IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:29/08/2005
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
O.A.No.106 of 2005
T.R.Baalu :Petitioner
-vs-
1.S.Purushothaman
2.Bader Syed
3.P.Thiagarajan
4.K.Pugazhenthi
5.P.Rajan
6.S.Vivekananda
7.The Returning Officer
(Deputy Commissioner (Education)
Corporation of Chennai)
No.3 Madras (South) Parliamentary
Constituency, Rippon Buildings
Chennai 600 003.
8.The State Election Commissioner
State Election Commissioner
Fort St. George, Chennai 9.
9.The Chief Election Commissioner
Election Commission of India
Nivachan Sadan, New Delhi.
(Respondents 3 to 15, 17 to 21, 23 to 29,
31 and 33 in Election Petition No.6/2004
are set exparte. Hence, they are not joined
as parties to this application) .. Respondents
Original application filed praying to reject the above said
Election Petition under Order VII Rule 11(a) of the Code of Civil Procedure.
!For Petitioner : Mr.V.T.Gopalan,
Senior Advocate
for M/s.A,Balaguru,
P.Wilson, NSV. Sivaraj
^For Respondents : Mr.T.V.Ramanujam
Senior Advocate
for M/s.R.Palanisamy
J.Om Prakash for R1
M/s.Zafurullah Khan
S.Thiruvenkatasamy for R2
Mr.M.R.Raghavan
for RR7 to 9
:ORDER
Election Petition No.6 of 2004 has been filed by the first respondent
herein seeking a declaration that the election of the returned candidate
namely the first respondent therein (petitioner herein) for No.3, Madras
(South) Parliamentary Constituency in the election held on 10.5.2004 is void.
2. Now, the instant original application has been filed by the first
respondent in the Election Petition No.6/2004 seeking rejecting of the said
election petition under Order VII Rule 11(a) of the Code of Civil Procedure.
3. The case of the petitioner is as follows:
(a) The election petition is not maintainable in law. The pleadings
in the election petition do not project any cause of action and do not contain
any material facts constituting any cause of action and a triable issue.
Under the circumstances, the election petition is, therefore, liable to be
rejected in limini under Order VII Rule 11(a) C.P.C.
(b) The entire averments in the election petition project only one
fact that the petitioner herein had disclosed in Annexure-I of Form No.2A made
under Rule 4 of the Conduct of Election Rules, 1961, relating to nomination
papers, that he has two spouses and, the said fact taken along with Section 17
of the Hindu Marriage Act and Sec.494 of the I.P.C., would disqualify him from
contesting in the election and as such there has been improper acceptance of
his nomination to contest for the South Madras Parliamentary Constituency.
(c) The judgment of the Supreme Court in Union of India Vs.
Association of Democratic Rules ((2002) 5 SCC 294), relied on by the election
petitioner, does not apply to the present facts of the case, and it is totally
misquoted. The law laid down by the Supreme Court in the said judgment, is
that the Election Commission should require in the exercise of its powers
under Article 32 4 of the Constitution of India, each candidate to submit as a
necessary part of his nomination papers, information on an affidavit in
respect of items specified by the Supreme Court. The Supreme Court further
held that the limitation on plenary character of power is when Parliament or
State Legislature has made a valid law relating to or in connection with the
elections, the Commission is required to act in conformity with the said
provisions. In case where the law is silent, Article 324 is a reservoir of
power to act for the avowed purpose having free and fair elections. To put in
other words, the Election Commission under Article 324 can only supplement and
not supplant the Leg islation occupying a particular field. Sec.100 of the
Representation of People Act sets out various grounds for declaring an
election to be void, and nobody has the powers to add any further grounds in
Sec.100. The election petitioner has filed the above said Election Petition
to declare the election of the petitioner herein as void on the grounds within
the meaning of Sec.80 read with 100(1)(d)(iv) of the Representation of People
Act. From the provisions of law under which the election petitioner seeks to
have the petitioner’s election set aside, i t is clear that there should be a
non-compliance of either the provisions of the Constitution or of the
Representation of People Act or of any rules or orders made under this Act.
As regards any orders made under this Act, the Election Commission of India
has not been vested with any powers to make any orders under the provisions of
the Representation of People Act. It was, therefore, the Supreme Court held
in the decision stated supra, that in the absence of any parliamentary
legislation occupying a particular field, the Election Commission can issue
orders and directions under Article 324 of the Constitution.
(d) In this case, the petitioner had given necessary information as
required of him by declaring that he has two spouses living. Therefore, he
had complied with the order made by the Election Commission under Article 324
of the Constitution. He had not violated any provisions of the Constitution.
Non-compliance with the order made under Article 324 of the Constitution has
to be distinguished from noncompliance of any provisions of the Constitution.
The Parliament while indicating in Sec.100(1)(d)(iv) of the Act, regarding
non-compliance of the provisions of the Constitution did not go further and
stipulate orders made under the Constitution also as it had stipulated in
respect of “this Act” (meaning of Representation of People Act) or of any
Rules or Orders made under this Act. If Sec.100(1)(d)(iv) has to be read as
including non-compliance with the orders made under the provisions of the
Constitution, then it will tantamount to redrafting Sec.1 00(1)(d)(iv) by
adding the words “Orders made under provisions of Constitution” for which
nobody has the power excepting the Parliament. As pointed out by the Supreme
Court in the said decision, the whole object of orders being made under
Article 324 of the Constitution in fields which are not occupied by
Parliamentary Legislation, that is the conduct of elections, is to get
information to be filed as Annexure to the nomination forms, which are merely
information regarding a candidate so as to enable the voters to judge for
themselves as to whether a candidate should be elected or not. If the
particulars that have got to be filled up by a candidate in the nomination
paper are not filled up, then perhaps the Returning Officer could reject the
nomination paper itself. If particulars have been filled up and the facts
disclosed in filling up such particulars have not led to any conviction for
any offence, which alone might become relevant under Sec.8 of the
Representation of People Act, there is no question of any disqualification of
a person from contesting the election, which would arise.
(e) The thrust of the case of the election petitioner is that the
disclosure of two wives by the petitioner herein in the Annexure to the
nomination papers and as such Sec.17 of the Hindu Marriage Act read with
Sec.494 of the I.P.C. would disqualify him. This averment has been made by
the election petitioner without any regard to either the ingredients of Sec.17
of the Hindu Marriage Act or the ingredients of Sec.494 of the I.P.C. read
with Sec.198 of the Criminal Procedure Code. The Supreme Court has repeatedly
held that the meaning of expression used in Sec.494 of the I.P.C. namely
“such marriage being void” must mean only marriages validly made. If the
marriage is not a valid marriage, then it is no marriage at all in the eye of
law. The bare fact of a man and a woman living as husband and wife, does not
at any rate normally give them the status of husband and wife. As per Sec.17
of the Hindu Marriage Act, unless the marriage is celebrated or performed with
proper ceremonies and in due form, it cannot be said to be solemnized. It is,
therefore, essential for the purpose of Sec.17 of the Act that the marriage to
which Sec.494 of I.P.C. applies, should have been celebrated with proper
ceremonies and in due form. Merely going through certain ceremonies with the
intention that the parties be taken to be married will not make the ceremonies
prescribed by law or approved by any established custom. Under Sec.198(1)
proviso (c), it has been specifically indicated that in the case of a wife,
complaint may be made on her behalf by certain persons. This provision shows
that where the wife is aggrieved by an act of bigamy by her husband, she alone
is the competent person to give a complaint, but such complaint could be laid
by certain other relatives of the wife as stated in the proviso (c) to
Sec.198(1) on behalf of the said wife. In the case of husband, in the absence
of any such provisions, the husband alone should give a complaint. The
position in law is well established that there could be a prosecution and a
conviction for an offence under Sec.494 of I.P.C. only on the basis of a
complaint filed by the wife or her relatives or by the husband and by nobody
else. In this case, the election petitioner is not a person who could
complain against an act of bigamy against another candidate, and such a
complaint is specifically barred under the statutes. The averments regarding
bigamy have been made without any material fact namely that the marriage was
solemnized after following the prescribed ceremonies. The mere allegation of
bigamy without any proof cannot be taken to be a conviction within the meaning
of Sec.8 of the Representation of People Act for the purpose of disqualifying
a candidate.
