Can adoption save your election? Orissa High Court dismisses woman sarpanch’s petition in ‘two-child’ ruling

It is worthwhile to note that the legislature has referred to “two children” irrespective as to whether they are biological or adopted, said the Orissa High Court.

Findings

• Accepting the submission of the counsel for the petitioner of protective discrimination as stated would give an unfair advantage.
• It would mar the level playing field, and render the cutoff date, which is fixed to encourage family planning and control population explosion, otiose.
• On perusal of the collector’s order, this court is not persuaded to hold that due opportunity to the petitioner was not provided.
• For protecting the privacy of the children, their names are not mentioned and in fact this court expects the executive to redact the identity while referring to the children.
• It can be seen that the cutoff date in the case at hand is April 21, 1995.
• Notwithstanding the embargo on April 21, 1995, the third child was begotten much after the adoption of the first child, which was in 2005.
• On a bare perusal of the disqualification in terms of Section 25(1)(v) of the Orissa Gram Panchayat Act, 1964 it can be seen that one incurs such disqualification when one has more than two children by the cutoff date i.e. April 21, 1995.
• It is worthwhile to note that the legislature has referred to “two children” irrespective as to whether they are biological or adopted.
• Excluding the adopted child from the scope of two children as envisaged under Section 25(1)(v) of the Orissa Gram Panchayat Act, 1964 would amount to rewriting the section.
• Rewriting of the section is per se impermissible.
• This court does not find any infirmity in the order passed by the collector disqualifying the petitioner.
• Accordingly, on consideration of rival submissions, this court does not find any merit in the writ petition.

Background

• The petitioner was elected as sarpanch of Tainsara Gram Panchayat under Lathikata Panchayat Samiti in Sundargarh district.
• Her election, however, was nullified by the collector, Sundargarh through an order dated June 24, 2025, invoking Section 25(1)(v) of the Orissa Gram Panchayat Act, 1964.
• The provision disqualifies any person from being elected as a Sarpanch or Panchayat member if they have more than two children after the cut-off date of April 21, 1995.
• The section mandates that a person with more than two living children is disqualified from contesting for the post of sarpanch.
• In 2023, Orissa High Court had highlighted the rule establishing a two-child norm for candidates at the time of nomination filing, ensuring eligibility is not affected by subsequent births after the nomination deadline.
• The collector found that the petitioner had three children after the cut-off date and was therefore ineligible to hold the elected post.
• Earlier, the petitioner had approached the high court twice, following which the matter was remanded to the collector for reconsideration.
• The present petition challenged the fresh order of disqualification passed after remand.

Arguments

• Advocate S K Dwivedy, appearing for the petitioner argued that the disqualification was illegal as one of the three children was adopted and not biologically born to the petitioner.
• The counsel submitted that the adopted child should not be counted while applying the two-child norm.
• He informed the court that adequate opportunity had not been given to his client to establish that the first child was adopted and therefore could not form the basis of disqualification.
• Reliance was also placed on constitutional principles of protective discrimination under Article 15(4) and 243N of the Constitution, with the argument that penalising adoption, especially of a girl child would discourage socially beneficial practices.
• Additional Government Advocate C R Swain, opposing the plea, submitted that once a child is legally adopted, the child becomes part of the family for all purposes.
• The AGA argued that the statute makes no distinction between biological and adopted children.
• The legislative intent behind the two-child norm was to promote population control, he submitted.