Sou. Sonali W/O Mangesh Lode vs Collector, Wardha And Others

Rule. Rule made returnable forthwith.

Heard finally by consent.

Heard Shri M.D. Lakhe, learned counsel for the petitioner. Shri B.M. Lonare, learned Assistant Government Pleader for the respondent Nos.1 and

2 and Shri Ashish Chaware, learned counsel appears by waiving notice on behalf respondent No.3. There is no need to issue any notice to the

respondent No.4, he being a former party.

In this case, the objection has been filed by the petitioner to acceptance of the nomination paper submitted by respondent No.3 for election to the

post of Sarpanch, of Gram Panchayat Jalgaon, Tahsil Arvi, District Wardha. The ground of the objection is that the respondent No.3 has filed a

false affidavit dated 6.9.2018 that she has married one Purushottam Mahalle and after her marriage with Purushottam Mahalle, her maiden name

Bharti Bhaskarrao Deshmukh was changed to Bharti Purushottam Mahalle.

Learned counsel for the petitioner submits that the affidavit filed along with nomination paper submitted on behalf of respondent No.3 was patently

false. He submits that the respondent No.3's marriage with Purushottam Mahalle was void in the eye of law for the reason that Purushottam

Someshwarrao Mahalle was a person with living spouse on the date of his alleged marriage with Bharti or respondent No.3. Learned counsel for

the petitioner submits that under Rule 9 of the Bombay Village Panchayats (Sarpanch and UpaÂSarpanch) Election Rules 1964 (in short, “Rules

1964â€), the respondent No.3 having earned disqualification, the nomination paper submitted by respondent No.3 was liable to be rejected by the

Returning Officer respondent No.2. He points out that subÂRule(2) of Rule 9 says that the Presiding Officer should not reject any nomination

paper on the ground of any defect which is not of a substantial character and that would mean that if there is a defect of substantial character, the

Presiding Officer must reject the nomination paper. This has been disagreed to by learned Assistant Government Pleader for the respondent Nos.1

and 2 and learned counsel for the respondent No.3.

The interpretation of subÂRule (2), Rule 9 of the Rules 1964 submitted by learned counsel for the petitioner cannot be disputed. If the Presiding

Officer, under this provision of law, has to reject nomination paper, he must do so only when there is a defect of a substantial character and not

otherwise. He cannot reject the nomination paper for a minor defect or a defect which is seen to be not of substantial nature. According to the

learned counsel for the petitioner, a void marriage is a defect of substantial character. While I would not like to make any comment upon the

proposition made on behalf of the petitioner that a void marriage can be regarded as a defect of substantial character in the context of election to the

post of Sarpanch or Upa Sarpanch of Gram Panchayat as it is not necessary here, suffice it say that in the present case, the question so far has not

arisen in any manner. The reason being that there is no determination given by any Civil Court of competent jurisdiction that the marriage of

respondent No.3 with the person named Purushottam Mahalle is void because Purushottam Mahalle married respondent No.3 during the lifetime of his

first wife. A marriage being void or otherwise is an issue which lies within the exclusive jurisdiction of a Civil Court and a Returning Officer

charged with duty to supervise the conduct of the election is required to decide the issue of acceptance or rejection of the nomination paper on the

basis of the established facts indicating incurring of the disqualification contemplated by law. Unless and until a disqualification on the count of void

marriage is established in law, a Returning Officer would not be in a position to take any decision about the rejection of the nomination paper. In the

present case, there is no such determination made or decision given by a competent Civil Court holding that the marriage of respondent No.3 withÂ

Purushottam Mahalle is void. So, the question of arising of any substantial defect in the present case on account of the issue of void marriage has

not arisen at all. As such, I find no substance in the objection taken by the petitioner before the Returning Officer. There is no merit in this

petition.

Even otherwise, the interference of this Court has been sought in a matter in which nomination paper has been accepted. This is something

which in my view is squarely covered by the bar of Section 15 of the Maharashtra Village Panchayat Act. If the issue of acceptance of the

nomination paper is to be determined negatively by this Court, it would result in rejection of nomination paper leading to interfering with the election

process, which is not permissible under the law.

For the reasons stated above, writ petition deserves to be dismissed.

Writ Petition is dismissed accordingly.

Rule is discharged. No costs.