(f) The above said election petition has been filed only for the sake
of being rejected by this Court, and such rejection has to be done under Order
VII Rule 11(a) of C.P.C. since the election petition taken as a whole does
not show any cause of action or a triable issue, and the election petition is
therefore not maintainable in law, and the same has to be rejected in limini.
The election petition is liable to be rejected in view of the fact that under
Rule 12 of Rules of the Madras High Court Election Petitions 1967 Original
Side Rules, it is clearly prescribed that subject to the foregoing rules and
to the extent they are not inconsistent with the provisions of the Act, the
Rules of the High Court 1956 (Original Side) shall as far practicable be
observed in all Election Petitions and all applications taken in respect of
them.
(g) The election petitioner herein has signed the election petition in
Tamil, and as such the procedure prescribed in Rule 9 of Order II relating to
the form of proceedings framed under the Rules of the Madras High Court
Original Side, has not been adhered to in that it has not been duly affirmed
before the Commissioner of Oaths or a Notary Public which verification should
be in accordance with Form 7 and 8 which specifically prescribes a particular
jurette for persons signing in Tamil. Hence, this application.
4. The first respondent filed a counter with the following
allegations.
(a) It is not for the petitioner to state that there is no cause of
action or any material facts constituting a cause of action or triable issue.
The petitioner is reluctant to face the trial and wants summary disposal of
the petition by attempting to seek for rejection of the plaint. The election
petition clearly discloses the cause of action. The cause of action means a
bundle of facts, which would go to prove a certain matter. In this case, the
cause of action is clearly stated in the petition, and the facts would further
go to show that the petitioner herein has contracted the second marriage when
the first marriage was in subsistence and therefore, has violated the
provisions of Sec.494 I.P.C. and Sec.17 of the Hindu Marriage Act.
Therefore, the acceptance of the nomination of such person is invalid in the
eye of law, and consequently, it has materially affected the result of the
election of the returned candidate. The Supreme Court in Union of India Vs.
Association of Democratic Rules ((2002) 5 SCC 294) has categorically held that
it is mandatory for a candidate to file an affidavit stating his educational
qualification, his assets, criminal charges if any etc. The entire judgment
has been misinterpreted by the petitioner. The judgment while dealing with
Article 324 of the Constitution of India, reaffirms the supremacy and
superintendence of conduction of the elections by the Election Commission.
The Hon’ble Supreme Court went on to add that in the absence of any
legislation on the field, the requirement to give certain information under
Art.324 would give over-riding powers to the election commission to direct the
candidates to furnish information. If the petitioner is aggrieved by the said
order of the Hon’ble Supreme Court, he could have challenged the same by way
of a review or sought to move a larger bench of the Hon’ble Supreme Court.
(b) The declaration of facts in the form of an affidavit whether in
exercise of powers under Article 324 or in view of the judgment cited above,
will not help the petitioner in any manner and it is for the Courts to
interpret the law. While interpreting Art.324, the Hon’ ble Supreme Court has
held that superintendence, direction and control of election vest with the
Election Commission and therefore, it goes without saying that the matters
which are not specifically dealt with under the Representation of Peoples Act
will still be a ground for declaration that the election is invalid under
Sec.100(d)(1) of the R. P. Act, as the acceptance of an invalid nomination
is a material fact and by improper acceptance of the nomination, the law could
be set into motion, since Sec.100(1)(d)(IV) would clearly state that by
noncompliance of the provisions of Constitution or any rules or orders under
this Act this election can be set aside. Violation of the Constitution would
mean violation of any law made in exercise of the powers under the
Constitution of India and therefore, the provisions of the Constitution as
regards the powers under Art.324, would also attract the provisions under
Sec.100(1)(d)(IV) o f the R.P. Act. Giving such a declaration is not an
empty formality, and the duty of the candidate does not end by merely
declaring for the sake of declaring and the purpose of declaration ought to be
read into the intention. The Hindu Marriage Act defines that the second
marriage when the first marriage is subsisting, is unlawful and is termed as
bigamous. It would be fallacious to assume that the said declaration is only
a formality and that it does not have any legal repercussions and provision of
Sec.100(1)(d)(IV) of the R.P. Act would show that the petitioner who has been
elected as a Member of Parliament from the Madras South Constituency and whose
nominations ought to have been rejected, has come out with the pleading as if
the judgment cited supra merely directs to declare and render information and
that it does not require compliance or sanctions in the case of violation.
(c) The Supreme Court has held that taking by oath is not an empty
formality and it has some credibility and meaning and if there is a violation
of law and when the same is in exercise of powers of the Constitution, then
the candidate’s affirmation on oath would become invalid. It is not only the
information but also the contents of the information, which are important. If
the contents of the information discloses any violation of any law, order or
direction issued in exercise of powers under the Constitution of India, it
would clearly spell out that such persons are not eligible to stand in
elections. It is not the case of the petitioner that he does not have two
wives. In case of clear admission of fact, there is no requirement to
separately prove the contents when the petitioner himself has admitted that he
has two wives, and therefore, any attempt to interpret the Section would be
wholly immaterial. If it is the case of the petitioner that he does not have
two wives, then the declaration under oath in the form of an affidavit becomes
false. Whenever declaration of facts by a candidate is later found to be
false, it would attract the provisions of the respective law.
(d) The defence taken by the petitioner that no ceremony was performed
and there is no proper solemnization, is impermissible in law as there is
clear admission at the first instance by the petitioner that he has two wives.
This is not a case of criminal prosecution under Sec.494 I.P.C. by invoking
the provisions of Sec.198 of Cr.P.C. In this case, in view of the admitted
position that too on oath in the form of an affidavit, it would not be
required to be separately proved. The question of prosecution as stipulated
under Sec.198 of Cr.P.C. for the offence under Sec.494 of I.P.C. does not
arise in view of the said admission. The provisions of law as regards
acceptance of nomination and commission of admitted offence have to be
examined in detail by the Court of law and it cannot be summarily done in the
application to reject the petition. The Hon’ble Supreme Court as well as this
Court has repeatedly held that Order 7 Rule 11 can be applied only when there
is no cause of action. In this case, the cause of action has been clearly set
out in the petition and similarly, the violation of the provisions of law,
etc. has also been stated, and therefore, seeking to reject the petition
stating as if there is no cause of action, which has arisen, is totally
misconceived. The very fact that the petitioner has chosen to file an
affidavit denying the application of the provisions of the Constitution, the
judgment of the Hon’ble Supreme Court and the rule making power under Article
324 would justify and go to show that there are triable issues. These issues
cannot be summarily decided in the course of the enquiry to reject the plaint.
