Yes, it is legally correct that a person having more than two children is disqualified from being a member of the managing committee of a cooperative housing society. This provision flows from Section 154B-23 of the Maharashtra Cooperative Societies (MCS) Act, which lays down the grounds of disqualification for committee members.
Relevant Statutory Provision
Section 154B-23 (v) specifically provides that a person shall be disqualified if he or she is subject to any disqualification similar to those mentioned in Section 73CA (1)(f)(vii) of the Act. Although Section 73CA primarily applies to other cooperative societies and not directly to housing societies, the legislature has intentionally used the phrase “similar disqualifications”, thereby extending its effect to housing societies as well.
Under Section 73CA (1)(f)(vii), a person who has more than two children is not eligible to contest or continue as a managing committee member.
Judicial Validation by Courts
The Bombay High Court, while interpreting this provision, has upheld the validity of this disqualification. The court relied upon earlier judgments of the Supreme Court, which have consistently held that:
• The right to contest an election is not a fundamental right
• It is only a statutory right, which can be regulated or curtailed by law
• The provision is in furtherance of family welfare and population control policies, aligned with the National Population Policy
Therefore, the restriction is neither arbitrary nor unconstitutional.
Does Adoption of a Third Child Cause Disqualification?
No. Adoption does not attract disqualification.
The Explanation to Section 73CA (1)(f) clearly states that the term “child” does not include an adopted child. Hence:
• A person with two biological children and one adopted child remains eligible to be a managing committee member
• Adoption does not violate the two-child norm under the Act
What If a Third Biological Child Is Given for Adoption?
This is a crucial distinction.
If a person gives birth to a third biological child, the disqualification operates immediately upon birth. Even if the child is subsequently given up for adoption:
• The legal disqualification cannot be undone
• There is no exception provided in the statute for such a situation
• The intent of the law focuses on birth, not custody or upbringing
Hence, giving a third biological child for adoption does not restore eligibility.
Objective Behind the Two-Child Norm
The primary objective of this provision is to:
• Promote family planning
• Support population control measures
• Encourage responsible parenthood among elected representatives
Courts have repeatedly observed that legislators are well within their powers to impose such conditions on elective posts in cooperative institutions.
Conclusion
To summarise:
• Yes, having more than two biological children disqualifies a person from the managing committee
• Adopted children are excluded from this calculation
• Disqualification is automatic on the birth of a third biological child
• The rule is legally valid, fair, and constitutionally upheld
Members aspiring to contest or continue in the managing committee should be fully aware of this statutory bar to avoid future disputes or invalidation of elections.
