judgement:
Civil Appeal No 1722 of 1986.
From the Judgment and order dated 8 4 ]986 of the Madras High Court in W A. No. 173 of 1986.
T.S Krishnamurthy Iyer, M.N. Krishnamani and V. Balachandran for the Appellant.
Kailash Vasudev for the Respondents.
The Judgment of the Court was delivered by 763 VENKATARAMIAH, J.
The question for consideration in this case is whether it is appropriate for the High Court to interfere with an election process at an intermediate stage after the commencement of the election process and before the declaration of the result of the election held for the purpose of filling a vacancy in the office of the Chairman of a Panchayat Union under the provisions of the Tamil Nadu Panchayats Act, 1958 (Act XXXV of 1958) (hereinafter referred to as 'the Act ') on the ground that there was an error in the matter of allotment of symbols to the candidates contesting at such election.
The appellant S.T. Muthusami, respondent No. 1 K. Natarajan, respondent No. 6 M. Thangavelu and two others were nominated as candidates at the election held to the office of the Chairman, Panchayat Union, Madathukkulam, Udamalpet Taluk, Coimbatore District in the State of Tamil Nadu.
The date of scrutiny of the nomination papers was 31st January, 1986 and the last date for withdrawal of nominations was 3rd February, 1986.
The election was to take place on the 23rd February, 1986.
On the date of the scrutiny of the nomination papers, the nomination papers of the appellant, respondent No. 1. respondent No. 6 and of two others were found to be valid by the Returning officer, respondent No. 5.
As regards the allotment of symbols to the candidates the order made by the State Government on 8.1.1986 in exercise of the powers under rule 17(1) of the Tamil Nadu Panchayats (Conduct of Election of Chairmen of Panchayat Union Councils and Presidents and members of Panchayats) Rules, 1978 (hereinafter referred to as 'the Rules ') directed that the Returning officer shall assign to the candidates set up by the National and the State parties the symbols reserved for the purpose by the Chief Election Commissioner.
The symbol reserved for the Indian National Congress (I) was 'hand '.
Similarly the symbols were also reserved for the All India Anna Dravida Munnetra Kazhagam and Dravida Munnetra Kazhagam.
15 other symbols were also notified by the Returning officer which could be assigned to the independent candidates contesting the elections.
Under the procedure prescribed by the Government where a candidate was set up by a national party who could claim the symbol which was reserved for such national party, the said national party had to send an intimation to the State Election Authority, namely, the Director of the Rural Development, Madras (respondent No. 3) intimating in Form 'A ' annexed to the order of the Government the names and the specimen signatures of not more than two representatives of the party who had been authorised to send intimations of the names of the candidates set up by the party in respect of the election to the office of the Chairmen of the Panchayat Union 764 Councils and the Presidents of Town Panchayats.
These representatives of the parties, whose names were intimated to the Director of the Rural Development were then either singly or generally required to intimate the names of the persons, whom the party concerned had authorised to contest as its official candidates in order of priority in Form 'B ' annexed to the Government order.
If the support to a candidate was withdrawn an intimation was required to be sent to the Returning officer not later than 3.00 P.M.
On the last date fixed for withdrawal of the nomination papers.
If no intimation was received before 3.00 PM.
On the last date fixed for withdrawal the Returning officer was directed not to consider any candidate as a candidate set up by the political party and not to assign the symbol for which the priority was given to the concerned party.
This order also stated that symbols should be assigned only by drawing lots when there were conflicting claims between two or more candidates and that no priority could be given to any candidate.
In the case before us intimation was received by the Returning officer showing the appellant as the official candidate of Indian National Congress (I) under the signature of the President of the Tamil Nadu Congress (I) Committee by 12.00 noon on the 3rd of February, 1986.
A similar letter was handed over by respondent No. 6 at 12.45 P.M.
On that date showing that he was also the official candidate of the Indian National Congress (I).
That letter also appeared to have been signed by the President of the Tamil Nadu Congress (I) Committee.
Having found that two persons were claiming to be the official candidates of the same party, the Returning officer declined to grant the symbol 'hand ' to any one of them.
These two candidates, i.e., the appellant and respondent No. 6 then gave in writing their choice of symbols belonging to the unreserved category giving three alternative choices.
Accepting the first choice of each of them, the Returning officer allotted at 4.30 P.M.
On 3.2.1986 the symbol 'glass tumbler ' to the appellant and the symbol 'fish ' to respondent No. 6.
The Returning officer then proceeded to publish the list of the candidates nominated as per rule 17(2) of the Rules with the symbols allotted to each of the three candidates, whose nomination papers had been found to be valid.
Immediately after the publication of the said list of the nominated candidates, the President of the Tamil Nadu Congress (I) Committee who was alleged to have signed both the letters given to the Returning officer representing that the appellant and respondent No. 6 were both official candidates wrote to the Director of The Rural Development Department, respondent No.3, who was the Election Authority as well as the Secretary to the Government, Rural Development Department, Government of Tamil Nadu on 4.2.1986 stating that he had not given his approval to respondent 765 No. 6 being an official Congress (I) candidate and that the authorised candidate of the Congress (I) Party was the appellant, S.T. Muthusami.
On receipt of the said letter respondent No. 3 the Director of the Rural Development Department, the Election Authority sent a telex message to the Collector of Coimbatore to treat the appellant as the official candidate of the Indian National Congress (I) Party and to assign the symbol 'hand ' to him.
The Collector communicated this message to the Returning officer by sending telex message on 6.2.1986.
In accordance with that direction the Returning officer issued an Errata Notification in Form VI assigning of the symbol 'hand ' which had been reserved for the Indian National Congress (I) to the appellant on that date itself and the copies of the said Errata Notification were sent by him to all the contesting candidates through special messengers.