(e) The first respondent has to make detailed legal submissions with
regard to the application of Sec.100 of the Representation of People Act,
Article 324, the provisions of the Representation of People Act, the question
as to whether the judgment of the Supreme Court is not res-integra and further
as to whether Sec.100 of the said Act falls within the meaning of occupied
field of legislation not leaving it open for the Election Commission in
exercise of powers under Article 32 4, and all these questions could be gone
into in detail and short cut method for dismissing the application cannot be
adopted. The Court is not at this stage required to go into the comparative
pleas and the defence of the petitioner with regard to the averments in the
petition. What is required at this stage is only to ascertain whether there
is prima facie, for a triable cause of action on the basis of the averments in
the petition. The election petition cannot be rejected in limini without
trial as all these questions ought to be decided at length, and prima facie
averments would disclose existence of violation of law. The Court is not
expected to sieve through the evidence with a magnifying lens at this stage.
The test is whether the averments made in the petition, on the face of it,
would give rise to triable issues or not.
(f) The election petitioner knows to read and write English and has
affixed the signature in Tamil, and thereby, the provisions of Order 2 Rule 9
would not be attracted. Otherwise, no person would be able to affix the
signature in his native langua if the petition is in English. The requirement
to explain the averments by the Commissioner of Oaths or a Notary would arise
only when a person is unable to read and write English. In this case, the
said condition is satisfied, and hence, insisting upon verification would be
meaningless. Therefore, the petitioner’s apprehension is totally misconceived
and without any basis. The petitioner has not made out a case for rejection
of the petition, and there is a substantial question of law and interpretation
of provisions of the Constitution as well as the Representation of People Act,
and there are various judgments which ought to be relied upon. Hence, this
application is liable to be dismissed.
5. As could be seen above, the main election petition is filed by the
first respondent herein seeking to declare the election of the returned
candidate the first respondent therein for No.3 Madras (South) Parliamentary
Constituency in the election held on 10.5.2004 as void on the ground that the
declared candidate has two spouses living and has declared assets in their
names; that he has admitted the fact that he has contracted second marriage
when the first spouse was living; that since the declared candidate is a
Hindu, the provisions of Hindu Marriages Act, 1955, would apply to him; that
he has committed bigamy within the meaning of Sec.17 of the Hindu Marriages
Act, and he is liable to be punished under Sections 494 and 495 of the I.P.C.;
that in view of the admission made by him, it would be clear that he has
violated the law for the time being in force, and hence, he should be termed
as one who is statutorily disqualified. Pending the said election petition,
the declared candidate who is the first respondent in the election petition,
has taken out the instant application to reject the election petition under
Order 7 Rule 11(a) of the C.P.C. stating that the averments in the election
petition taken as a whole do not make out any cause of action or a triable
issue, and therefore, the election petition itself was not maintainable in
law.
6. Advancing his arguments on the application seeking to reject the
election petition, Mr.V.T.Gopalan, learned Senior Counsel appearing for the
petitioner, would submit that in the election petition, the first
respondent/petitioner was harping upon only one issue namely when the declared
candidate gave the particulars in Columns (A) and (B) relating to the details
of movable assets and immovable assets in the annexure filed along with the
nomination papers, he had disclosed the property owned by Porkodi as well as
Renukadevi, who have been described as his two spouses, and thus, by
contracting second marriage during the life time of the first marriage, the
declared candidate has violated the provisions of Sec.17 of the Hindu Marriage
Act and Sec.49 4 of I.P.C., and hence, the election of the petitioner/first
respondent was void on the grounds within the meaning of Sec.80 read with
Sec.100(1)(d)(iv) of the Representation of People Act; that the instant
application has been filed by the declared candidate in the election petition
under Order VII Rule 11 of the C.P.C. read with Sec.83(1) of the
Representation of People Act to reject the election petition itself in limini
and summarily, since the election petition does not disclose any cause of
action or any triable issue; that it has been well settled by the Apex Court
that an election petition can be summarily dismissed, if it does not disclose
any cause of action, and the Court need not probe into the facts on the basis
of the controversies raised in the counter; that the only issue raised by the
election petitioner is that the declared candidate has two wives and the said
issue per se does not disclose any cause of action or a triable issue even if
the disclosure made by the returned candidate as stated above, described the
properties as belonging to two spouses; that along with the nomination paper,
a candidate is also obliged to file an affidavit stating as to whether he had
suffered any conviction or whether any criminal cases are pending against him;
that the declared candidate in his affidavit has stated that he has not
suffered any conviction and that no criminal cases were pending against him;
that the said fact is not disputed by the election petitioner; that it is a
fact that the returned candidate has filled up the columns A and B relating to
the assets and disclosed under the columns Spouse(s) “assets owned by two
spouses” and as such, has complied with all the requirements of disclosure of
assets in the names of the spouses, and thus, the declared candidate cannot be
accused of any non-disclosure in this behalf.
7. Added further, the learned Senior Counsel that insofar as the
prosecution culminating in conviction which would be regarded as a
disqualification to contest in the election, Sec.8 of the Representation of
People Act, 1951, provides certain prosecutions and convictions as
disqualifications; that the returned candidate has not suffered any such
prosecution or conviction, which would be regarded as a disqualification as
per Sec.8 of the Act; that apart from that, that was not the case of the
election petitioner also; but, the election petitioner has stated that the
returned candidate is liable for prosecution under Sections 494 and 495 of the
Indian Penal Code; that Sec.17 of the Hindu Marriage Act and Sections 494 and
495 of I.P.C., considered along with Sec.198 of Cr.P.C., contemplate that a
charge of bigamy has to be complained of only by the first wife or certain
named close relatives mentioned in Sec.198 of Cr.P.C.; that no other person is
entitled in law to complain about the bigamy, and as such, even the election
petitioner cannot lay complaint of bigamy against the declared candidate; that
under Sec.17 of the Hindu Marriage Act, any marriage between two Hindus
solemnized after the commencement of the Act, is void, if at the date of such
marriage, either party had a husband or wife living and that the provisions of
Sections 494 and 495 of I.P.C. shall apply accordingly.
8. Placing reliance on the decisions reported in AIR 1965 SUPREME
COURT 1564; AIR 1966 SUPREME COURT 614; AIR 1971 SUPREME COURT 1153 and AIR
1991 SUPP.(2) SC 616, the learned Senior Counsel would submit that the Apex
Court on number of occasions has interpreted the word ‘ solemnized’ to the
effect that the marriage shall be celebrated with proper ceremonies and in due
form and that any conviction based on admission alone cannot stand; that in
the instant case, the election petitioner has no locus standi to complain
about bigamy against the petitioner herein; that there is not even any
averment that the declared candidate has contracted the second marriage, the
solemnization of which was as per Sec.7 of the Hindu Marriage Act, and as
such, Sec.17 read with Sections 494 and 495 would be attracted; that whether a
second marriage was solemnized as per Sec.7 of the Hindu Marriage Act, is a
crucial and material fact which has got to be pleaded in the case of bigamy;
that in the absence of any pleading, even assuming without admitting that the
petitioner in the above application and the first respondent in the election
petition has contracted second marriage that by itself would not attract the
application of Sec.17 of the Hindu Marriage Act or the penal provisions of
Sec.494 of I.P.C.; that in the absence of necessary pleading in that regard,
no evidence can be let in and no amount of evidence can cure the defect in the
pleading; that in the absence of any conviction for bigamy, the mere fact that
a person has disclosed the properties in the names of the spouses cannot by
itself be regarded as a disqualification; that the stand taken by the election
petitioner in the counter if read together, proves the inconsistent stand
taken with regard to the proof necessary in establishing bigamy; that the
requirement as to the disclosure of particulars of assets of the spouse(s)
came to be insisted upon by the Election Commission pursuant to the directions
of the Supreme Court in the decision reported in (2002) 5 SCC 294, wherein the
Supreme Court held that where the provisions of the Representation of People
Act are silent, the Election Commission in exercise of its powers under
Article 324 of the Constitution of India, can give directions and the Election
Commission was directed to insist upon the disclosure of assets by his
spouse(s), the very object being that the voter should be informed about the
candidate that he has to choose judged by disclosures; that pursuant to the
directions of the Supreme Court, the Representation of People Act was amended,
by which Sec.33-A was introduced to the effect that only when a person is
accused of any offence etc., in a pending case, the conviction of a person
alone to be stated in the affidavit and under Sec.33(B) it was provided that
no candidate is liable to disclose or furnish any such information in respect
of his election which is not required to be disclosed or furnished under the
Act or Rules made thereunder; that Sec.33(B) was struck down by the Apex Court
in its decision reported in (2003)4 SCC 399, wherein it was held that the
earlier judgment of the Supreme Court reported in (200 2) 5 SCC 294 had
attained finality, and it was further held that a voter has got a fundamental
right under Article 19(1)(a) to know the antecedents of a candidate for
various reasons recorded in the earlier judgment as well as in that judgment,
and thus, the requirement to state the movable and immovable assets of the
spouse(s) as directed in the earlier judgment of the Supreme Court in (2002) 5
SCC 294 holds the field, and the object for making such disclosure was only to
put the voter on notice about the antecedents of the candidate, and such
disclosure cannot be taken to be a disqualification and particularly when the
returned candidate has not suffered any disqualification under Sec.8 of the
Representation of People Act.
