Candidate Disclosing Information About Second Wife In Election Affidavit Not By Itself Ground To Unseat Him: Bombay High Court

If a candidate's religion or culture permits polygamy, then he can add an additional column in the Form 26 Affidavit and disclose details of the second spouse and the same act would not disqualify him from contesting elections nor would he be unseated later by virtue of an election petition, held the Bombay High Court on Monday (June 23).Single-judge Justice Sandeep Marne upheld the election of Shiv Sena candidate Rajendra Gavit from Palghar Constituency to the Maharashtra State Legislative Assembly, elections of which were held last year. A social activist - Sudhir Jain from Palghar, who claimed to be a voter of the constituency, had questioned Gavit's election on the ground that he had in the Form 26 Affidavit submitted along with the nomination form, disclosed the income details of his second wife by adding an extra column in the form. Jain contended that the form did not seek information about the second spouse but only of the first one and thus Gavit by adding extra column did not adhere to the norms as mandated under the Representation of Peoples Act. He also alleged that the second marriage was impermissible and void and therefore, mentioning details about second wife was wrong and on this very ground, Gavit must be unseated. In its 36-page judgment, the judge noted that Gavit contended to hail from the Bhil tribal community in which custom of polygamy existed. It however observed that it is not necessary to go into the issue of validity or otherwise of the second marriage performed by Gavit."Issue is whether there is falsity in the claim made by the Respondent (Gavit) and whether disclosure of factum of second marriage by adding a column in the Form 26 Affidavit would attract a ground under Section 100 of the Act? The answer to the question would emphatically be in the negative," the judge said. Justice Marne added,"There may be cases where a candidate belonging to particular religion, in which polygamy is not prohibited, has contracted multiple marriages. If contention of Petitioner about impermissibility to add column in Form 26 Affidavit is accepted, such candidate would never be able to contest any election as disclosure of information about additional wife would attract ground under Section 100 of the Act. In my view therefore mere addition of column in Form 26 Affidavit would not attract a ground for challenging the election. Thus, no ground under Section 100(1)(d)(i) or (iv) is made out in the pleadings raised in the election petition, warranting its dismissal under order VII Rule 11 of the Code."Further, the bench held that mere disclosure of information in addition to the one required in the prescribed format would not ipso-facto render nomination form to be defective. "Therefore, addition of column for giving particulars of income and income tax of Spouse No. 2 in the Affidavit in Form 26 by the Respondent does not constitute a valid ground of challenge under Section 100(1)(d)(i) of the Act. The averments made by the Petitioner in this regard do not make out ground of improper acceptance of the nomination under Section 100(1)(d)(i) of the Act. In absence of necessary averments disclosing improper acceptance of the nomination, the Election Petition cannot be maintained and deserves rejection under Order VII Rule 11 of the Code," the bench held. In fact, Gavit made a "true and honest disclosure" about details of PAN and status of filing of Income Tax Returns by both his spouses in Form 26 Affidavit. There is no averment in the petition as to how disclosure of details of PAN and status of filing of Income Tax Returns of Spouse No. 2 violates provisions of Rule 4A of the Election Rules, the judge said. "On the other hand, non- disclosure of such details would have attracted one of the grounds for maintaining a valid Election Petition under Section 100 of the Act. However, merely because the Respondent made true disclosure of details of PAN and status of Income Tax Returns of his second spouse, it cannot be contended that there is any violation of Rule 4A of Election Rules on his part. In my view therefore the memo of Election Petition lacks concise statement of material particulars demonstrating violation of provisions of Constitution/Act of 1951/Rules made thereunder for maintaining a valid Election Petition," Justice Marne opined. The judge expressed that he was not impressed by the submission that prohibition under the provisions of the Hindu Marriage Act, 1955 on contracting second marriage would automatically render disclosure of relationship by Gavit and Rupali Gavit to be false. "In order to make out a ground of making false statement in the nomination form, it was necessary for the Petitioner to aver in the petition that marriage between Respondent and Rupali Gavit has never occurred. Far from making such averment in the petition, the Petitioner infact admits the fact in para-10(d) of the Election Petition that Rupali Gavit is the second wife of the Respondent. On the contrary,...

Candidate Disclosing Information About Second Wife In Election Affidavit Not By Itself Ground To Unseat Him: Bombay High Court

Narsi Benwal

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