A.K. Patnaik, J.
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. Aggrieved by the said judgment dated 12.11.2002, the petitioner preferred Election Appeal No. 14 of 2002 in the Court of the learned District Judge, Cuttack and by judgment dated 25.2.2003, the learned District Judge confirmed the findings of the learned Civil Judge (Junior Division), Kendrapara that the marriage of the petitioner with Paramananda Kandi at Puri in the Jagannath Temple had not been proved. The learned District Judge further held in the said judgment that the marriage certificate (Ext.A) was not a certificate under Section 13 of the Special Marriage Act, 1954 but was a certificate under Section 16 of the said Act and that the registration of the marriage under Section 16 of the Special Marriage Act and grant of certificate thereunder was only a recognition of a past marriage and it was not a marriage done under the Act and the said marriage certificate procured just four days before the date of filing of the nomination could not have any evidentiary value. In the said judgment, the learned District Judge further held that had the marriage between the petitioner and Paramananda Kandi been proved and accepted, the question as to whether the petitioner assimilated into the family of Paramananda Kandi and their caste men would have arisen for consideration. Aggrieved by the said judgment of the learned District Judge passed in the appeal, the petitioner has filed this writ petition under Articles 226 and 227 of the Constitution for appropriate relief.
4. 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.
5. Mr. J. M. Mohanty, learned counsel for the opposite party No. 1, on the other hand, submitted that Chapter II of the Act provides for solemnization of special marriages under the Act and a certificate of marriage granted under Section 13 in Chapter II of the Act is deemed to be conclusive evidence of the fact that the marriage under the Act has been solemnized, but the marriage of the petitioner was not solemnized under Chapter II of the Act and the certificate in Ext. A is not a certificate under Section 13 in Chapter II of the Act. He submitted that the registration of the marriage of the petitioner with Paramananda Kandi was under Section 16 of the Act and the marriage certificate issued thereunder is hot conclusive evidence of the fact of marriage between the petitioner and Paramananda Kandi. In support of this submission, he cited the decision of the Madhya Pradesh High Court in Sanjay Mishra v. Miss Eveline Jobe, AIR 1993 Madhya Pradesh 54, wherein it has been held that where the factum of marriage is itself disputed, essential ceremonies constituting a marriage in accordance with the rites must be pleaded and proved and the performance of the rites must be brought on record. Mr. Mohanty argued that in the present case while the opposite party No. 1 adduced evidence in the trial Court examining four witnesses including herself and proved that there was no marriage and no acceptance of the petitioner in 'BAURI' community, the petitioner was not able to adduce satisfactory evidence before the Court to show that the marriage of the petitioner with Paramananda Kandi was solemnized at Puri after observance of all formalities. Mr. Mohanty vehemently argued that even Paramananda Kandi did not depose as to how he got married with the petitioner at Jagannath Temple, Puri and instead stated that the marriage between him and the petitioner was a registered marriage and none of the close relations of Paramananda Kandi were examined to prove the marriage between the petitioner and Paramananda Kandi at Jagannath Temple, Puri in the year 1997, He submitted that this being the state of evidence, the trial Court and the appellate Court rightly recorded the finding that the legal marriage of the petitioner with Paramananda Kandi could not be accepted. Mr. Mohanty vehemently submitted that an Election Tribunal while adjudicating an election dispute has the power to decide whether or not the petitioner was a Scheduled Caste person entitled to contest the election to the post of Sarpanch reserved for a Scheduled Caste woman and had the jurisdiction to adjudicate the question as to whether the petitioner who was originally a non-Scheduled Caste person was legally married to Paramananda Kandi who was a Scheduled Caste person and in support of this argument cited the decision of the Supreme Court in N.E. Horo v. Smt. Jahanara Jaipal Singh, AIR 1972 SC 1840. Finally, Mr. Mohanty submitted that both the trial Court and the appellate Court have recorded concurrent findings of fact on the basis of evidence that there was no marriage between the petitioner and Paramananda Kandi and there is no scope for the High Court to interfere with such findings of fact based on evidence in a certiorari proceeding. He cited the decision of the Division Bench of this Court in Kalinga Cement Limited and Anr. v. Union of India and Ors., 79 (1995) CLT 896, and submitted that the conclusion of the Election Tribunal can be interfered with by the High Court in a writ of certiorari only when the High Court comes to conclusion that there has been an error of jurisdiction or error of law apparent on the face of the order of the Election Tribunal and not otherwise and no such case has been made out by the writ petitioner.