9. Advancing his further arguments, the learned Senior Counsel would
submit that the election petition has got to be viewed with reference to
Sec.100(i)(d)(iv) of the Representation of People Act, which is the only
Section providing for setting aside an election; that the Hon’ble Supreme
Court has declared the law that the grounds for declaring an election void
must strictly conform to the grounds mentioned in Sec.100 and the allegations
of disqualification have to be construed very strictly, and it cannot be
analysed by importing any meaning other than the permissible on strict
interpretation of the expression used; that further the directives issued by
the Election Commission under Article 324 of the Constitution cannot be
brought within the ambit and scope of Sec.100(1)(d)(iv) for the reason that
Sec.100(1)(d)( iv) merely states “by any non-compliance with the provisions of
the Constitution or of this Act or of any rules or orders made under this
Act”; that if the directives issued by the Election Commission under Article
324 of the Constitution, is also to be brought within the scope of
Sec.100(1)(d)(iv), then the said provision has to be rewritten as “by any
non-compliance with the provisions of the Constitution or of any directives
issued under the Constitution etc.”, which excepting the Parliament, no other
person can have the power to add words to the statute; that the mere
allegation of bigamy, in the face of the admitted fact that the first
respondent has not suffered any conviction, cannot come within the ambit of
Sec.100(1)(d)(iv); that if Sec.100(1 )(d)(iv) is analysed, non-compliance of
the provisions of the Constitution can be a ground for setting aside the
election; that the election petitioner has not alleged any non-compliance of
the provisions of the Constitution; that apart from that, there was no
non-compliance of the provisions of the Representation of People Act or of any
Rules or Order made under the Act, and thus, there is absolutely no averment
in the election petition that the returned candidate has committed any
violation of the provisions of the Representation of People Act or any Rules
or Orders made under the Act; that the prime plea of the election petitioner
that the first respondent has committed violation of the provisions of the
Hindu Marriage Act, which is a parliamentary enactment, and hence, the
declared candidate’s election is to be set aside under Sec.100(1)(d)(iv)
cannot be countenanced in law; that if such an interpretation is accepted,
then, it would be really tantamount to adding words to Sec.100(1)(d)(iv) for
which nobody has got the power excepting the Parliament; that the said
provision cannot be stretched the way the election petitioner would like to do
by bringing the mere charge of bigamy within the ambit of Sec.100(1)(d)(iv);
that the election petitioner cannot take advantage of and convert the
directives of the Supreme Court and consequently, the directives of the
Election Commission, to disclose the assets of the spouse(s) for the
information of the voter to decide as to whom the voter should caste his vote
as a disqualification which would be a ground for declaring the election to be
void under Sec.100(1)(d)(iv); that the plain language of the provision does
not admit any such disqualification as a ground for setting the election void;
that the averments in the election petition taken as a whole making the
disclosure of assets in the name of spouse(s) which is required to be complied
with by a candidate for the information of the voter cannot be treated as a
ground for declaring the election to be void under Sec.100(1)(d)(iv); that
even assuming that the declared candidate has two spouses to be true, which
was the only ground taken in the election petition, the election of the
returned candidate cannot be set aside under Sec.100(1)(d)(iv); that the
election petitioner has not disclosed any material fact or cause of action
disclosing a triable issue; that the election petitioner cannot succeed under
the provisions of Sec.100(1)(d)(iv) on a mere charge of bigamy, and therefore,
the election petition is totally frivolous and has got to be rejected
summarily under Order VII Rule 11.
10. Added further, the learned Senior Counsel that the election
petition has to be signed by the election petitioner and verified in the
manner laid down in the Code of Civil Procedure for the verification of
pleadings; that under Rule 2 of Rules of Madras High Court Election
Petitions 1967, the election petition should be verified in the manner
provided for under C.P.C.; that under Order VI Rule 15(4), the person
verifying the pleadings should also furnish an affidavit in support of his
pleadings; that in the instant case, the election petitioner has not filed any
affidavit in support of his pleadings to verify the same as required under the
said Rule, and thus, the election petition is liable to be dismissed in limini
under Sec.83(3) of the Representation of People Act; that apart from that, the
election petitioner has signed the election petition in Tamil without the
prescribed jurette form by persons signing in Tamil; that the election
petitioner would state in his counter that even though he has signed in Tamil,
he knew English; that such a plea cannot be countenanced in view of
requirement of Rule 9 of Order II of the Original Side Rules read with Form 7
and 8 which specifically prescribes a particular Jurette for persons signing
in Tamil; that on that ground also, the election petition is liable to be
dismissed for non-compliance of the provisions of the Representation of People
Act, and hence, the election petition has got to be rejected as one not
maintainable. In support of his arguments, the learned Senior Counsel cited
very many decisions of the Apex Court.
11. Countering the above contentions, the learned Senior Counsel
Mr.T.V.Ramanujam, appearing for the election petitioner, the first respondent
herein, would submit that it cannot be stated that there was no cause of
action or any material fact constituting a cause of action or a triable issue;
that the returned candidate has come forward with the instant application
seeking a summary disposal by attempting to seek the rejection of the plaint
by invoking the provisions under Order VII Rule 11; that under Order VII Rule
11, a plaint could be rejected when it does not disclose a cause of action;
that in the instant case, the election petitioner has clearly disclosed a
cause of action, and therefore, the allegation that there was no cause of
action to proceed was totally misconceived; that the cause of action would
mean a bundle of facts which would go to prove certain allegations; that in
the election petition, the election petitioner has clearly stated the cause of
action; that he has also clearly averred that the returned candidate has
contracted the second marriage in violation of the provisions of law; that the
said bigamous marriage is punishable under Sec.494 of I.P.C. and Sec.17 of
the Hindu Marriage Act; that those facts are clearly mentioned in the
affidavit, and those facts are true, and hence, the acceptance of the
nomination papers by the Returning Officer was invalid in the eye of law, and
thus, it has materially affected the result of the election of the returned
candidate; that the election petition filed by the election petitioner, if
read as a whole, would clearly reveal that there was a clear cause of action,
and hence, the improper acceptance of the nomination by the Returning Officer
cannot be summarily decided; that it has to be decided only on evidence; that
the Apex Court in Union of India Vs. Association of Democratic Rules (2002) 5
SCC 2940 has held that it was mandatory for a candidate to file an affidavit
stating his educational qualification, his assets, criminal charges, etc.;
that the entire judgment has been misinterpreted by the petitioner herein;
that it is pertinent to point out that the Apex Court has observed in the said
judgment that in the absence of any legislation on the field, the requirement
to give certain information under Article 324 would give over-riding powers to
the Election Commission to direct the candidates to furnish information; that
it is not the question of a field being occupied by a law made by the
Parliament; that it related to the very exercise of the powers under Article
324; that if the petitioner was aggrieved by the said order of the Apex Court,
then he would have challenged the same by way of a review; that the Apex Court
has given a categorical ruling which is the law of the land, under Article 141
of the Constitution; that the question is not as to whether Article 324
supplants the legislation or supplements the legislation while interpreting
Article 324 of the Constitution; that the Apex Court has categorically held
that such declaration of information is essential in the interest of
democratic principles; that it was a right of every voter/electorate to know
about the background, qualificat ion and assets of the candidate; that in the
circumstances, the declaration of facts in the form of the affidavit whether
in exercise of the powers under Article 324 or in view of the judgment of the
Apex Court would not help the petitioner in any manner, and it is for the
Courts to interpret law.
