Disclosure Of Second Wife In Affidavit Not Ground To Unseat Candidate | Bombay High Court Rejects Petition Against Palghar MLA
Safiya Malik
The High Court of Bombay Single Bench of Justice Sandeep V. Marne has dismissed an election petition seeking to declare void the election of the returned candidate from the 130-Palghar (ST) Assembly Constituency during the 2024 General Election. The Court directed that the petition be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908, for failure to disclose a cause of action.
The petition had questioned the validity of the respondent's election on the grounds that he added an extra column in Form 26 affidavit disclosing the name and income details of his second spouse. The Court held that such voluntary disclosure did not violate Rule 4A of the Conduct of Election Rules, 1961, nor did it constitute corrupt practice under the Representation of People Act, 1951. In its final decision, the Court concluded that the petition lacked the necessary material facts and failed to make out a valid case under Sections 100(1)(b), 100(1)(d)(i), or 100(1)(d)(iv) read with Section 123(4) of the Act.
The Court found no material facts to establish improper acceptance of nomination, corrupt practice, or violation materially affecting the election result, thereby rejecting the petition at the threshold.
The petitioner, a voter from the 130-Palghar (ST) Assembly Constituency, filed an election petition seeking to void the election of the respondent, who was declared elected in the General Election held in November 2024. The respondent had contested the election as a candidate of the Shiv Sena party.
The petitioner alleged that the respondent's nomination affidavit in Form 26 contained a false declaration, wherein he named Smt. Rupali Gavit as his second wife under the section for disclosure of assets and liabilities. The petitioner argued that such a declaration was not only factually incorrect but also violated the prescribed format of Form 26 under Rule 4A of the Conduct of Election Rules, 1961. He claimed that the second marriage was void under the Hindu Marriage Act, 1955 and that the addition of a column for a second spouse was an unauthorized modification of the statutory format.
According to the petitioner, the inclusion of information about a second spouse who was not legally wedded constituted a false statement attracting disqualification under Section 100(1)(b) and Section 123(4) of the Representation of People Act, 1951. He further contended that this unauthorized alteration in Form 26 amounted to non-compliance with the Act and the Rules framed thereunder, thereby attracting Section 100(1)(d)(iv).
In response, the respondent filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, seeking rejection of the election petition on the ground that it did not disclose a cause of action. The respondent argued that the disclosure of his second spouse in Form 26 was a voluntary act aimed at transparency and did not violate any statutory provisions. He also contended that Section 33B of the Representation of People Act did not prohibit such disclosure and that his actions were in line with the Supreme Court’s directives in Union of India v. Association for Democratic Reforms and People’s Union for Civil Liberties v. Union of India.
The respondent maintained that he belonged to the Bhil tribal community, in which polygamy was a customary practice, and thus, the declaration of his second marriage was a truthful and culturally permissible act. He further submitted that the petitioner had not made any averment denying the existence of the marriage nor had he provided any material evidence to show that the declaration was knowingly false.
The Court recorded that an election petition under Section 100 of the Representation of People Act must disclose a concise statement of material facts and particulars of any alleged corrupt practice as mandated under Section 83 of the Act.
It noted "mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of stating material facts in the Election Petition." The Court cited the judgment in Kanimozhi Karunanidhi v. A. Santhana Kumar and Others to underscore that the absence of material facts was a valid ground for rejection under Order VII Rule 11(a) CPC.
Referring to the petitioner’s allegations, the Court stated "there is no averment in the petition as to how disclosure of details of PAN and status of filing of Income Tax Returns of Smt. Rupali Gavit (Spouse No. 2) violates provisions of Rule 4A of the Election Rules." The Court found that the petitioner had not established that the inclusion of an additional spouse column in the affidavit led to improper acceptance of nomination or materially affected the election result.
On the aspect of corrupt practice under Section 123(4), the Court held that the petitioner failed to allege that no marriage ever took place or that the respondent knowingly made a false declaration. "There is no material averment in support of the contention that the declaration made by the Respondent is false," the Court observed.
Discussing the permissibility of additional disclosures in Form 26, the Court remarked that "mere addition of a column in Form No.26, for the purpose of making true and correct disclosure cannot be a ground for seeking declaration of election as void."
The Court also cited the decision in Association for Democratic Reforms where the Supreme Court stated the need for full disclosure by candidates. It observed that "the act of returned candidate of addition of a column in the Form 26 Affidavit for making true and honest disclosure of information would neither render the nomination form defective nor would amount to violation of provisions of the Election Rules."
On the question of whether the election was materially affected, the Court stated that the petitioner failed to show how the inclusion of details of the second spouse influenced the voters or changed the election outcome. It reiterated, "there is no pleading in the entire Election Petition to demonstrate as to how election of Respondent is materially affected on account of alleged violation."
The Court issued its final order stating that the petition failed to meet the statutory requirements prescribed under Section 83 of the Representation of People Act, 1951.
"In my view therefore mere addition of column in Form 26 Affidavit would not attract a ground for challenging the election. Thus, no ground under Section 100(1)(d)(i) or (iv) is made out in the pleadings raised in the election petition, warranting its dismissal under order VII Rule 11 of the Code," Justice Marne recorded.
The Court held that the averments in the petition were insufficient to establish any corrupt practice or improper acceptance of nomination. It added, "The Election Petition lacks concise statement of material particulars demonstrating violation of provisions of Constitution/Act of 1951/Rules made thereunder for maintaining a valid Election Petition."
The Court ultimately stated: " Application (L) No.5808/2025 filed by the Respondent is allowed and the Election Petition is accordingly rejected under the provisions of Order VII Rule 11 of the Code. Election Petition No.3/2025 shall accordingly stand dismissed."
Advocates Representing the Parties:
For the Petitioners: Smt. Neeta Karnik, Senior Advocate with Mr. Jimmy Mates Gonsalves, Mr. Shrirang P. Katneshwarkar, Mr. Kallies Albert Alphanso and Mr. Sandeep Gupta, i/b. Mr. Anthony Floriyen Foss
For the Respondents: Mr. Nitin Gangal with Mr. Chandrakant Y. Tanawde, Ms. Namita Mestry, Ms. Prapti Karkera, Ms. Diksha Patil, Mr. Pramod B. Jedhe, Mr. Naresh B. Patil and Mr. Milind Choudhari
Case Title: Sudhir Brijendra Jain v. Rajendra Dhedya Gavit
Neutral Citation: 2025: BHC-OS:9250
Case Number: Election Petition No. 3 of 2025
Bench: Justice Sandeep V. Marne
