The main legal point established in the judgment is that a candidate's election can be set aside if they are found to have more than two children born after a specified date, as it would disqualify them from contesting the election under Section 10(1)(i) of the Maharashtra Municipal Corporations Act, 1949.

JUDGMENT

C.V.BHADANG, J. - Rule. Rule made returnable forthwith. The learned counsel for the Respondents waive service. Heard finally by consent of the parties.

2. The challenge in this petition is to the Judgment and Order dated 4 August 2018 passed by the learned Civil Judge, Senior Division at Solapur in Election Petition No.63/2017. By the impugned judgment, the election petition filed by the first respondent has been allowed and election of the petitioner, as a Councilor of the Solapur Municipal Corporation, has been set aside.

3. The brief facts are that the general election of the Solapur Municipal Corporation were held in the year 2017. The petitioner and the respondent Nos.1 to 3 were the contesting candidates from Ward No.11(C). It appears that there was no objection to the nomination of any of these candidates. The result of the election was declared on 23 February 2017 in which the petitioner was declared elected having secured the highest number of votes i.e. 4955 votes. The first respondent had secured second highest votes i.e. 3422 votes.

4. The first respondent filed election petition challenging the election of the petitioner interalia on the ground that the petitioner had three children namely Ganesh Ramdas Magar (Date of Birth - 10 May 2001) Sonali Ramdas Magar (Date of Birth - 20 April 2003) and Poonam Ramdas Magar (Date of Birth - 29 August 2004). It was contended that Sonali and Poonam having born after 1 September 2001, the petitioner was disqualified from contesting the election under Section 10(1)(i) of the Maharashtra Municipal Corporations Act, 1949 ('the Act' for short). It was contended that the petitioner had furnished information which was false to her knowledge to the Returning Officer at the time of filing nomination. The petitioner has also challenged the election on the basis of the alleged bogus voting in the name of a dead person, through Electronic Voting Machine (EVM). The said ground has not been accepted by the Trial Court. Thus, presently, we are only concerned with the ground of the petitioner having more than two children who are born after 1 September 2001. The first respondent has also sought declaration of she being elected from the said ward.

5. The petitioner resisted the election petition. It was denied that the petitioner has three children as alleged. It was contended that Poonam who was born on 29 August 2004 was the daughter of Dattatray Magar and Sunita Magar and not the petitioner. It was contended that a similar objection was raised in the year 2012 by one Hanif Patel challenging the election of Ramdar Magar who is husband of the petitioner, who was then elected as a Councilor from ward No.19(B). It was pointed out that the Returning Officer by an order dated 1 February 2012 had refused to uphold the objection to the nomination of Ramdas Magar which finding had attained finality. It was thus contended that similar ground cannot be raised based on Section 10(1)(i) of the said Act.

6. It was contended that it was purely out of inadvertence that in the intimation issued from the hospital on the birth of Poonam, the name of her parents was shown as Anita Magar and Ramdas Magar where in fact Poonam was daughter born to Dattatray Magar and Sunita Magar. It is submitted that the necessary correction was carried out in the Birth Certificate No.0047/791 on 7 January 2012, as per order passed by the Registrar, under the Registration of Birth and Deaths Act, 1969 (Act of 1969).

7. On the basis of the rival pleadings, the Trial Court framed in all five issues.

8. The first respondent (the petitioner before the Trial Court) examined herself as P.W.1 alongwith Dr. Shashikant Savale (P.W.2), Nagraj Hiremath (P.W.3) and Mahadev Sherkhane (P.W.4).

9. The petitioner (the respondent No.1 before the Trial Court) examined herself as D.W.1 alongwith Dattatray Magar (D.W.2), Durgadevi Siddam (D.W.3) and Sanjay Deshmukh (D.W.4). Both the parties produced certain documents.

10. The learned Trial