12. Added further the learned Senior Counsel that the election of the
first respondent returned candidate is invalid under Sec.100(d)(i) of the
Representation of the People Act as there was acceptance of an invalid
nomination; that this was a material fact; that by improper acceptance of the
nomination, the law could be set in motion; that according to
Sec.100(1)(d)(iv) of the Act, whenever there is a noncompliance of the
provisions of the Constitution or Rules or Orders under the Representation of
the People Act, an election can be set aside; that it should not be forgotten
that under such circumstances, the provisions of the Constitution insofar as
the exercise of powers under Article 324 was concerned, would only spell out
the Constitutional powers of the Election Commission; that the violation of
the Constitution would mean the violation of any law made in exercise of the
powers under the Constitution of India, and hence, it would attract the
provisions of Sec.100(1)(d)(iv) of the Act; that every candidate is required
to give a declaration; that it is to be remembered that the declaration is not
an empty formality; that the duty of the candidate does not come to an end by
making a mere declaration; that the purpose of the declaration is that it
should reach the voter so that the voter before exercising the franchise, can
have an idea about the candidate; that it would be imperative to know that the
representatives of the people should be above board and they themselves should
not be seen to be violating the law; that the Hindu Marriage Act was a law
made by the Parliament of India in exercise of the law making powers under the
Constitution; that the said Act defines second marriage when the first
marriage is subsisting is unlawful and bigamous, and hence, the question can
be decided only during trial.
13. The learned Senior Counsel would further submit that the returned
candidate as a Member of the Parliament has taken oath stating that he would
bear true faith and allegiance to the Constitution of India as by law
established that he would uphold the sovereignty and integrity of India; that
the Apex Court has held that taking up oath was not an empty formality, and it
has credibility and meaning; that if there was any violation of law, when the
same was in exercise of the powers of the Constitution, the candidate’s
affirmation on oath would become invalid; that the information furnished by
the candidates were not only information, but also contents of information
which were very important; that when the contents of the information given by
the candidate disclose violation of law or of order or of direction issued in
exercise of the powers under the Constitution of India, it would clearly
indicate that such person was not eligible to contest in election; that it was
not the case of the returned candidate that he did not have two wives; that it
was a clear case of admission of fact, and hence, there was no requirement to
separately prove the contents; that the returned candidate has putforth his
own interpretation of law and has stated that the second marriage was not
validly done; that in the instant case, if the returned candidate comes
forward with a case to state that he actually did not have two wives, then the
declaration given by him by way of an affidavit, becomes false, and this would
also attract the provisions of the respective law; that in view of the
admission made by the returned candidate, it is for him to state that there
was no solemnization of marriage as required in law, and thus, the second
marriage was invalid, and it was not for the election petitioner to plead or
prove the same in view of the admission made, and thus, the issues cannot be
decided summarily, and under the stated circumstances, it cannot be stated
that the election petitioner has not disclosed any cause of action; that the
election petitioner has disclosed the necessary cause of action; but, whether
such cause of action would be sufficient or not to get the relief has got to
be decided only after the framing of issues and the evidence adduced on those
issues by the parties.
14. Added further the learned Senior Counsel that the requirement to
get the election petition verified by an interpreter or an Oath Commissioner
would arise only when the election petitioner was not able to read and write;
that such a procedure cannot be stretched to mean and include the case where
the signature was made in Tamil, and therefore, the contention of the returned
candidate was totally misconceived; that so far as the contention of the
returned candidate that the supporting affidavit was not filed by the election
petitioner was concerned, it cannot be a ground to reject the election
petition for the reason that if the supporting affidavit was not filed by the
election petitioner along with the election petition, he can be directed to
furnish the same before the commencement of the trial; that even after such a
direction issued by the Court, if the election petitioner does not comply with
the same, it could be considered as one incurable; that the non-filing of the
affidavit at this stage cannot be termed as incurable defect; but it could be
cured by filing a proper affidavit, and hence the application seeking
rejection of the election petition has got to be dismissed. The learned
Senior Counsel also cited number of decisions of the Apex Court in support of
his contentions.
15. The main election petition seeking a declaration that the
election of the returned candidate namely the first respondent therein, is
filed on the ground that the returned candidate has admitted in the affidavit
filed along with the nomination papers that he has committed bigamy, and
hence, his election has got to be declared as void under Sec.100(1)(d)(i) and
(iv) of the Representation of the People Act. Pending the said election
petition, the returned candidate has made the instant application to reject
the election petition under Order VII Rule 11(a) of the Civil Procedure Code
stating that the election petition even taken as a whole, does not show any
cause of action or a triable issue. Therefore, the question that would arise
for consideration would be “whether the election petition requires rejection
for want of a cause of action and a triable issue?”. In considering such a
preliminary objection that the election petition requires a rejection under
Order VII Rule 11, the law is well settled that the test should be whether any
relief as prayed for, could be granted in favour of the election petitioner if
the averments made in the election petition, were proved to be true. The
Court has to find out whether those averments disclose a cause of action or a
triable issue, but should not probe into the facts on the basis of the
controversy raised by the other party. At this juncture, it would be more
appropriate to reproduce the decision of the Supreme Court in AZHAR HUSSAIN V.
RAJIV GANDHI (1986 (SUPP) SUPREME COURT CASES 315) as to when and under what
circumstances the Court could exercise its powers to summarily dismiss the
election petition. The Apex Court has held thus:
“11. In view of this pronouncement there is no escape from the conclusion
that an election petition can be summarily dismissed if it does not furnish
cause of action in exercise of the powers under the Code of Civil procedure.
So also it emerges from the aforesaid decision that appropriate orders in
exercise of powers under the Code of Civil Procedure can be passed if the
mandatory requirements enjoined by Section 83 of the Act to incorporate the
material facts in the election petition are not complied with. This Court in
Samant case has expressed itself in no unclear terms that the omission of a
single material fact would lead to an incomplete cause of action and that an
election petition without the material facts relating to a corrupt practice is
not an election petition at all. So also in Udhav Singh case the law has been
enunciated that all the primary facts which must be proved by a party to
establish a cause of action or his defence are material facts. In the context
of a charge of corrupt practice it would mean that the basic facts which
constitute the ingredients of the particular corrupt practice alleged by the
petitioner must be specified in order to succeed on the charge. Whether in an
election petition a particular fact is material or not and as such required to
be pleaded is dependent on the nature of the charge levelled and the
circumstances of the case. All the facts which are essential to clothe the
petition with complete cause of action must be pleaded and failure to plead
even a single material fact would amount to disobedience of the mandate of
Section 83(1)(a). An election petition therefore can be and must be dismissed
if it suffers from any such vice. The first ground of challenge must
therefore fail.