6. The first question to be decided in this writ petition is whether the learned Civil Judge (Junior Division), Kendrapara and the learned District Judge, Cuttack had the jurisdiction to record any finding with regard to the marriage between the petitioner and Paramananda Kandi in Election Misc. Case No. 4 of 2002 and the appeal arising therefrom. Article 243-O of the Constitution provides that notwithstanding anything contained in the Constitution, no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. Chapter V of the Orissa Grama Panchayats Act, 1964 is titled as 'CONDUCT OF ELECTION AND ELECTION DISPUTES' and contains Sections 27 to 43, Section 30 states that no election of a person as a member of a Grama Panchayat or as a Sarpanch or Naib Sarpanch held under the Orissa Grama Panchayats Act shall be called in question except by an election petition presented in accordance with the provisions of Chapter V, Section 31 states that the petition shall be presented on one or more grounds specified in Section 39 before the Civil Judge (Junior Division) having jurisdiction over the place at which the office of the Grama Sasan is situated. Section 39 provides the grounds on which the Civil Judge (Junior Division) can declare the election of a returned candidate void and one of the grounds for declaring the election of a returned candidate void is if the Civil Judge is of the opinion that any nomination paper has been improperly rejected or accepted. It is not disputed that the post of Sarpanch of Golarhat Grama Panchayat was reserved for a Scheduled Caste woman under the provisions of Section 10 of the Orissa Grama Panchayats Act, 1964. Thus, if a petition is filed before the learned Civil Judge (Junior Division) under Section 31 alleging that the returned candidate was not a Scheduled Caste woman and yet her nomination was accepted for election to the post of Sarpanch of Golarhat Grama Panchayat reserved for a Scheduled Caste woman, the learned Civil Judge has the jurisdiction to decide the aforesaid issue raised in such a petition and if he is of the opinion that the returned candidate was not a Scheduled Caste woman, the learned Civil Judge has the jurisdiction to also record a finding that the nomination paper of such returned candidate had been improperly accepted and declare the election of such returned candidate as void. In the instant case, the specific case of the opposite party No. 1 in the petition under Section 31 of the Orissa Grama Panchayats Act, 1964 before the learned Civil Judge (Junior Division), Kendrapara was that the petitioner is the daughter of one Lokanath Mangata Jana who was not a Scheduled Caste person and yet her nomination was filed for election to the post of Sarpanch of Golarhat Grama Panchayat reserved for Scheduled Caste woman and although the opposite party No. 1 objected to the nomination of the petitioner that she did not belong to the Scheduled Caste community nor was she the legally married wife of Paramananda Kandi, a Scheduled Caste person, the Election Officer illegally and improperly accepted her nomination for the election and permitted her to contest the election for the post of Sarpanch of Golarhat Grama Panchayat. The petitioner contested the said case of the opposite party No. 1 in the petition under Section 31 of the Orissa Grama Panchayats Act, 1964. The learned Civil Judge (Junior Division), Kendrapara, therefore, had the jurisdiction to decide the issue as to whether the petitioner was the legally married wife of Paramananda Kandi, a Scheduled Caste person and was a Scheduled Caste woman and consequently, whether her nomination was properly or improperly accepted by the Election Officer.
7. Section 24(1) of the Special Marriage Act, 1954 on which great reliance has been placed by Mr. I. C. Das, learned counsel for the petitioner, provides that any marriage solemnized under the said Act may on a petition presented by either party thereto against the other be declared null and void by a decree of nullity on the grounds stated therein. Thus, under the said Section 24(1) of the Special Marriage Act, 1954, it is only a party to a marriage who can present a petition for declaring a marriage solemnized under the said Act as void and it is only the Court having jurisdiction under the Special Marriage Act, 1954 which can declare a marriage solemnized under the Special Marriage Act, 1954 null and void. While deciding as to whether or not the petitioner was the legally married wife of Paramananda Kandi and whether or not she was a Scheduled Castes person entitled to contest the election to the post of Sarpanch of Golarhat Grama Panchayat reserved for Scheduled Caste woman, the learned Civil Judge (Junior Division) cannot declare the marriage of the petitioner with Paramananda Kandi as null and void but can only hold that the marriage of the petitioner with Paramananda Kandi has not been proved by evidence before the Court. In the instant case the findings of the learned Civil Judge (Junior Division), Kendrapara and the learned District Judge, Cuttack are not declarations of the marriage of the petitioner with Paramananda Kandi as null and void. The said findings of the learned Civil Judge (Junior Division), Kendrapara and the learned District Judge, Cuttack are findings to the effect that the solemnization of the marriage between the petitioner and Paramananda Kandi has not been established by evidence before the Court.
