grounds which are relevant may be reproduced:

“(1)At the outset, it is submitted that the amendment in the provisions of the Bombay Village Panchayat Act are contrary to the right of equality. There can be equality amongst the equal. However, it is a matter of fact that the man and woman are standing on different footings so far as the reproductive organs are concerned. Consequently, the pregnancy and delivery are the aspects in respect of which there cannot be any equality between male and female. Consequently it is submitted that the amendment is contrary to the provisions of Article 14 of the Constitution of India, 1950.

(2) The Petitioner submits that every female is having a right to enjoy her motherhood as well as womanhood. The nature has provided different reproductive organs to female, and, therefore, putting restriction of number of children for female candidate is violative of Article 21 of the Constitution of India, 1950.”

4. It may be mentioned that the learned counsel apart from addressing us on the challenge to the provisions on merits, has not disputed the finding nor has raised any objection to the procedure. The Petitioners have therefore, sought the following prayer:

“Be pleased to hold that the provisions of Section 14(1) Clause J(i) of Bombay Village Panchayat Act, 1958 is violative of Articles 14 and 21 of Constitution of India, 1950 and be pleased to quash and set aside the same by issuing a writ of certiorari or any other writ or order or direction in the nature of writ of certiorari.”

As a consequential relief, the Petitioners has prayed for quashing the order dated 17.11.2008 and 9.9.2009.

5. Elaborating the learned counsel submits that in India, there is patriarchal family. A female member of the family does not have any choice so far as sexual life, pregnancy and delivery of the child is concerned. Consequently a judicial notice ought to be taken that the female member in patriarchal family does not have any effective control over the pregnancy as well as delivery of the children. A female citizen considering article 21 of the Constitution has a right to develop pregnancy and deliver a child if there is pregnancy. Such right cannot be curtailed by the provisions of the Panchayat Act earlier ref