12. Learned counsel for the petitioner has next argued that in any event the
powers to reject an election petition summarily under the provisions of the
Code of Civil Procedure should not be exercised at the threshold. In
substance, the argument is that the court must proceed with the trial, record
the evidence, and only after the trial of the election petition is concluded
that the powers under the Code of Civil Procedure for dealing appropriately
with the defective petition which does not disclose cause of action should be
exercised. With respect to the learned counsel, it is an argument which it is
difficult to comprehend. The whole purpose of conferment of such powers is to
ensure that a litigation which is meaningless and bound to prove abortive
should not be permitted to occupy the time of the court and exercise the mind
of the respondent. The sword of Damocles need not be kept hanging over his
head unnecessarily without point or purpose. Even in an ordinary civil
litigation the court readily exercises the power to reject a plaint if it does
not disclose any cause of action. Or the power to direct the concerned party
to strike out unnecessary, scandalous, frivolous or vexatious parts of the
pleadings. Or such pleadings which are likely to cause embarrass ment or
delay the fair trial of the action or which is otherwise an abuse of the
process of law. An order directing a party to strike out a part of the
pleading would result in the termination of the case arising in the context of
the said pleading. The courts in exercise of the powers under the Code of
Civil Procedure can also treat any point going to the root of the matter such
as one pertaining to jurisdiction or maintainability as a preliminary point
and can dismiss a suit without proceeding to record evidence and hear
elaborate arguments in the context of such evidence, if the court is satisfied
that the action would terminate in view of the merits of the preliminary point
of objection. The contention that even if the election petition is liable to
be dismissed ultimately it should be so dismissed only after recording
evidence is a thoroughly misconceived and untenable argument. The powers in
this behalf are meant to be exercised to serve the purpose for which the same
have been conferred on the competent court so that the litigation comes to an
end at the earliest and the concerned litigants are relieved of the
psychological burden of the litigation so as to be free to follow their
ordinary pursuits and discharge their duties. And so that they can adjust
their affairs on the footing that the litigation will not make demands on
their time or resources, will not impede their future work, and they are free
to undertake and fulfil other commitments. Such being the position in regard
to matter pertaining to ordinary civil litigation, there is greater reason for
taking the same view in regard to matters pertaining to elections. So long as
the sword of Damocles of the election petition remains hanging an elected
member of the legislature would not feel sufficiently free to devote his
whole-hearted attention to matters of public importance which clamour for his
attention in his capacity as an elected representative of the concerned
constituency. The time and attention demanded by his elected office will have
to be diverted to matters pertaining to the contest of the election petition.
Instead of being engaged in a campaign to relieve the distress of the people
in general and of the residents of his constituency who voted him into office,
and instead of resolving their problems, he would be engaged in campaign to
establish that he has in fact been duly elected. Instead of discharging his
functions as the elected representative of the people, he will be engaged ina
struggle to establish that he is indeed such a representative, notwithstanding
the fact that he has in fact won the verdict and the confidence of the
electorate at the polls. He will have not only to win the vote of the people
but also to win the vote of the court in a long drawn out litigation before he
can wholeheartedly engage himself in discharging the trust reposed in him by
the electorate. The pendency of the election petition would also act as a
hindrance if he be trusted with some public office in his elected capacity.
He may even have occasion to deal with the representatives of foreign powers
who may wonder whether he will eventually succeed and hesitate to deal with
him. The fact that an election petition calling into question his election is
pending may, in a given case, act as a psychological fetter and may not permit
him to act with full freedom. Even if he is made of stern mettle, the
constraint introduced by the pendency of an election petition may have some
impact on his subconscious mind without his ever being or becoming aware of
it. Under the circumstances, there is greater reason why in a democratic
set-up, in regard to a matter pertaining to an elected representative of the
people which is likely to inhibit him in the discharge of his duties towards
the nation, the controversy is set at rest at the earliest, if the facts of
the case and the law so warrant. Since the court has the power to act at the
threshold the power must be exercised at the threshold itself in case the
court is satisfied that it is a fit case for the exercise of such power and
that exercise of such powers is warranted under the relevant provisions of
law. To wind up the dialogue, to contend that the powers to dismiss or reject
the election petition or pass appropriate orders should not be exercised at
the stage of final judgment after recording the evidence even if the facts of
the case warrant exercise of such powers, at the threshold, is to contend that
the legislature conferred these powers without point or purpose, and we must
close our mental eye to the presence of the powers which should be treated as
non-existent. The court cannot accede to such a proposition. The submission
urged by the learned counsel for the petitioner in this behalf must therefore
be firmly repelled.”
From the above it would be quite clear that the powers conferred on the
competent Court, should serve the purpose for which the same have been
conferred, and it would be meaningless and misconceived to contend that even
if the election petition was liable to be dismissed, ultimately it should be
so dismissed after a trial was over. Before analysing whether the averments
made in the election petition, would disclose a cause of action and a triable
issue, it would be better to look into the provisions of law as to the
qualification, disqualification and the grounds on which an election of a
candidate can be declared void.
16. Article 84 of the Indian Constitution speaks of the qualification
for Membership of Parliament. The same reads as follows:
“84. Qualification for membership of Parliament A person shall not be
qualified to be chosen to fill a seat in Parliament unless he-
(a) is a citizen of India, and makes and subscribes before some person
authorised in that behalf by the Election Commission an oath or affirmation
according to the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Council of States, not less than thirty
years of age and, in the case of a seat in the House of the People, not less
than twenty-five years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by
or under any law made by the Parliament.”
17. What are all the disqualifications for membership in either House
of the Parliament are enumerated under Article 102 of the Constitution, which
reads thus:
“102. Disqualifications for membership (1) A person shall be disqualified
for being chosen as, and for being, a member of either House of Parliament –
(a) if he holds any office of profit under the Government of India or the
Government of any State, other than an office declared by Parliament by law
not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgement of allegiance
or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
(2) A person shall be disqualified for being a member of either House of
Parliament if he is so disqualified under the Tenth Schedule.”
18. Sec.8 of the Representation of the People Act, 1951, enumerates
disqualification on conviction for certain offences. Sub-sections (1 ) and
(2) of Sec.8 of the Act speak of the disqualification on conviction for
certain offences. But, nowhere the bigamy is shown as one of the grounds for
disqualification. It is true that sub-section (3) to Sec.8 states that a
person convicted of any offence and sentenced to imprisonment for not less
than two years, other than any offence referred to in sub-section (1) or
sub-section (2), shall be disqualified from the date of such conviction and
shall continue to be disqualified for a further period of six years since his
release. At this juncture, it remains to be stated that it is not the case of
the election petitioner that the returned candidate does not possess requisite
qualification to be a Member of the Parliament as found under Article 84 or he
suffers any disqualification as shown in Article 102 or he is disqualified
under Sec.8 of the Representation of the People Act.
19. What are all stated in the election petition in paragraph 43 is
“Therefore admittedly the first respondent who has contracted with second
marriage when a spouse is living and therefore has committed bigamy within the
meaning of Sec.17 and is therefore liable for prosecution under Sec.494 and
495 of the I.P.C.” From the very reading of the pleading by the election
petitioner, it would be quite clear that the returned candidate is liable to
be prosecuted under Sections 494 and 495 of the I.P.C. To invoke the
disqualification under Sec.8(3) of the Act, the candidate should have been
convicted of an offence and sentenced to imprisonment for not less than two
years for any offence other than those referred to in sub-section (1) or
sub-section (2). It is not the case of the election petitioner that the
returned candidate was ever prosecuted or stood charged, tried, found guilty
or sentenced to imprisonment. Hence, he does not suffer any disqualification
under Sec.8(3) of the Act.
