Bombay High Court: In an interim application filed by MLA Rajendra Gavit seeking rejection of the Election Petition under the provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (‘CPC’), wherein the petitioner challenged his General Election 2024 to the State Assembly on the ground that he had disclosed details of his second wife by adding an extra column in the form which was not as per the original format, a Single Judge Bench of Sandeep V. Marne, J., held that an election cannot be declared void under the Representation of the People Act, 1951 (‘RP Act’) solely because the candidate added a column in the election affidavit to disclose his second marriage.
Background:
The petitioner was a voter from 130-Palghar Assembly Constituency who claimed to be a social activist whereas Rajendra Gavit contested the election from the same Constituency as an official candidate of Shiv Sena and got elected on 23-11-2024. In his Form 26 Affidavit submitted along with the nomination form, Rajendra Gavit stated his second wife’s name.
The petitioner alleged that the second marriage of Rajendra Gavit was void and therefore the declaration made by Rajendra Gavit was false. He stated that in the format of Form No. 26 under Rule 4A of the Election Rules, there was no provision for making any declaration of second spouse and therefore the addition of an extra column was in violation of Rule 4A and also said that the Election Petition contained the necessary averments of Rajendra Gavit making false statement in his nomination form within the meaning of Section 123(4) of the RP Act, thereby committing corrupt practice for setting aside the election under Section 100(1)(b). Therefore, he challenged t Rajendra Gavit’s election under the provisions of Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) read with Section 123(4) of the RP Act.
Rajendra Gavit, regarding the petitioner’s contention that his second marriage was void, replied that he was not subject to the Hindu Marriage Act, 1955 as he was a tribal person belonging to Bhil Community. Further, he contended that the Election Petition did not disclose any cause of action for questioning his election and that mere addition of a column in Form No. 26, for the purpose of making true and correct disclosure could not be made a ground for seeking declaration of election as void. It was also submitted by him that there was no averment in the petition that the result of the election had been materially affected in any manner.
Analysis and Decision
The Court, firstly, considered whether the Election Petition complied with provisions of Section 83 of the RP Act which required that it must contain a concise statement of material facts based on which grounds enumerated under Section 100 are sought to be made out. The Court referred to Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 SCC OnLine SC 573, wherein it was laid down that “mere bald and vague allegations would not constitute sufficient compliance of requirement of stating material facts in the Election Petition”. The Court held that strict compliance with the provisions of the Act was a mandatory requirement, and the said petition did not adhere to it.
Thereafter, the Court moved on to analyse the grounds raised by the petitioner to challenge Rajendra Gavit’s election which were-
- Corrupt practice under Section 100(1)(b) read with Section 123(4);
- Improper acceptance of nomination under Section 100(1)(b) and 100(1)(d)(i); and
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Non-compliance with the provisions of the Constitution/Act/ Rules/Orders under the Act under Section 100(1)(d)(iv).
Regarding the first objection, the petitioner claimed that Rajendra Gavit failed to submit the proper and correct information. He contended that the disclosure of his second wife attracted corrupt practice within the meaning of Section 123(4) of the RP Act. The Court examined the provision and pointed out that any statement about the personal character or conduct of any other candidate which was found to be false must have been published by the candidate, but no such statement was made by Rajendra Gavit. Further, the Election Petition contained no averment that the second marriage of the petitioner never took place. The petitioner had, in fact, admitted the factum of the marriage and in that sense, had contradicted himself while accusing Rajendra Gavit of falsehood by claiming a second marriage. Thus, the Court concluded that the declaration did not constitute making of false statements by the returned candidate in the nomination form for attracting provisions of Section 123(4) of the RP Act.
Regarding the second objection, the petitioner alleged that the format prescribed under Rule 4A did not include any column for making declaration of income of second spouse and thus called the affidavit defective and accordingly its acceptance improper. The Court, however, held that mere disclosure of information in addition to the one required in the prescribed format would not ipso-facto render nomination to be defective and therefore, the addition of column did not constitute a valid ground of challenge under Section 100(1)(d)(i) of the Act.
Regarding the third objection, again the ground sought to be urged was premised on modification of Form 26 by Rajendra Gavit. The Court observed that Rajendra Gavit had made true and honest disclosure about details of both his spouses and instead the non-disclosure of such details would have attracted one of the grounds for maintaining a valid Election Petition under Section 100 of the RP Act. In the view of the Court, the memo of Election Petition lacked a concise statement of material particulars demonstrating violation of provisions of Constitution or RP Act or Rules made thereunder for maintaining a valid Election Petition and thus the contention was rejected.
The Court also opined that there might be cases where a candidate belonging to a particular religion, in which polygamy was not prohibited, had contracted multiple marriages. If contention of petitioner about impermissibility to add column in Form 26 Affidavit was 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 RP Act.
The petitioner also pleaded that the declaration was intended to exert undue influence over the voters by securing the vote of the local tribals as his second wife belonged to the local tribal community, but he could not prove that there was any direct or indirect interference on free exercise of the electoral right and consequently, this assertion was also not considered by the Court.
Thus, after due deliberations, the Court allowed the application of Rajendra Gavit and dismissed the Election Petition since the petitioner failed to disclose the real cause of action for challenging the election.
[Sudhir Brijendra Jain v. Rajendra Dhedya Gavit, 2025 SCC OnLine Bom 2447, decided on 23-6-2025]
Advocates who appeared in this case:
For the Applicant/Original Respondent: Nitin Gangal with Chandrakant Y. Tanawde, Namita Mestry, Prapti Karkera, Diksha Patil, Pramod B. Jedhe, Naresh B. Patil and Milind Choudhari
For the Petitioner: Neeta Karnik, Senior Advocate with Jimmy Mates Gonsalves, Shrirang P. Katneshwarkar, Kallies Albert Alphanso and Sandeep Gupta, i/b. Anthony Floriyen Foss