SULOCHANA KANDI Vs. DIPTIREKHA KANDI

JUDGEMENT

(1.) THE petitioner, opposite party No. 1 and one Kanchanlata Kandi filed their nominations for election to the post of Sarpanch of Golarhat Grama Panchayat which was reserved for Scheduled Caste woman. The opposite party No. 1 and Kanchanlata Kandi were 'BAURI' by caste and were thus Scheduled Caste candidates. The petitioner originally belonged to 'MANGATA JANA' caste which is not a Scheduled Caste but claims to have married to one Paramananda Kandi of village Pandit Patna who is 'BAURI' by caste. By virtue of such marriage, the petitioner claimed that she is a Scheduled Caste candidate and she accordingly filed the nomination as wife of Paramananda Kandi for the said election. The opposite party No. 1 objected to the nomination of the petitioner on the ground that she is not a Scheduled Caste and therefore could not contest the election to the post of Sarpanch of Golarhat Grama Panchayat which was reserved for a Scheduled Caste woman. The objection of the opposite party No. 1 was, however, rejected by the opposite party No. 2. Thereafter, the candidates contested the election and the petitioner secured 963 votes while the opposite party No. 1 secured 909 votes and Kanchanlata Kandi secured 668 votes and the petitioner was declared elected as Sarpanch of Golarhat Grama Panchayat on 28.2.2002. The election of the petitioner was challenged by the opposite party No. 1 in Election Misc. Case No. 4 of 2002 in the Court of the Civil Judge (Junior Division), Kendrapara on the ground that the petitioner did not belong to a Scheduled Caste community and therefore could not contest the election for the post of Sarpanch of Golarhat Grama Panchayat which was reserved for a Scheduled Caste woman.

(2.) IN the said Election Misc. Case No. 4 of 2002 the opposite party No. 1 examined three witnesses including herself and the petitioner examined four witnesses including herself and her husband Paramananda Kandi. The petitioner also produced a marriage certificate issued under the Special Marriage Act, 1954 to prove her marriage with Paramananda Kandi. In the judgment dated 12.11.2002, the learned Civil Judge (Junior Division), Kendrapara held that the marriage of the petitioner with Paramananda Kandi could not be shown to have been solemnized at Puri and that the marriage certificate (Ext. A) was obtained on 14.1.2002 just few days before the election process for the disputed election had started and that the petitioner could not prove by unquestionable and unimpeachable evidence that she has been assimilated in the family of Paramananda Kandi and that the relations and caste people of the community of Paramananda Kandi have accepted or recognized her as a member of their community and therefore the petitioner is not a Scheduled Caste woman entitled to contest as a Scheduled Caste candidate for the election to the post of Sarpanch of Golarhat Grama Panchayat which was reserved for a Scheduled Caste woman and accordingly declared the election of the petitioner to the post of Sarpanch as invalid and further declared the opposite party No. 1 as duly ejected Sarpanch of Golarhat Grama Panchayat.

(3.) AT the hearing, Mr. I. C. Dash, learned counsel for the petitioner submitted that the finding of the learned District Judge that the marriage certificate (Ext. A) does not have any evidentiary value to prove the marriage between the petitioner and Paramananda Kandi is not within the jurisdiction of the Court deciding an election dispute and that the validity of a marriage can only be decided by a Special Court conferred with the jurisdiction to decide a matrimonial dispute. He submitted that under Sub section (1) of Section 24 of the Special Marriage Act a marriage solemnized under the Act can be declared null and void by the Special Court constituted under the said Act only on a petition presented by either party to the marriage and, therefore, the learned Civil Judge and the learned District Judge could not declare the marriage of the petitioner with Paramananda Kandi void on the petition filed by the opposite party No. 1. In support of this submission, he cited the decisions of the Supreme Court in Shri Banwari Dass v. Shri Sumer Chand and Ors., AIR 1974 SC 1032, Thampanoor Ravi v. Charupara Ravi and Ors., AIR 1999 SC 3309, and Hari Shanker Jain v. Sonia Gandhi, AIR 2001 SC 233, and a decision of the Division Bench of this Court in A. Deenabandhu Reddy and Ors. v. Commissioner of Consolidation, Bhubaneswar and Ors., 74 (1992) CLT 708 and a decision of the Full Bench of this Court in Harekrushna Samal and Ors. v. Kasi Maliik and Ors., 82 (1996) CLT 645 (FB) = 1996 (II) OLR 341. Mr. Dash next submitted that in an election trial, the burden is on the election petitioner to prove the averments in the election petition as has been held by the Supreme Court in Laxman Siddappa Naik v. Kattimani Chaniappa Jamappanna and Ors., AIR 1968 SC 929, Ch. Razik Ram v. Ch. Jaswant Singh Chouhan and Ors., AIR 1975 SC 667, Jeet Mohinder Singh v. Harminder Singh Jassi, 1999 (9) SCC 386, but in the present case, both the learned Civil Judge and the learned District Judge ignored this settled position of law and shifted the burden to the petitioner who was a returned candidate to establish that her marriage had been solemnized with Paramananda Kandi, a Scheduled Caste person. Mr. Dash next submitted that the petitioner had produced in the trial the marriage certificate Ext. A to prove the marriage of the petitioner with Paramananda Kandi and yet the learned District Judge has held that such marriage certificate Ext. A obtained just four days before the date of filing of nomination on 14.1.2002 could not have any evidentiary value and that the certificate issued consequent upon the marriage under the Special Marriage Act was only in recognition of a past marriage and is no proof of such past marriage as having been actually solemnized. Mr. Dash vehemently argued that Section 18 of the Special Marriage Act, 1954 stipulates that where a certificate of marriage has been finally entered in the Marriage Certificate Book under Chapter III of the Special Marriage Act, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under the Act. He submitted that since registration of marriage of the petitioner was under Section 16 and a certificate of marriage was entered into the Marriage Certificate Book under Chapter III of the Act, from the date of the entry in the Marriage Certificate Book the marriage of the petitioner with Paramananda Kandi is deemed to be a marriage solemnized under the Act. He further argued that the marriage certificate Ext. A will be deemed to be conclusive evidence of fact that a marriage under the Act between the petitioner and Paramananda Kandi has been solemnized as stated in Sub section (2) of Section 13 of the Act. He finally argued that the reasons for disbelieving the witnesses of the petitioner examined before the trial Court given by the learned District Judge in the impugned appellate judgment are not valid and proper. He submitted that once the marriage of the petitioner with Paramananda Kandi was believed, the petitioner must be treated as having been accepted by the Scheduled Caste Community as she has secured the majority votes in a Constituency reserved for a Scheduled Caste woman. He cited the decision of the Supreme Court in S. Anbalagan v. B. Devarajan and Ors., AIR 1984 SC 411, in which it has been held that the fact that the voters of Rasipuram Parliamentary Constituency reserved for Scheduled Castes candidate accepted the candidature of the returned candidate for the reserved seat and elected him to Lok Sabha twice would show that the returned candidate had been accepted by the Scheduled Castes community as a member of their community.