20. What are all alleged by the election petitioner is that the
returned candidate while making his declaration as to the movable and
immovable assets in Columns A and B in form 2-A attached to the nomination
papers, has stated that those assets were owned by his two spouses. It has to
be pointed out that the case of the election petitioner is not the
non-disclosure of any assets; but, it is his case that the returned candidate
has disclosed that he has got two spouses, which would constitute an
admission, and by that admission, he has violated the law of the land for the
time being in force, and the same would directly attract the penal provisions
of Sections 494 of the I.P.C., and that he can be termed as one who has
statutorily disqualified. According to Sec.17 of the Hindu Marriage Act,
1955, any marriage between the two Hindus solemnized after the commencement of
this Act, is void, if at the date of such marriage either party had the
husband or wife, as the case may be, living and the provisions of Sections 494
and 495 of I.P.C. shall apply accordingly. Marrying again during the life
time of husband or wife is void by reason of its taking place during the life
time of such husband or wife and is liable to be punished with imprisonment of
either description for a term which may extend to 7 years and also liable for
fine under Sec.494 of the Penal Code. Placing much reliance on the above
provisions of law under the Hindu Marriage Act and the Indian Penal Code, the
election petitioner has put forth his case stating that the returned candidate
has violated the law for the time being in force. A reading of the provisions
under Sec.17 of the Hindu Marriage Act would make it clear that any marriage
between the two Hindus solemnized after the commencement of the Act, is void,
if on the date of such marriage either party has the other spouse living, and
apart from that, the provisions under Sections 494 and 495 of the Penal Code
would apply accordingly. In order to invoke and give effect to Sec.17 of the
said Act, so as to declare a marriage between the two Hindus as void for the
reason of such marriage taking place during the life time of the other spouse,
it is very essential to show that such marriage which is sought to be declared
as void should have been solemnized. The Supreme Court in catena of decisions
has interpreted the word ‘solemnized’ as employed in Sec.1 7 of the Hindu
Marriage Act, to the effect that such marriage should have been celebrated
with proper ceremonies and in due form. No doubt, bigamy is punishable under
Sec.494 of the I.P.C. But, an act of bigamy can be complained of only by the
first wife or by the named close relatives in view of Sec.198 of Cr.P.C., and
no one else in law is entitled to complain about the bigamy. It is not the
case of the election petitioner that there was any complaint as against the
declared candidate as to the alleged bigamous marriage or he stood charged,
tried, found guilty or sentenced to imprisonment. As per Sec.198 of Cr.P.C.,
the election petitioner cannot file a complaint of bigamy against the first
respondent.
21. Attractive though the contention put forth by the election
petitioner’s side that the returned candidate himself has made an admission in
the affidavit that he has got two spouses, which would stand a good proof that
he contracted the second marriage, the same would not stand the scrutiny of
law, in view of the following pronouncements of the Apex Court. The Apex
Court has held in BHAURAO SHANKAR LOKHANDE AND ANOTHER V. THE STATE OF
MAHARASHTRA AND ANOTHER (AIR 1965 SUPREME COURT 1564) as follows:
“(5) The word ‘solemnize’ means, in connection with a marriage, to celebrate
the marriage with proper ceremonies and in due form, according to the Shorter
Oxford Dictionary. It follows, therefore, that unless the marriage is
‘celebrated or performed with proper ceremonies and due form’ it cannot be
said to be ‘solemnized’. It is, therefore, essential, for the purpose of S.17
of the Act, that the marriage to which S.494, I.P.C. applies on account of
the provisions of the Act, should have been celebrated with proper ceremonies
and in due form. Merely going through certain ceremonies with the intention
that the parties be taken to be married, will not make the ceremonies
prescribed by law or approved by any established custom.
(6) We are of opinion that, unless the marriage which took place between
appellant No.1 and Kamalabai in February 1962 was performed in accordance with
the requirements of the law applicable to a marriage between the parties, the
marriage cannot be said to have been ‘ solemnized’ and, therefore, appellant
No.1 cannot be held to have committed the offence under S.494, I.P.C.”
22. Stating the law that the admission of marriage by an accused in a
criminal proceedings under Sec.494 of the I.P.C. is no evidence of marriage,
the Apex Court in KANWAL RAM AND OTHERS V. THE HIMACHAL PRADESH
ADMINISTRATION (AIR 1966 SUPREME COURT 614) has held thus:
“Secondly, it is clear that in law such admission is not evidence of the fact
of the second marriage having taken place. In a bigamy case, the second
marriage as a fact, that is to say, the ceremonies constituting it, must be
proved.”
23. It has been held by the Apex Court in PRIYA BALA GHOSH V. SURESH
CHANDRA GHOSH (AIR 1971 SUPREME COURT 1153) as follows:
“17. In Kanwal Ram v. The Himachal Pradesh Admn. (1966) 1 SCR 539 = (AIR
1966 SC 614) this Court again reiterated the principles laid down in the
earlier decision referred to above that in a prosecution for bigamy the second
marriage has to be proved as a fact and it must also be proved that the
necessary ceremonies had been performed. Another proposition laid down by
this decision, which answers the second contention of the learned counsel for
the appellant, is that admission of marriage by an accused is no evidence of
marriage for the purpose of proving an offence of bigamy or adultery. On the
evidence it was held in the said decision, that the witnesses have not proved,
that the essential ceremonies had been performed.”
24. From the above decisions, it would be abundantly clear that even
if an accused facing a charge for bigamous marriage under Sec.494 of I.P.C.
makes an admission before the Court, he could not be found guilty in view of
the admission made by him; but, before finding him guilty, it would require
the necessary pleading and the proof as to the bigamous marriage. At this
juncture, it has to be pointed out that the election petitioner has made an
averment stating that the returned candidate is liable for prosecution under
Sec.494 of I.P.C. in view of the admission made by him in an affidavit filed
along with the nomination papers before the Returning Officer. Except by
stating that the returned candidate has admitted that he has got two spouses,
the election petitioner has not made any allegations which are necessary,
requisite, crucial, and material facts as to the alleged bigamous marriage of
the returned candidate. In view of all the above, the Court has to
necessarily state that the contention of the election petitioner’s side that
the declared candidate has violated the law for the time being in force, and
he is to be termed as one statutorily disqualified has got to be
discountenanced.
25. It is mandatory under Sec.83(1)(a) of the Representation of the
People Act 1951, that the election petition should contain a concise statement
of the material facts on which the election petitioner relies. Needless to
say that the material facts are those facts which if established, would give
the election petitioner the relief asked for. The test to be applied is
whether the Court can give a direct verdict in favour of the election
petitioner in case the returned candidate had not appeared to oppose the
election petition on the basis of the facts pleaded in the petition. Material
facts are those facts which would form a basis for the allegations made in the
petition and would constitute a cause of action as found in Civil Procedure
Code. The Apex Court in the decision reported in (2001) 8 SUPREME COURT CASES
233 (HARI SHANKER JAIN V. SONIA GANDHI) has discussed about the mandatory
nature of Sec.83(1)(a) of the Act as to the material facts and cause of action
in an election petition, as follows:
“23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall
contain a concise statement of the material facts on which the petitioner
relies. By a series of decisions of this Court, it is well settled that the
material facts required to be stated are those facts which can be considered
as materials supporting the allegations made. In other words, they must be
such facts as would afford a basis for the allegations made in the petition
and would constitute the cause of action as understood in the Code of Civil
Procedure, 1908. The expression “cause of action” has been compendiously
defined to mean every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the judgment of Court.
