1. The petitioner and respondent nos. 3 to 5 filled in nominations for the election of Councillor of Gevrai Municipal Council from Ward No. 2B.

2. The objection was taken to the nomination of respondent no. 3 on the count that she is having five (5) children and one child born after the cut off date, as such is disqualified. The Returning Officer rejected the nomination of respondent no. 3. Respondent no. 3 filed Appeal before the District Court. The District Judge allowed the Appeal of respondent no. 3 and directed the Returning Officer to accept the nomination paper of respondent no. 3. Aggrieved thereby, the present Writ Petition is filed.

3. Mr. N.L.Jadhav, the learned counsel for the petitioner submits that respondent no. 3 is wife of Shantilal Pisal. Shantilal Pisal has four (4) issues from his first wife. After the death of the first wife, Shantilal married with present respondent no. 3 and respondent no. 3 gave birth to a child on 03/08/2004. As such, it will have to be said that the Respondent no. 3 had five (5) children. The learned counsel submits that Section 16 (1) (K) of the Maharashtra Municipal Council and Nagar Panchayat Act [For short, ‘said Act’] will have to be given wider interpretation. Explanation to Section 16 (1) (K) of the said Act will have to be read harmoniously. In explanation, the word “couple” is used and though four (4) children are born to Shantilal Pisal from his first wife, still as respondent no. 3 has married with Shanatilal Pisal and has given birth to a child, it will have to be held that the said couple have five (5) children and one child is born after the cut off date. The word “family” would include all the children. As the word “couple” is used in the explanation, that will be concerned with the word “family”. The learned counsel submits that any other interpretation would be contrary to 4 W.P. 9261.2011 -[J] the aim and object of the Act. The learned counsel to substantiate his contention, relies on the Judgment of the Apex Court in the case of Javedand Ors. V/s State of Haryana & Ors. Reported in [2003] 8 SCC – 369.

4. Relying on the aforesaid Judgment, the learned counsel contends that even in Mohmaddans, four ( 4 ) marriages are permissible and even if the husband has one (1) child from each marriage, still that is not permissible in view of the said Judgment. According to the learned counsel, the District Judge has committed an error in directing the Returning Officer to accept the nomination paper of respondent no. 3.

5. Mr. A.M.Gaikwad, the learned counsel for respondent no. 3 supports the order and submits that the petitioner has only one child and the children born to her husband from his first wife, can not be construed as children of the petitioner.

6. Before adverting to the arguments canvassed by the learned counsel for the respective parties, it would be appropriate to refer to the relevant provision, as under:

“16 Disqualifications for becoming Councillor – (1) No person shall be qualified to become a Councillor whether by election, 2 [ *** ] or nomination, who,

(a1) to (iij): xxxxxxxxxxxxxxxxxxxx

(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 Panchayats and Industrial Townships ( second 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 from the date of such commencement shall not be taken into consideration for the purposes of 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