This action of the Returning officer was challenged by respondent No. 1 K. Natarajan, who was a validly nominated candidate with 'bow and arrow ' as his symbol by filing a petition in Writ Petition No. 1178 of 1986 on the file of the High Court of Madras under Article 226 of the Constitution of India contending that the issuing of the Errata Notification was an abuse of power committed on extraneous and irrelevant considerations and there was undue interference with the actual conduct of the election.
He prayed before the High Court that the Errata Notification dated 6.2.1986 should be quashed and the election should be directed to be proceeded with in accordance with the notification issued on 3.2.1986 under which the 'glass tumbler ' symbol had been allotted to the appellant.
The above Writ Petition came up for consideration before the learned Single Judge of the High Court on 17.2.1986.
The learned Single Judge dismissed the Writ Petition holding that respondent No. 1 K. Natarajan, who had filed the Writ Petition, could not be considered as an aggrieved party since he did not claim to be the candidate sponsored by the Indian National Congress (I) and that the dispute could be, if at all, between the appellant and respondent No. 6.
Aggrieved by the order of the learned Single Judge, respondent No. 1 filed an appeal in Writ Appeal No. 173 of 1986 before the High Court of Madras.
The said appeal was heard by a Division Bench and it was allowed on 8.4.1986.
The Division Bench quashed the Errata Notification issued by the Returning officer and directed him to hold the election on the basis of the symbols originally allotted, treating 'glass tumbler ' as the symbol of the appellant and 'fish ' as the symbol of respondent No. 6.
The Returning officer was further directed to proceed immediately with the election process from that stage as provided by the Rules.
Aggrieved by the order of the Division Bench, the appellant has filed this appeal by special leave.
766 In this appeal there is no dispute about the tacts which have been set out above.
The point urged by the appellant before us is that the Division Bench was in error in setting aside the Errata Notification issued by the Returning officer in exercise of its jurisdiction under Article 226 of the Constitution of India before the declaration of the result of the election in view of the existence of an alternative remedy under the Rules framed under section 178(2)(ii) of the Act entitled Decision of Election Disputes Relating to Panchayat Union Councils ' have provided a machinery for the settlement of the election disputes relating to Panchayat Union Councils.
The relevant parts of rule ] and rule 11 of the said Rules read thus: "I(1) Save as otherwise provided, no election held under the T.N Panchayats Act, 1958 whether of a member, chairman or vice chairman of a panchayat union council shall be called in question except by an election petition presented in accordance with these rules to an election court as defined in sub rule (2) by any candidate or elector against the candidate who has been declared to have been duly elected (hereinafter called the returned candidate) .
(2) The election court shall be (i) except in cases falling under clause (ii) in the case of districts other than the Nilgiris, the District Munsif having territorial jurisdiction over the place in which the office of the panchayat union council is situated, or if there is more than one such District Munsif, elections governed would and in the case of Nilgiris district the Subordinate Judge, Ootacamund: and (ii) where the Government so direct, whether in respect of panchayat union councils generally or in respect of any class of panchayat union councils or in respect of panchayat union councils in the same district or taluk, such ( ' officer or officers of Government as may be designated by the Government in this behalf by name or by virtue of office: Provided that an election petition may, on application, be transferred 767 (a) if presented to a District Munsif under clause (i), by the District Judge concerned to another District Munsif within his jurisdiction; and (b) if presented to an officer of Government under clause (ii), by the Government to another officer of Government: Provided further that where an election petition is transferred to any authority under the foregoing proviso, such authority shall be deemed to be the election court. . . . . . . . . 11.
If in the opinion of the election court . . . . . . . . . (c) the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any non compliance with the provisions of the Act or the rules made thereunder, the election of such returned candidate shall be void.
. . . . . . . .
The Government order No 1677 L.A. dated 8.
10. 1960 provides that for all the purposes of the Act, the District Collector and the Division Development officer in respect of panchayat constituted under the said Act under the area within their respective jurisdiction, the District Collector in respect of every panchayat union council constituted under the Act in the District under his charge and the Additional Development Commissioner, Madras in respect of every said panchayat union council under the said Act shall be the election authorities.
The expression 'election authority ' is defined by section 2(9) of the Act as such authority? not being the president or vice president or a member of the panchayat or the chairman or vice chairman or a member of the panchayat union council as may be prescribed.
Rule 5 of the Rules provides that subject to the superintendence, direction and control of the election authority the Returning officer shall be responsible for the proper conduct of the election 768 under the rules.
Instructions issued by the Election Authority to the Returning officer regarding the allotment of the symbols cannot, therefore, be construed as interference with the election process by an authority unconnected with the process of election.
Even if there is any mistake committed by either the election authority or the Returning officer in the allotment of symbol to the appellant the said mistake can only amount to a non compliance with the provisions of the Act or the Rules made thereunder.
It is clear from clause (c) of rule 11 of the Rules made for the purpose of providing a machinery for the decision of election disputes relating to panchayat union councils that every action amounting to such non compliance with the provisions of the Act and the Rules made thereunder would not automatically vitiate an election.
It is only when the election court on a consideration of the entire material placed before it at the trial of an election petition comes to the conclusion that the result of the election has been materially affected by such non compliance with any of the provisions of the Act or the Rules made thereunder the election of the returned candidate can be declared void.
Rule 1 of the said Rules provides that an election held under the Act whether of a member or chairman or vice chairman of a panchayat union council can be called in question only by an election petition and not otherwise.
In these circumstances it has to be seen whether the Division Bench of the High Court was justified in setting aside the Errata Notification issued by the Returning officer with regard to the allotment of symbols.
It is no doubt true that rule (1) of the Rules made for the settlement of election disputes which provides that an election can be questioned only by an election petition cannot have the effect of overriding the powers of the High Court under Article 226 of the Constitution of India.
It may, however, be taken into consideration in determining whether it would be appropriate for the High Court to exercise its powers under Article 226 of the Constitution of India in a case of this nature.