Omission of a single material fact leads to an incomplete cause of action and
the statement of claim becomes bad. The function of the party is to present
as full a picture of the cause of action with such further information in
detail as to make the opposite party understand the case he will have to meet.
(See Samant N.Balkrishna v. George Fernandez, Jitendra Bahadur Singh v.
Krishna Behari.) Merely quoting the words of the section like chanting of a
mantra does not amount to stating material facts. Material facts would
include positive statement of facts as also positive averment of a negative
fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has
held, on a conspectus of a series of decisions of this Court, that material
facts are such preliminary facts which must be proved at the trial by a party
to establish existence of a cause of action. Failure to plead “material
facts” is fatal to the election petition and no amendment of the pleadings is
permissible to introduce such material facts after the time-limit prescribed
for filing the election petition.”
If this test as enunciated by the Supreme Court in the above decision, is
applied to the present allegations, then it can be well stated that the
election petition not only lacks in material facts, but also does not disclose
a cause of action.
26. As stated supra, the election petitioner has sought to avoid the
election of the declared candidate under Sec.100(1)(d)(i) and (iv) of the
Representation of the People Act. Sec.100(1)(d)(i) and (iv) read:
“100.Grounds for declaring election to be void (1) Subject to the provisions
of sub-section (2) if the High Court is of opinion –
(a) …..
(b) …..
(c) …..
(d) that the result of the election, in so far as it concerns a returned
candidate, has been materially affected-
(i)by the improper acceptance of any nomination, or
(ii) …..
(iii) ….
(iv) by any non-compliance with the provisions of the Constitution or of this
Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be
void.”
In order to find out whether the election petitioner has disclosed any cause
of action or a triable issue, the averments in the election petition have to
be viewed with reference to Sec.100(1)(d)(i) and (iv) of the said Act. Under
the Representation of the People Act, Sec.10 0 is the only provision which
speaks of the grounds for setting aside the election.
27. The Apex Court had an occasion to consider the jurisdiction of
the High Court and the scope of the provisions of Sec.100 of the
Representation of the People Act in HARI SHANKER JAIN V. SONIA GANDHI ((20
01) 8 SUPREME COURT CASES 233) and held thus:
“8. It is clear from a conspectus of the abovesaid provisions that
jurisdiction to try an election petition has been conferred on the High Court.
The grounds for declaring an election to be void must conform to the
requirement of Section 100 and the operative part of the order of the High
Court must conform to the requirement of Sections 98 and 99 of RPA, 1951. The
vires of any law may be put in issue by either party to an election petition
before the High Court and the High Court can adjudicate upon such an issue if
it becomes necessary to do so for the purpose of declaring an election to be
void under Section 100 and for the purpose of making an order in conformity
with Sections 98 and 99 of RPA, 1951. The only restriction on the power of
the High Court, as spelled out by clause (a) of Article 329 of the
Constitution, is that the validity of any law relating to the delimitation of
constituencies or allotment of seats to such constituencies, made or
purporting to be made under Article 327 or Article 328, cannot be called in
question and hence cannot be so adjudged. A Judge of the High Court can,
therefore, while hearing an election petition, adjudicate upon the validity of
any statutory provision subject to two limitations: (1) that it must be
necessary to go into that question for the purpose of trying an election
petition on any one or more of the grounds enumerated in Section 100 and for
the purpose of granting any one or more of the reliefs under Sections 98 and
99 of the Act, and ( ii) a specific case for going into the validity or vires
of any law is made out on the pleadings raised in the election petition.”
28. The very reading of the decision of the Supreme Court stated
above would make it clear that the grounds for declaring the election void
must strictly conform to the grounds mentioned in Sec.100, and the allegations
of disqualification found in the election petition have to be interpreted very
strictly. The election petitioner has sought the relief of declaration that
the election of the returned candidate the first respondent therein, is void
on the grounds of (1) improper acceptance of the nomination and (2)
non-compliance with the provisions of the Constitution or of the
Representation of the People Act or any Rules or Orders made under that Act.
It is not in dispute that after the filing of the nomination papers by the
returned candidate, the election petitioner made a representation on 24.4.2004
requesting the Returning Officer to reject the nomination of the first
respondent/elected candidate on the ground of bigamy. After giving sufficient
opportunity of being heard to both sides, the objection raised by the election
petitioner, was rejected by the Returning Officer at the time of scrutiny on
the ground that when there was no conviction for bigamy by the Criminal Court,
there was no bar for the first respondent returned candidate in contesting the
election. The contention of the election petitioner’s side that he was to
adduce proof if there was a denial; but, in the instant case, in view of the
admission by the first respondent returned candidate, it need not be
statutorily proved cannot be countenanced. The reason adduced by the
Returning Officer for rejecting the objection raised by the election
petitioner on the ground of bigamy was a sound one, since mere admission made
by the candidate in the affidavit filed along with the nomination papers
stating that he has two spouses, by itself would not amount to criminal
offence, and he never stood charged, tried or punished for bigamy.
29. The election petitioner has also sought to avoid the election of
the returned candidate on the ground stated in Sec.100(1)(d)(iv) of the
Representation of the People Act. In order to avoid the election under the
said provision by declaring it as void, the election petitioner must make
requisite and specific allegations as to the noncompliance with the provisions
of the Constitution or the provisions of the Representation of the People Act
or of any Rules or Orders made under that Act. Needless to say that under
Sec.100(1)(d)(iv), it is absolutely necessary for the election petitioner to
plead that the result of the election insofar as it concerns the returned
candidate, has been materially affected by the non-compliance with the
provisions of the Act or of the Rules. A careful reading of the entire
election petition would reveal that there is absolutely no averment in the
election petition that the returned candidate has not complied with the
provisions of the Constitution or has committed any violation of the
provisions of the Representation of the People Act or any Rules or Orders made
under that Act. In the absence of any material facts in the election
petition, it can be well stated that the election petitioner has not strictly
complied with the mandatory provisions under Sec.8 3(1)(a) of the
Representation of the People Act, nor has he made any necessary averments or
materials disclosing a cause of action and as such, any triable issue. Mere
allegation that the returned candidate has admitted in the statement of assets
that he has got two spouses cannot be considered as necessary and requisite
facts supporting his case or it would make a basis for the allegations made in
the election petition or it would constitute a cause of action as understood
in the Civil Procedure Code. In short, if the allegations are viewed with
reference to Sec.100(1)(d)(i) or 100(1)(d)(iv) of the Representation of the
People Act, then the same do not disclose a cause of action or a triable
issue. Hence, on those grounds, this Court is of the view that the election
petition has got to be necessarily rejected.
30. Insofar far as the contention of the petitioner that the election
petition was not properly verified, and supporting affidavit was not filed,
this Court is of the opinion that on that ground, the election petition cannot
be rejected. So far as the other ground raised by the petitioner herein that
an affidavit in support of his pleadings by the person to verify the pleadings
in the election petition as required under Order VI Rule 15(4) of C.P.C., was
not furnished Is concerned, the same cannot also be a reason to reject the
election petition for the reason that if such an affidavit was not filed by
the election petitioner, he can be directed by the Court to file such an
affidavit before the commencement of the trial, and hence, the same cannot
also be considered as a ground to reject the election petition in the instant
case. The above point is answered accordingly.
31. For the foregoing reasons, this Court is of the firm opinion that
the election petition is liable to be rejected. Therefore, this original
application is allowed. Consequently, Election Petition No.6 of 2004 is
rejected.
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