JUDGMENT :

The question referred to the Division Bench for consideration is “whether the expression ‘two children’ used in Section 14(1)(j-1) of the Maharashtra Village Panchayats Act, 1959 (for short, ‘the Act of 1959’) has been used in a generic sense so as to include all children from the present or previous spouse or whether said expression had been used in a restricted sense to mean that only children born from the present spouse” ?

2. At the outset, we may indicate the reasons for the question being referred to the Division Bench. The petitioner herein came to be disqualified as the Member of the Gram Panchayat under Section 14(1)(j-1) of the Act of 1959 on the ground that she had more than three children after the cut-off date. It is her case that her husband Sheikh Chand had two sons from the earlier marriage and the third child was born from the marriage with the petitioner. The petitioner was held to be disqualified by the Divisional Commissioner and that order was challenged in the present writ petition. The decision in Girika Badamrao Pandit Versus State of Maharashtra & Others [2012(5) Mh.L.J. 658] was relied upon by the counsel for the petitioner to urge that the disqualification was not attracted since she had only one child from her marriage. After considering the said decision alongwith the decision in Ashok Balasaheb Chaugule Versus The State of Maharashtra & Others [2012 (6) Mh.L.J. 782] wherein cognizance of children born from the petitioner’s earlier marriage was also taken, the learned Single Judge expressed his inability to agree with the observations in Girika Badamrao Pandit (supra) that the expression ‘çhildren’ could not be adopted in a generic term and instead it ought to include all children whether from the present or earlier spouse living or no more and also including the step children. In view of such disagreement, the aforesaid question has been referred to the Division Bench.

3. In Girika Badamrao Pandit (supra) an objection was raised to the nomination form of the respondent no.3 therein on the ground that she had five children of which one child was born after the cut-off date. As a result, she was not qualified to contest the elections in view of the provisions of Section 16(1)(k) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The Returning Officer had rejected the nomination form of the respondent no.3 but the appeal preferred by her came to be allowed by the District Court. While challenging the order passed by the District Court, it was urged that since the respondent no.3 was married to one Shantilal who had four issues from his first wife and on his marriage with the respondent no.3 after the death of his first wife had another child, the respondent had thus five children. This contention was turned down by holding that the respondent no.3 had only one child from her marriage with Shantilal. Though Shantilal had four issues from his earlier wife who had expired, the step children of the respondent no.3 could not be taken into consideration for holding that the respondent no.3 had more than two children. The learned Single Judge further observed that had Shantilal been the candidate then it would have been a different case and as the respondent no.3 had given birth to only one child she was not disqualified from contesting the elections.

In Ashok Balasaheb Chaugule (supra) the petitioner had married one Vijayalaxmi and from that wedlock had one son. The petitioner thereafter married Annapurna and had two children from this wedlock. It was held that the petitioner had incurred disqualification and was thus removed from the membership of the Gram Panchayat. It was urged before the learned Single Judge that the petitioner had one son from the previous wedlock and after being separated by virtue of divorce by mutual consent, the petitioner had remarried and from the subsequent wedlock had two children. The petitioner therefore was not disqualified un