In N.P. Ponnuswami vs Returning officer, Namakkal Constituency and others; , dealing with the question whether a writ petition was a proper remedy which can be availed of by (, a person aggrieved by any irregularity in the conduct of an election before the result of the election is declared, Fazal Ali, J.
On a consideration of the nature of litigation in respect of elections observed thus at page 234: "The conclusions which I have arrived at may be summed up briefly as follows: 769 (1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the 'election '; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed would have the effect of vitiating the 'election ' and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress." Having laid down the above principles, the Court further held that Article 329(b) of the Constitution of India had the effect of ousting the jurisdiction of the courts with regard to the matters arising between the commencement of the polling and the final selection.
Repelling the argument that Article 329(b) of the Constitution ousted the jurisdiction of the courts only with regard to matters arising between the commencement of the polling and the final selection and that questions relating to nominations could be agitated under Article 226 of the Constitution this Court observed thus: "The question which has to be asked is what conceivable reason the legislature could have had to leave only matters connected with nominations subject to the jurisdiction of the High Court under Article 226 of the Constitution.
If Part XV of the Constitution is a code by itself i.e., it creates rights and provides for their enforcement by a special tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule of the elections The more reasonable view seems to be that Article 770 329 covers all 'electoral matters." ' lt is thus seen that in the above decision (which was rendered by the Full Court) this Court first laid down as a matter of general principle that interference with an election process between the commencement of such process and the stage of declaration of result by a court would not ordinarily be proper and next laid down that Article 329(b) of the Constitution had the effect of taking away the jurisdiction under Article 226 of the Constitution also in respect of the disputes arising out of election during the said period.
Following the above decision in N. P. Ponnuswami 's case (supra) in Nanhoo Mal & Ors.
vs Hira Mal & Ors., ; this Court held that the right to vote or stand for election to the office of the President of a Municipal Board is a creature of the statute, that is the U.P. Municipalities Act and it must be subject to the limitations imposed by it.
Accordingly, this Court held that the election to the office of the President of the Municipal Board could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of that Act and in no other way.
The Court further held that the said Act provided only for one remedy, that remedy being an election petition to be presented after the election was over and there was no remedy provided at any intermediate stage.
Referring to the decision in N.P. Ponnuswami 's case (supra) this Court observed in the above decision at page 814 thus: "These conclusions follow from the decision of this Court in Ponnuswami 's case (supra) in its application to the facts of this case.
But the conclusions above stated were arrived at without taking the provisions of Article 329 into account.
The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions.
But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution.
Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 of the Constitution in relation to elections it is not now necessary to consider.
All the considerations applied in coming to the conclusion that elections to the legislatures 771 should not be delayed or protracted by the interference of A Courts at any intermediate stage before the results of the election are over applied with equal force to elections to local bodies.
" In the above passage this Court clarified that the conclusions in N.P. Ponnuswami 's case (supra) had been arrived without taking the provisions of Article 329 of the Constitution into account and that the provisions of Article 329 of the Constitution were relevant only to the extent that even the remedy under Article 226 of the Constitution was barred as a result of the provisions.
Earlier in the course of the decision in Nanhoo Mal 's case (supra) this Court observed at page 811: "After the decision of this Court in N P. Ponnuswami vs Returning officer, Namakkal Constituency & Ors.
there is hardly any room for Courts to entertain applications under Article 226 of the Constitution in matters relating to elections.
A Full Bench of the High Court of Madhya Pradesh expressed the same view in the year 1971 earlier in Malam Singh vs The Collector, Sehore, M.P. and others, AIR 1971 MP 195.
In the above decision the High Court of Madhya Pradesh was called upon to consider the controversial question whether it was proper that the High Court should exercise its powers under Article 226 of the Constitution in election matters arising under the Madhya Pradesh Panchayats Act, 1962 at intermediate stages, that is, to interfere with individual orders passed during the process of election and thus impede that process or should it decline to exercise that power and leave the parties to their remedy of an election petition to be presented after the election was over.
The provision that fell for consideration before the Full Bench of the Madhya Pradesh High Court in that case was section 375(1) of the Madhya Pradesh Panchayats Act, 1962, the language of which was identically the same as that of section 80 of the Representation of the People Act, 1951.
It was pointed out that the Court in N.P. Ponnuswami 's case (supra), having regard to the words 'Notwithstanding anything in this Constitution ' used in Article 329(b) held that they G were sufficient to exclude jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress Nevertheless, the decision of the Court in N.P. Ponnuswami 's case (supra) did not entirely turn on the language of Article 329(b) of the Constitution but the Court also enunciated certain well settled principles applicable to election cases in general.
In particular, the Court H 772 interpreted section 80 of the Representation of the People Act, 1951.
The Full Bench observed that though it was not concerned with Article 329(b) of the Constitution, it was bound by the principles laid down in N.P. Ponnuswami 's case (supra).
In delivering the judgment of the Full Bench, one of us (Sen, J.) observed: "9.
First of all, their Lordships rejected the contention that the post election remedy of an election petition was inadequate to afford the relief which the petitioner sought.
On the strength of the observations of Wallace, J., in Sarvothama Rao vs Chairman, Municipal Council, Saidapet, ILR , it was urged before them that to drive him to that remedy would be an anomaly, which their Lordships more appropriately described as hardship or prejudice.
It was further urged that the Court could not stultify itself by allowing the wrong which it was asked to prevent to be actually consummated.
While rejecting the contention, their Lordships noticed with approval the following observations of Wallace, J. in Desi Chettiar vs Chinnasami Chettair, AIR 1928Mad 1271: The petitioner is not without his remedy.
His remedy lies in an election petition which we under stand he has already put in.
It is argued for him that remedy which merely allows him to have set aside an election once held is not an efficacious as the one which would enable him to stop the election altogether and certain observations at page 600 of ILR (supra), are quoted.