8. The next question to be decided is whether the certificate (Ext. A) issued by the Marriage Officer under Section 16 of the Special Marriage Act, 1954 is to be deemed as conclusive evidence of the fact that the marriage between the petitioner and Paramananda Kandi has been solemnized under the said Act or whether the learned Civil Judge (Junior Division) or the learned District Judge can ignore the said marriage certificate in Ext. A and record a finding that the marriage between the petitioner and Paramananda Kandi had not been proved. Chapter II of the Special Marriage Act, 1954 is titled as 'SOLEMNIZATION OF SPECIAL MARRIAGES' and contains provisions from Sections 4 to 14. Section 4 stipulates the conditions relating to solemnization of special marriages. Sections 5, 6, 7, 8, 9, 10, 11 and 12 provide the manner and the procedure for solemnization of special marriages by the Marriage Officer. Section 13 provides for certificate of marriage and is quoted hereunder:
'13. Certificate of Marriage: (1) When the marriage has been solemnized the Marriage Officer shall enter a certificate thereof in the Form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.
(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.'
It will be clear from Sub-section (1) of Section 13 of the Special Marriage Act, 1954 quoted above that when the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the form prescribed in the Fourth Schedule in a Book to be kept by him for that purpose. The form specified in the Fourth Schedule for the certificate of marriage under Section 13 of the Special Marriage Act, 1954 is as follows :
'THE FOURTH SCHEDULE
(See Section 13)
CERTIFICATE OF MARRIAGE
I, . E. F., hereby certify that on the...... day of........ 19........ A. B. and C. D. appeared before me and that each of them, in my presence and in the presence of three witnesses who have signed hereunder, made the declarations required by Section 11 and that a marriage, under this Act was solemnized between them in my presence.
(Sd.) E.F.,
Marriage Officer for
(Sd.) A.B.,
Bridegroom
(Sd.) C.D.,
Bride
(Sd.) G.H. (Sd.) I.J. (Sd.)K.L.
Three witnesses
Dated the .........day of ..... 19 .....
It will be clear from the language used in the certificate of marriage under Section 13 extracted above that the Marriage Officer himself certifies that the marriage under the Special Marriage Act, 1954 was solemnized between the parties to the marriage in his presence as well as in presence of three witnesses who have signed under the certificate. Sub-section (2) of Section 13 of the Special Marriage Act, 1954 quoted above further states that on a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that the marriage under the said Act has been solemnized and that all formalities respecting the signature of the witnesses have been complied with. Thus, where a marriage is solemnized in accordance with the provisions of Sections 4 to 12 in Chapter II of the Special Marriage Act, 1954 in presence of the Marriage Officer and in presence of three other witnesses and a certificate of marriage under Section 13 of the said Act is entered in the Marriage Certificate Book by the Marriage Officer, such a certificate under Section 13 of the Special Marriage Act, 1954 is to be treated as conclusive evidence of the fact that the marriage under the said Act has been solemnized.
9. Chapter III of the Special Marriage Act, 1954 which is titled as 'REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS' contains Sections 15, 16, 17 and 18 which are all relevant for this case and are quoted herein below
'CHAPTER - III
REGISTRATION OF MARRIAGES CELEBRATED
IN OTHER FORMS
15. Registration of marriages celebrated in other forms : Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely :
(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot or a lunatic at the time of registration;
(d) the parties have completed the age of the twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship;
Provided that in case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and
(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.16. Procedure for registration : Upon receipt of an application signed by both the parties to the marriage for the registration of their marriage under this chapter, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objection and after hearing any objection received within that period, shall, if satisfied that all the conditions mentioned in Section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the Form specified in the Fifth Schedule and such certificate shall be signed by the parties to the marriage and by three witnesses.
17. Appeals from orders under Section 16: Any person aggrieved by any order of a Marriage Officer refusing to register a marriage under this Chapter may, within thirty days from the date of order, appeal against that order to the District Court within the local limits of whose jurisdiction the Marriage Officer has his office, and the decision of the District Court on such appeal shall be final, and the Marriage Officer to whom the application was made shall act in conformity with such decision.
