13 hours ago
HC: Can't void tribal MLA's win over 2nd wife's name in affidavit
Mumbai: Observing that Shiv Sena MLA Rajendra Gavit, who belongs to the tribal Bhil community, "candidly and honestly" disclosed information regarding his second marriage on his affidavit for the assembly election last year, Bombay HC on Monday dismissed a plea to declare his win void.
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"The addition of a column for giving particulars of income and income tax of spouse No. 2 in the affidavit does not constitute a valid ground of challenge," said Justice Sandeep Marne.
Sudhir Jain, an activist from Palghar, an ST reserved seat, objected to the addition of the column 'spouse No. 2' in Gavit's affidavit filed in form 26 along with his nomination form. Gavit named Rupali Gavit as his second wife.
Jain contended that Gavit's second marriage is void under Hindu Marriage Act (HMA) and, therefore, his declaration about Rupali is false.
Such disclosure was not only incorrect but also against the prescribed format under the Conduct of Election Rules, he said. It rendered the nomination form defective and void under Section 100 of Representation of the People Act, said his petition. Jain said under Section 33B, candidates are required to disclose information only under the Act and Conduct of Election Rules.
Senior advocate Neeta Karnik, for Jain, said there can be no room for tinkering with the format.
Gavit's advocate, Nitin Gangal, said he made a true and honest disclosure of his second marriage. Also, while SC struck down Section 33B, it did not restrict a candidate from making any voluntary disclosure besides the given format, he said. Agreeing with him, Justice Marne said, "Mere disclosure of information in addition to the one required in the prescribed format would not ipso facto render nomination to be defective.
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Gangal argued that HMA does not apply to tribals, and that the Bhil community that has a custom of polygamy. Karnik said the false declaration of the second marriage was made to exert undue influence on tribal voters since Rupali was from the local tribal community.
Justice Marne said the issue is whether there is falsity in Gavit's claim and disclosure of the second marriage by adding a column in the form 26 affidavit would attract Section 100.
"The answer to the question would emphatically be in the negative," he added.
Justice Marne said there may be cases where a candidate belongs to a religion that does not prohibit polygamy. "If the contention of the petitioner about the impermissibility to add a column in the form 26 affidavit is accepted, such a candidate would never be able to contest any election as disclosure of information about an additional wife would attract Section 100."
He disagreed with Karnik that prohibition under HMA would automatically render Gavit's disclosure of his relationship with Rupali to be false. He said it was necessary for Jain to state in the petition that Gavit's second marriage did not occur, adding: "The petitioner, in fact, admits the fact... that Rupali Gavit is the second wife of the respondent."
Jain's plea also didn't state how by adding a second spouse's name the poll result was materially affected, he said. Neither was there a pleading on how undue influence was exerted on voters, he added.