In the first place, we do not see how the mere fact that the petitioner cannot get the election stopped, and has his remedy only after it is over by an election petition, will in itself confer on him any right to obtain a writ.
In the second place, these observations were directed to the consideration of the propriety of an injunction in a civil suit, a matter with which we are not here concerned.
And finally, it may be observed that these remarks were made some years ago when the practice of individuals coming forward to stop elections in order that their own individual interest may be safeguarded was not so common.
It is clear that there is another side of the question to be considered, namely, the inconvenience to the public 773 administration of having elections and the business of A Local Boards held up while individuals prosecute their individual grievances.
These observations of Wallace, J. were made in regard to elections to Local Boards.
It thus follows that the alternative remedy of an election petition is not less convenient beneficial and effectual.
" It was then observed: "Next, their Lordships re stated the principle that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.
Their Lordships relied on the dictum of Willes, J., which has become classical: It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.
This rule was stated with great clarity by Willes, J., in Wolverhampton New Water Works Co. vs Hawkesford, ; , at p. 356, in the following passage: E There are three classes of cases in which a liability may be established founded upon statute.
One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and a peculiar form of remedy different from F the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy.
The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law.
But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it .
The 774 remedy provided by the statute must be followed, and A it is not competent to the party to pursue the course applicable to cases of the second class.
The form given by the statute must be adopted and adhered to The rule laid down by this passage was approved by the House of Lords in Neville vs London Express News paper Ltd., i , and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago vs Gordon Grant & Co., 119351 AC 532 and Secy.
Of State vs Mask & Co., 44 Cal.
WN 709 AIR 1940 PC 105, and it has also been held to be equally applicable to enforcement of rights (see Hurdutrai vs Off.
Assignee of Calcutta, at p. 349.
Further it was observed: "Lastly, their Lordships stated that the law of election in this country does not contemplate that there should be two attacks on matters connected with election proceedings, in the following passage: In my opinion, to affirm such a position would be contrary to the scheme of . the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner be fore a special tribunal and should not be brought up at an intermediate stage before any Court.
It seems to me that under the election law, the only significance, which the rejection of a nomination paper has, consists in the fact that it can be used as a ground to call the election in question." In the ultimate analysis, the Full Bench laid down: " 12.
There is no constitutional bar to the excise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities, Panchayats and the like.
However, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the Court in the exer 775 cise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if the alternative remedy of an election petition is available.
So, their Lordships of the Supreme Court in Sangram Singh vs Election Tribunal, Kotah, ; stated: . though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be.
Therefore, writ petitions should not be lightly entertained in this class of cases.
" We are inclined to accept this view which lays down a salutary principle.
The Division Bench of the High Court against whose decision the present appeal by special leave is filed was of the view that the issuing of the Errata Notification by the Returning officer amounted a very serious breach and interference under Article 226 of the Constitution of India was called for.
Taking into consideration all the aspects of the present case including the fact that the person who filed the writ petition before the High Court was not one of the candidates nominated by the Indian National Congress (I) and the fact that the President of the Tamil Nadu Congress (I) Committee had written that he had authorised the appellant to contest as the candidate on behalf of his party and he had not given his approval to respondent No 6 contesting as a candidate on behalf of his party, we feel that the exercise of the jurisdiction by the High Court in this case under Article 226 of the Constitution cannot be supported.
The parties who are aggrieved by the result of the election can question the validity of election by an election petition which is an effective alternative remedy.
We are of the view that the Division Bench of the High Court committed a serious error in issuing a writ under Article 226 of the Constitution quashing the Errata Notification allotting the symbol 'hand ' to the appellant by its judgment under appeal.
We, therefore, set aside the judgment of the Division Bench of the High Court and dismiss the writ petition filed in the High Court.
The Returning officer shall proceed with the election in accordance with law from the stage at which it was interrupted by the order of the High Court.
The appeal is accordingly allowed.
No costs.
S.L. Appeal allowed.

summary:
% The question for consideration in this case was whether it was appropriate for the High Court to interfere with an election process at an intermediate stage after its commencement and before the declaration of the result of the election held for filling up a vacancy in the office of the Chairman of a Panchayat Union under the Tamil Nadu Panchayats, Act, 1958 (The Act), on the ground that there was an error in the matter of allotment of symbols to the contesting candidates.
The appellant.
the respondent No. 1, the respondent No.6 and two others were nominated as candidates at the election held to the office of the Chairman.
Panchayat Union, Madathukkulam.
On scrutiny of the nomination papers, the nomination papers of the appellant, respondents Nos. 1 and 6, and the two others were found to be laid by the Returning officer.
Under rule 17(1 ) of the Tamil Nadu Panchayats (Conduct of Election of Chairman of Panchayat Union Councils & Presidents and members of Panchayats) Rules 1978.(The Rules), the Returning officer was directed by the State Government to assign to the candidates of the National and State parties the symbols reserved by the Chief Election Commissioner.
The symbol reserved for the Indian National Congress (I) was 'hand '.
Under the procedure prescribed by the Government, intimation was received by the Returning officer showing the appellant as the candidate of the Indian National Congress (I) under the signatures of the President of the Tamil Nadu Congress (I) Committee on the 3rd February, 1986.
A similar letter was handed over by respondent No. 6 on that date showing that he was also the official candidate of the Indian National Congress (I) Committee.
That letter also appeared to have been signed by the President of the Tamil Nadu Congress (I) Committee.
Faced with two persons claiming to be the official candidates of the same party, the Returning officer declined to 760 assign the symbol 'hand ' to either of the two.
These two candidates, i.e., the appellant and respondent No. 6, then gave in writing their choice of symbols belonging to the unreserved category.
The Returning officer allotted the symbol of 'glass tumbler ' to the appellant and the symbol 'fish ' to respondent No. 6.
The Returning officer then published the list of the candidates nominated with the symbols allotted to each of the three candidates whose nomination papers had been found to be valid.
