TATIA, J. - (1.) HEARD learned counsel for the petitioner.
(2.) ACCORDING to learned counsel for the petitioner, the petitioner married with one Sharda Devi on 16. 05. 1987 as per Hindu Rites. Out of the wedlock, a daughter Seema born to the petitioner. The petitioner's wife Sharda Devi died on 11. 05. 1993. The petitioner, thereafter, married to one Indra on 13. 05. 1994. Out of this wedlock, two sons born to the petitioner. Smt. Indra died on 16th Oct. 1997. Therefore, by two marriage, the petitioner got three children. It is submitted by learned counsel for the petitioner that after the death of second wife of the petitioner, the petitioner contracted third marriage but there is no child from that wedlock. According to learned counsel for the petitioner as per sub- clause (l) of Section 19 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred as the Act of 1994), a person, who has more than two children and with a birth of any child after 27th Nov. , 1995 is a disqualified person to contest the election for any of the posts of the Panchayat as provided under the Act of 1994. Therefore, petitioner may be declared disqualified on the ground that the petitioner has more than two children and one of the children of the petitioner was born after cut out date i. e. 27. 11. 1995 though the petitioner has no child from his present (third) wife and even from his earlier wives petitioner never had more than two children. From facts it appears that, one child was born to the petitioner's earlier wife much prior to 27th Nov. 1995. The petitioner married with another lady and from that lady, the petitioner has two children and one out of two one born after cut out date (27. 11. 1995 ). According to petitioner, the petitioner cannot be held disqualified to contest the election because of the reason that petitioner has two children from one wife two children from second wife. According to learned counsel for the petitioner, in view of the explanation appended to Section 19 of the Act of 1994, the number of children of a couple (existing couple) alone can be taken into account for counting the total number of children of prospective candidate. Since the petitioner has no issue from his present wife, therefore, the petitioner is not disqualified under clause of (l) of Section 19 of the Act of 1994. It is also submitted that in case where the law permits more than one marriages (in the case of Hindu, he may marry another lady after divorce to his wife or after death of earlier wife and Muslim may have four wives), then having more than two children from different wife or wives, cannot be a disqualification under sub-clause (1) of Section 19 of the Act of 1994. Learned counsel for the petitioner relied upon the judgment of this court delivered in Praga Ram vs. Civil Judge (Sr. Div.), Jalore & Ors. (S. B. Civil Writ Petition NO. 1105/1999), decided on 16. 11. 1999 wherein this very controversy was involved and this Court after interpreting the explanation appended to Section 19 of the Act of 1994 observed as under:- " Explanation-For the purpose of clause (1) of Sec. 19, where the couple has only one child from the earlier delivery or deliveries on the date of commencement of this Act and thereafter, any number of children born out of single subsequent delivery shall be deemed to be one entity. From the above explanation, it is clear that the child will go with the couple and couple means to existing husband and wife and not the husband and his deceased first wife. The explanation has to be introduced by the Legislature under Section 19 of the Act because for no fault of the second wife, she (second wife) should not be made to suffer by denying her the fundamental right to have children. A person can only incur discrimination when the couple, i. e. , present wife has more than two children otherwise he could not be disqualified. Learned counsel for the petitioner submits that the word `couple' has been used in the explanation appended to Section 19 and it cannot be made ineffective or cannot be rendered as dead letter because of the simple reason that no word in the provision can be rendered ineffective or purposeless as held by the this court in the case of Laxman Das vs. Deoji Mal & Ors. (2000 (4) WLC (Raj.) 297) after considering several earlier judgment of this court delivered in the case of Bhiva Ram & Ors. vs. State of Rajasthan & Ors (2000 (3) WLC (Raj.) 645 = RLW 2000 (3) Raj. 1667 ). It is also submitted that when words are clear in the statute then the meaning of the word as closed naturally to be taken into consideration while interpreting the provision of law. For this, learned counsel for the petitioner relied upon the judgment of this Court delivered in the case of Naresh Kumar Rajput & 16 Others vs. State of Rajasthan & Anr. (1998 (2) WLC (Raj.) 53 = RLW 1998 (2) Raj. 852 ). It is also submitted that explanation appended to main provision is also part of the statute as held by the Division Bench of this Court in the case delivered in M/s. Shree Cement Ltd. vs. The Union of India (2002 (4) WLC Raj. 5 = RLW 2003 (2) Raj. 1358. The Division Bench in the said judgment (M/s. Shree Cement Ltd. (supra) held that explanation is part and parcel of section added to include in or exclude form ambit of main enactment with a view to clear some ambiguity in main portion but cannot be construed to wide ambit of provision. The petitioner further claimed the the law should be interpreted in favour of citizen and petitioner being citizen has right to contest the election in democratic process for the post under the provision of the Rajasthan Panchayat Raj Act. Therefore, the interpretation, which favours the petitioner, is to be accepted. Learned counsel for the petitioner also relied upon the judgment delivered in Municipal Council, Pali vs. Bhadur Raj Mehta (2000 (4) WLC (Raj.) 149 = RLW 2000 (1) Raj. 418), which says that interpretation of statute favouring the citizen, is just and proper.
(3.) LEARNED counsel for the petitioner further submitted that this court has, following earlier Division Bench decision of this Court, taken a view in the case of Rajendra Kumar vs. State of Rajasthan (RLW 2005 (1) Raj. 441) (By me), that a child given in adoption cannot be considered as child of that person, who gave his child in adoption to other person. Therefore, in view of the above when law permits petition to marry after death of his first wife then only children of the wife in existence can be taken into account and not the children born from earlier wife. I considered the submissions of learned counsel for the petitioner and perused the facts of the case. It appears that the learned counsel for the petitioner proceeded on assumption that this court is proposing to read something in the explanation, which has not been included in the explanation or this court is proposing to ignore the word `couple' mentioned in the explanation appended to Section 19 of the Act, of 1994 or intending to refer the letter `couple' as of dead letter or superfluous or useless lumber. The apprehension of petitioner has no real basis. This Court feels that the word `couple' has been used purposefully and rightly. ;