Immediately, on publication of the said list, the President of the Tamil Nadu Congress (I) Committee, who was alleged to have signed the letters in favour of both the appellant and respondent No. 6 as the official candidates, wrote to the respondent No. 3, the Election Authority as well as the Secretary to the Government, Rural Development Department, Government of Tamil Nadu, on 4.2.86 stating that he had not given his approval to respondent No. 6 being the official Congress (I) candidate, and the authorised candidate of the Congress (I) Party was the appellant.
On receipt of the letter, the respondent No. 3 sent a message to the Collector of Coimbatore to treat the appellant as the official candidate of the Indian National Congress (I) Party and to assign the symbol 'hand ' to him.
The Collector communicated this message to the Returning officer on 6.2.86.
The Returning officer issued, in accordance with that direction, an Errata Notification in Form IV assigning the symbol 'hand ' reserved for the Indian National Congress (I) to the appellant on that date itself and sent copies of the said Notification to all the contesting candidates.
This action of the Returning officer was challenged by respondent No. I a validly nominated candidate with 'bow and arrow ' as his symbol, by a writ petition in the High Court, contending that the issuing of the Errata Notification was an abuse of power on extraneous and irrelevant considerations and there was undue interference with the actual conduct of the election, and praying that the Errata Notification dated 6.2.86 should be quashed and the election, directed to be proceeded with in accordance with the Notification issued on 3.2.86 under which the 'glass tumbler ' symbol had been allotted to the appellant.
The High Court (Single Judge) dismissed the writ petition holding that the petitioner respondent No. I could not be considered as an aggrieved party and that the dispute could be, if at all, between the appellant and respondent No. 6.
The respondent No. I filed an appeal before the High Court.
A Division Bench allowed the appeal, quashed the Errata Notification issued by the Returning officer and directed him to hold the election on the basis of the symbols originally allotted, treating 'glass tumbler ' as the symbol of the appellant, etc.
Aggrieved by the order of the Division Bench, the appellant filed this appeal by special leave.
761 Allowing the appeal, the Court, ^ HELD: The appellant contended that the Division Bench was in error in setting aside the Errata Notification issued by the Returning officer in exercise of its jurisdiction under Article 226 of the Constitution of India before the declaration of the result of the election in view of an alternative remedy under the Rules framed under section 178(2)(iii) of the Act, entitled "Decision of Election Disputes Relating to Panchayat Union Councils".
[766A B] Rule 5 of the Rules provided that subject to the superintendence, direction and control of the Election Authority the Returning officer should be responsible for the proper conduct of the election under the Rules.
The instructions issued by the Election Authority to the Returning officer regarding the allotment of the symbols could not, therefore, be construed as interference with the election process by an authority unconnected with the process of election.
Even if there was any mistake committed by either the Election Authority or the Returning officer in the allotment of symbol to the appellant the said mistake could not amount to a non compliance with the provisions of the Act or the Rules made thereunder.
It was clear from clause (c) of rule II of the Rules made for the purpose of providing a machinery for the decision of the election disputes relating to panchayat union councils that every action amounting to such non compliance with the provisions of the Act and the Rules made thereunder would not automatically vitiate an election.
It was only when the election court on a consideration of the entire material placed before it at the trial of an election petition came to the conclusion that the result of the election had been materially affected by such non compliance with any of the provisions of the Act or the Rules made thereunder the election of the returned candidate could be declared void.
Rule I of the said Rules provided that an election held under the Act whether of a member or Chairman or Vice Chairman of a Panchayat Union Council could be called in question only by an election petition and not otherwise, but the rule could not have the effect of overriding the powers of the High Court under Article 226 of the Constitution of India [767H:768A F] In N.P. Ponnuswami vs Returning Officer, Namakkal Constituency and Ors., 11952] S.C.R. 213 (decided by the Full Court) this court first laid down as a matter of general principle that interference with an election process between the commencement of such process and the stage of declaration of the result by a court would not ordinarily be proper, and next laid down that Article 329 (b) of the Constitution 762 had the effect of taking away the jurisdiction under Article 226 of the Constitution also in respect of the dispute arising out of election during the said period.
The view of this Court in the above case laid down a salutary principle.
[770A B] Taking into consideration all the aspects of the present case.
including the fact that the person who filed the writ petition before the High Court was not one of the candidates nominated by the Indian National Congress (I) and the fact the President of the Tamil Nadu Congress (I) Committee had written that he had authorised the appellant to contest as the candidate on behalf of his party and had not given his approval to respondent No. 6 contesting as a candidate on behalf of his party, the exercise of the jurisdiction by the High Court under Article 226 of the Constitution in this case could not be supported.
The parties who were aggrieved by the result of the election could question the validity of the election by an election petition which was an effective alternative remedy.
[775D F] The Division Bench of the High Court committed a serious error in issuing a writ under Article 226 of the Constitution quashing the Errata Notification allotting the symbol 'hand ' to the appellant.
Judgment of the Division Bench was set aside writ petition filed in the High Court was dismissed and the Returning officer was directed to proceed with the election in accordance with law from the stage at which it was interrupted by the order of the High Court.
[775G H] N. P. Ponnuswami vs Returning officer, Namakkal Constituency and Ors.
, ; Nanhoo Mal & Ors.
vs Hira Mal & Ors., [1976]1 S.C.R. 809; Malam Singh vs The Collector, Sehore, M.P. & Ors., A.I.R, 1971 M .P. 195, referred to.


judgement:
Civil Appeal No. 2860 of 1987.
From the Judgment and order dated 8.7.1987 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 1311 of 1983 and Suppl.
A. No. 1798 of 1987 BI.
Soli J. Sorabjee, S.R. Grover and K.J. John for the Appellant.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is a statutory appeal from the decision and order of the Customs Excise and Gold (Control) Appellate Tribunal (briefly referred to as 'CEGAT ') under section 35L of the Central Excise and Salt Act, 1944 (hereinafter called 'the Act ').
It appears that the appellant is a manufacturer of Hospital and Pharmaceutical Appliances and Heavy Duty Industrial Canteen Equipment.
The following 14 items were classified by him under Tariff Item No. 68 of the said Act in his Classification List No. 106 dated 27:3.1979: "(1) Storage Tank, (2) Cooking Range (Electric opera 734 tion and gas operated), (3) Baking oven, (4) Deep Fat Fryer, (5) Bain Mafie, (6) Sterilizing Sink, (7) Expresso Coffee Machine, (8) Steam Jacketed Vessel (Steam operated), (9) Bread Toaster, (10) Bulk Cooker & Fryer, (11) Chappatty Plate/Chappatty Puffer and Chappatty Plate/Puffer, (12) Dish Washing Machine, (13) Potato Pooler and (14) Masala Grinder.
" The Assistant Collector held the view that products 2 to 14 were classifiable under Tariff Item No. 33C in view of the Explanation thereof.
After giving notice the Assistant Collector demanded differential duty amounting to Rs.1,91,622.20 for the period Ist of March, 1979 to 30th June, 1980.
The Assistant Collector confirmed the demand except in respect of Item No. 8, namely, Steam Jacketed Vessel.
Being aggrieved from these orders, the appellant filed appeals before the Collector.
The Collector accepted the appellant 's contentions and came to the conclusion that these were to be classified under Tariff Item No. 68 and not under Tariff Item No. 33C. Tariff Item 33C at the relevant time contained the Explanation I, which is as follows: "Explanation I 'Domestic electrical appliances ' means electrical appliances normally used in the household and similar appliances used in hotels, restaurants, hostels.
offices, educational institutions, hospitals, train kitchens.
aircraft or ship 's pantries, canteens, tailoring establish ments, laundary shops and hair dressing saloons".
The revenue went up in appeal before the CEGAT.
The Tribunal noted that the equipments in question were used in industrial canteens, Five Star Hotels, big hospitals etc.
The nature of the items such as deep fat fryer, Expresso coffee machine, bread toaster, chap patty plate, etc.
were all electrically operated machines.
The Tribunal further noted that Tariff Item 33C was in respect of "domestic electrical appliances not elsewhere specified".
According to the Tribunal the intention of the legislature in respect of "domestic electrical appliances" was clear from the Explanation.
It is apparent that the above named items are specially designed for use in big canteens attached to industrial units, big hotels, hospitals etc.
where food in bulk quantity for hundreds of people is required to be prepared and served.
These required electric power exceeding 230 volts in order to have considerable capacity for preparing and serving food.
Their prices ranged from 735 Rs.7,000 to Rs.1.5 lakhs.
It was submitted that these are important and relevant factors for distinguishing the said items as distinct and different from those appliances which are used normally in the household.
It was submitted that these heavy duty items fall outside the purview of Tariff Item No. 33C. The Tribunal was of the view that though considerable space is required for these items but space was not any criteria for determining this question.
According to the Tribunal that these items could not be classified under Tariff Item No. 68.
We are of the opinion that the Tribunal is right.
It is manifest that these equipments were electrical appliances.
There was no dispute on that.
It is also clear that these are normally used in household and similar appliances are used in hotels etc.
The expression "similar" is a significant expression.
It does not mean identical but it means corresponding to or resembling to in many respects; somewhat like; or having a general likeness.
The statute does not contemplate that goods classed under the words of 'similar description ' shall be in all respects the same.
If it did these words would be unnecessary.
These were intended to embrace goods but not identical with those goods.
If the items were similar appliances which are normally used in the household, these will be taxable under Tariff Item No. 33C.
It appears that the Gujarat High Court in the case of Viswa & Co. vs The State of Gujarat, (17 Sales Tax Cases 581) had occasion to consider whether electric fans are domestic electrical appliances for the purpose of Bombay Sales Tax Act, 1953.
Bhagwati, J. as the learned Chief Justice then was, speaking for the Gujarat High Court observed as follows: "A domestic electrical appliance, in our opinion, would be an electrical appliance of a kind generally used for domestic purposes.
It may also be used at places other than the home or the house, but that would not destroy the character of a domestic electrical appliance which attaches to it by reason of its being a kind of an electrical appliance generally used for the household.
There are several electrical appliances which are generally used in the household, such as electric irons, electrical sewing machines and electrical cooking ranges which are also used in other establishments.
But these electrical appliances do not therefore cease to be domestic electrical appliances.
It is of course not necessary that an electrical appliance, in order to 736 satisfy the description of a domestic electrical appliance, must be actually used in the home or the house.
What is necessary is that it must be of a kind which is generally used for household purposes and if that test is applied, there is no doubt that electric fans are domestic electrical appliances and the Tribunal was therefore right in holding that they fall within entry 52 of Schedule B." We agree that it is not necessary to be a domestic electrical appliance that it must be actually used in the home or the house.
It must be of a kind which is generally used for household purposes.
It appears to us that the types of items concerned in this appeal are generally used for household purposes and that is sufficiently good test for classification in the light of the explanation to Tariff Item No. 33C.
In view of the fact that the Tribunal recognised that the appellant had set out all the details in the classification list and the revenue had assessed him under Tariff Item 68, the Tribunal came to the conclusion that there was no intention to evade payment of duty.
Therefore, the Tribunal directed that the modification of the classification list could only be prospective and not retrospective.
The Tribunal was just and right in so doing.
The Tribunal was also right in holding that in the absence of any proof of suppression of fact, section 11 A of the said Act would not be applicable.
The show cause notice raising a demand of duty was issued on 8th of September, 1980 and the Tribunal sustained the demand for the period 9th March, 1980 to 30th June, 1980 in respect of items 3 to 7 and 9 to 14.
We are of the opinion that the Tribunal was right and the decision of the Tribunal therefore, does not call for interference.
In that view of the matter the appeal is rejected.
There will be no order as to costs N.P.V. Appeal dismissed.

dataset_name: IN-Abs

summary:
% Words and Phrases: 'Similar description ' meaning of.
The appellant, manufacturer of Hospital and Pharmaceutical Appliances and Heavy Duty Industrial Canteen Equipment, classified certain items like cooking range, deep fat fryer, express coffee machine, bread toaster etc.
, numbering 14, under Tariff Item No. 68 of the Central Excise and Salt Act, 1944.
The Assistant Collector held that products 2 to 14 were classifiable under Tariff Item No. 33C, in view of the Explanation thereof, and demanded differential duty for the period of 1st March, 1979 to 30th June, 1980.
The Collector, on appeal, held that these items were to be classified under Tariff item No. 68 and not under Tariff item 33C .
On appeal by the Revenue, the Central Customs Excise and Gold (Control) Appellate Tribunal, while noting that the equipment in question, some of which were electrically operated machines, were used in industrial canteens, five star hotels, big hospitals, etc.
held that the intention of the Legislature was clear from the Explanation to Tariff Item No. 33C, and the items in question could not be classified under Tariff Item No. 68.
Dismissing the appeal by the manufacturer.
^ HELD: The statute does not contemplate that goods classed under the words of "similar description" shall be in all respects the same.
If it did, these words would be unnecessary.
These were intended to embrace goods but not identical with those goods.
If the items were 732 similar appliances which are normally used in household, these will be taxable under Tariff Item No. 33C. [73CD] It is not necessary, to be a domestic appliance, that it must be actually used in the home or the house.
It must be of a kind that they are generally used for household purposes.
[736B] The types of items concerned in the instant case are generally used for household purposes and that is sufficiently good test for classification in the light of explanation to tariff item No. 33C.
The Tribunal was.
therefore, right in holding that these items could not be classified under Item 68.
[736C] Since the appellant had set out all the details and the Revenue had assessed the appellant under Tariff Item No. 68, the Tribunal was right in holding that there was no intention to evade payment of duty and in directing that the modification of the classification list could only be prospective and not retrospective.
In the absence of any proof of suppression of fact, it was also right in holding that section l 1 A of the Act would not be applicable.
[736D E]


judgement:
N: Criminal Appeal No. 475 of 1983.
From the Judgment and order dated 21/22 4 1982 of the Bombay High Court in Crl.
Appln.
No. 478 of 1980.
A.K. Sanghi for the Appellant.
A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by 812 SHARMA, J.
The point involved in this appeal is whether a Hindu woman who is married after coming into force of the to a Hindu male having a living lawfully wedded wife can maintain an application for maintenance under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code).
The appellant Smt.
Yamunabai was factually married to respondent No. 1 Anantrao Shivram Adhav by observance of rites under Hindu Law in June, 1974.
Anantrao had earlier married one Smt.
Lilabai who was alive and the marriage was subsisting in 1974.
The appellant lived with the respondent No. 1 for a week and there after left the house alleging ill treatment.
She made an application for maintenance in 1976 which was dismissed.
The matter was taken to the Bombay High Court, where the case was heard by a Full Bench, and was decided against the appellant by the impugned judgment.
Section 125 of the Code by sub section (1) which reads as follows clothes the "wife" with the right to receive maintenance is a n summary proceeding under the Code: 125(1).
If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: 813 Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child if married is not possessed of sufficient means.
Explanation.
For the purposes of this chapter: (a) "minor" means a person who, under the provisions of the (9 of 1875), is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
" According to the respondent the term 'wife ' used in the section means only a legally wedded wife, and as the marriage of the appellant must be held to be null and void by reason of the provisions of the , she is not entitled to any relief under the section.
For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the (hereinafter referred to as the Act) have to be examined.
Section 11 of the Act declares such a marriage as null and void in the following terms: " 11.
Void marriages Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
" Clause (1)(i) of section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage.
A marriage in contravention of this condition, therefore, is null and void.
It was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom.
A reference was made to section 12 of the Act and it was said that in any event the marriage would be voidable.
There is no merit in this contention.
By reason of the overriding effect of the Act as mentioned in section 4, no aid can be taken of the earlier 814 Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act.
So far as section 12 is concerned, it is confined to other categories of marriage and is not applicable to one solemnised in violation of section S(1)(i) of the Act.
Sub section (2) of section 12 puts further restrictions on such a right.
The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective.
The marriages covered by section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises.
Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose.
The provisions of section 16, which is quoted below, also throw light on this aspect: " 16.
Legitimacy of children of void and voidable marriages. (1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties of the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child not withstanding the decree of nullity.
(3) Nothing contained in sub section (1) or sub section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such 815 rights by reason of his not being the legitimate child of his parents.
(Emphasis added).
Sub section (1), by using the words underlined above clearly, implies that a void marriage can be held to be so without a prior formal declaration by a court in a proceeding.
While dealing with cases covered by section 12, sub section (2) refers to a decree of nullity as an essential condition and sub section (3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively by sections 11 and 12.
It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child.
The marriage of the appellant must, therefore, be treated as null and void from its very inception.
The question, then arises as to whether the expression 'wife used in section 125 of the Code should be interpreted to mean only a legally wedded wife not covered by section 11 of the Act.
The word is not defined in the Code except indicating in the Explanation its inclusive character so as to cover a divorcee.
A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status.
The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b), which is not relevant in the present context.
It has been contended on behalf of the appellant that the term 'wife ' in section 125 of the Code should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married in fact by performance of necessary rites or following the procedure laid down under the law.
Relying upon the decision of this Court in Mohd. Ahmed Khan vs Shah Bano Beghum, [1985 ] 3 SCR 844, it was argued that the personal law of the parties to a proceeding under section 125 of the Code should be completely excluded from consideration.
The relationship of husband and wife comes to an end on divorce, but a divorcee has been held to be entitled to the benefits of the section, it was urged, and therefore applying this approach a woman in the same position as the present appellant should be brought within the sweep of the section.
We are afraid, the argument is not well founded.
A divorcee is included within the section on account of clause (b) of the Explanation.
The position under the corresponding section 488 of the Code of 1898 was different.
A divorcee could 816 not avail of the summary remedy.
The wife 's right to maintenance depended upon the continuance of her married status.
It was pointed out in Shah Bano 's case that since that right could be defeated by the husband by divorcing her unilaterally under the Muslim Personal Law or by obtaining a decree of divorce under any other system of law, it was considered desirable to remove the hardship by extending the benefit of the provisions of the section to a divorced woman so long as she did not remarry, and that was achieved by including clause (b) of the Explanation.
Unfortunately for the appellant no corresponding provision was brought in so as to apply to her.
The legislature decided to bestow the benefit of the section even on an illegitimate child by express words but none are found to apply to a de facto wife where the marriage is void ab initio.
The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled.
The section has been enacted in the interest of a wife, and one who intends to take benefit under sub section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned.
This issue can be decided only by a reference to the law applicable to the parties.
It is only where an applicant establishes her status on relationship with reference to the personal law that an application for maintenance can be maintained.
Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law.
The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties.
In our view the judgment in Shah Bano 's case does not help the appellant.
It may be observed that for the purpose of extending the benefit of the section to a divorced woman and an illegitimate child the Parliament considered it necessary to include in the section specific provisions to that effect, but has not done so with respect to women not lawfully married.
Lastly it was urged that the appellant was not informed about the respondent 's marriage with Lilabai when she married the respondent who treated her as his wife, and, therefore, her prayer for maintenance should be allowed.
There is no merit in this point either.
The appellant cannot rely on the principle of estoppel so as to defeat the provisions of the Act.
So far as the respondent treating her as his wife is concerned, it is again of no avail as the issue has to be settled under the law.
It is the intention of the legislature which is relevant and not the attitude of the party.
817 8.
We therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of section 125 of the Code.
The appeal is accordingly dismissed.
There will be no order as to costs.
During the pendency of the appeal in this Court some money was paid to the appellant in pursuance of an interim order.
The respondent shall not be permitted to claim for its refund.
N.P.V. Appeal dismissed.

summary:
% The appellant was married to the first respondent by observance of rites under Hindu Law in June, 1974, while the first respondent 's earlier marriage was subsisting and the wife was alive.
After living with the first respondent for a week, she left the house alleging ill treatment.
She filed an application for maintenance in 1976, which was dismissed by the trial Court.
Her appeal to the High Court was dismissed by a Full Bench.
In the appeal to this Court it was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom and in any event, the marriage would be voidable under section 12 of the , that the term "wife" in section 125 of the Cr.
P.C., 1973 should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married, in fact, by performance of necessary rites or following the procedure laid down under the law, that the personal law of the parties to a proceeding under section 125 of the Cr.
P.C. should be excluded from consideration, and since a divorcee has been held to be entitled to the benefits of the section, a woman in the same position as the appellant should also be brought within the sweep of the section, and since the appellant was not informed about the respondent 's earlier marriage, when she married him, who treated her as his wife, her prayer for maintenance should be allowed.
810 It was contended on behalf of the respondent that the term "wife" used in Section 125 of the Cr.
P.C. meant only a legally wedded wife, and as the marriage of the appellant must be held to be null and void by reason of the provisions of the the appellant was not entitled to any relief under the section.
Dismissing the appeal, ^ HELD: l.
The marriage of a woman in accordance with the Hindu rites with a man having legal spouse, after coming into force of the is a complete nullity in the eye of law and she is not entitled to the benefit of Sec. 125 of the Criminal Procedure Code, 1973.
[813D] 2.1 Clause (1)(i) of section 5 of the , lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage, and therefore a marriage in contravention of this condition is null and void, under section 11 of the Act.
[813G] 2.2 By reason of the overriding effect of the Act, as mentioned in section 4, no aid can be taken of the earlier Hindu law or any custom or usage as a part of that law, inconsistent with any provisions of the Act.
Section 12 is confined to other categories of marriages, and is not applicable to one solemnized in violation of section 5(1)(i) of the Act.
Cases covered under section 12 are not void ab initio.
[813H; 814A B] 2.3 The marriage covered by section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises.
Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose.
[814B C] The marriage of the appellant must, therefore, be treated as null and void from its verv inception.
[815C] 3.1 Section 125 has been enacted in the interest of a wife, and one who intends to take benefit under sub section (l)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned.
This issue can be decided only by a reference to the law applicable to the parties.
[815E] 811 3.2 It is only where an applicant establishes her status or relationship with reference to the Personal Law that an application for maintenance can be maintained.
Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the Personal Law.
[816D E] 3.3 For the purpose of extending the benefit of the section to a divorced woman, and an illegitimate child, the Parliament considered it necessary to include in the section specific provisions to that effect but has not done so with respect to women not lawfully married.
[816F] 3.4 The word "wife" is not defined in the Cr.
P.C. except indicating in the Explanation to section 125 its inclusive character so as to cover a divorcee.
A woman cannot be a divorcee, unless there was a marriage in the eye of law preceding that status.
The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b).
A divorcee is included in the section on account of cl.
(b) of the Explanation.
[815D E] 3.5 Principle of estoppel cannot be relied upon to defeat the provisions of the Act.
So far as the first respondent treating her as wife is concerned, it is of no avail, as the issue has to be settled under the law.
It is the intention of the legislature, which is relevant, and not the attitude of the parties.
The prayer of the appellant for maintenance cannot, therefore, be allowed even if the appellant was not informed, at the time of her marriage to the respondent, about his earlier marriage.
[816G H] Mohd. Ahmed Khan vs Skah Bano Beghum, ; , distinguished.