18. Effect of registration of marriage under this Chapter: Subject to the provisions contained in Sub- section (2) of Section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents :
Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.'Section 15 provides that a marriage celebrated in other forms may be registered only if the conditions mentioned therein are fulfilled. Section 16 further provides that the Marriage Officer shall register the marriage after following the procedure mentioned therein only if he is satisfied that all the conditions mentioned in Section 15 are fulfilled and thereafter enter a certificate of marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule. The form specified in the Fifth Schedule of the Special Marriage Act, 1954 is as follows :
'THE FIFTH SCHEDULE
(See Section 16)
CERTIFICATE OF MARRIAGE CELEBRATED IN OTHER FORMS
I, E.F., hereby certify that A.B. and C.D. appeared before me this .................. day of.................... 19 ........... and that each of them, in my presence and in the presence of three witnesses who have signed hereunder, have declared that a ceremony of marriage has been performed between them and that they have been living together as husband and wife since the time of their marriage, and that in accordance with their desire to have their marriage registered under this Act, the said marriage has, this ........................ day of................. 19...... been registered under this Act, having effect as from ....................
(Sd.) E.F.,
Marriage Officer for
(Sd.) A.B.,
Husband
(Sd.) C.D.
Wife
(Sd.) G.H. (Sd.) I.J. (Sd.) K.L.
Threewitness
Dated the .........day of ..... 19 .....
This form of the certificate of marriage issued under 16 extracted above does not state that the marriage was performed in the presence of the Marriage Officer but only states that the ceremony of marriage has been performed between the parties and that the parties have been living together as husband and wife since the time of the marriage and that in accordance with their desire to have the marriage registered under the Special Marriage Act, 1954, their marriage has been registered. Section 18 which indicates the effect of registration of the marriage under Chapter Ml states that where a certificate of marriage has been finally entered in the Marriage Certificate Book under the said Chapter III, the marriage shall, as from the date of such entry, be deemed to be solemnized under the said Act subject' to the provisions contained in Sub-section (2) of Section 24 of the Special Marriage Act, 1954. Sub-section (2) of Section 24 of the Special Marriage Act, 1954 is quoted herein below :
'24 Void marriages : (1) *** *** ***
(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in Clauses (a) to (e) of Section 15 :
Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17 and the decision of the District Court has become final.'
It will be clear from the aforesaid Sub-section (2) of Section 24 that the registration of any marriage under Chapter III of the Special Marriage Act, 1954 may be declared to be of no effect if the registration was in contravention of the conditions specified in Clauses (a) to (e) of Section 15. The first condition for registration of marriage in Section 15 is that a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since. Where therefore it is not established before the Court that a ceremony of marriage has actually been performed between the parties, the Court is entitled to take a view that the registration of such a marriage under Chapter III is of no effect. In our considered opinion, the certificate of marriage Ext, A issued under Section 16 of the Special Marriage Act, 1954 showing registration of marriage of the petitioner with Paramananda Kandi is not conclusive evidence of the fact of marriage between the petitioner and Paramananda Kandi but raises a presumption by virtue of Section 18 of the Special Marriage Act, 1954 that a marriage between the petitioner and Paramananda Kandi has been solemnized under the said Act. The Court may under Sub-section (2) of Section 24 of the Special Marriage Act, 1954 declare the registration of marriage under Chapter III as of no effect if the ceremony of marriage between the petitioner and Paramananda Kandi was not shown to have been performed by evidence led by the parties in the election petition filed by the opposite party No. 1 challenging the election of the writ petitioner to the post of Sarpanch of Golarhat Grama Panchayat.
10. The next question for decision in this writ petition is whether the learned Civil Judge (Junior Division), Kendrapara and the learned District Judge, Cuttack have shifted the burden to the petitioner, who was a returned candidate, for proving the averments in the election petition contrary to the well settled principle of law that the petitioner in an election petition has to prove the averments in the election petition. In the election petition, the opposite party No. 1 has averred that the writ, petitioner though herself did not belong to Scheduled Caste category has identified herself as the wife of Paramananda Kandi who is a Scheduled Caste person and has filed the nomination for election to the post of Sarpanch of Golarhat Grama Panchayat reserved for a Scheduled Caste woman. In the election petition, the opposite party No. 1 has further averred that the writ petitioner is not the legally married wife of Paramananda Kandi and for this reason was not a Scheduled Caste woman and her nomination for the seat which was reserved for a Scheduled Caste woman was improperly accepted by the Election Officer. Thus, the initial burden was on the opposite party No. 1 to prove his aforesaid case in the election petition. To prove this case, the opposite party No. 1 examined three witnesses: The first witness Diptirekha Kandi is a resident of village within Golarhat Grama Panchayat and she belongs to 'BAURI' caste. She has stated in her evidence that the writ petitioner is not a 'Harijan' but is a 'Mangata Jana' by caste and his father was Lokanath Nayak of Golarhat. She has also exhibited the certified copy of the Consolidation R.O.R. indicating the caste of the father of the writ petitioner as 'Mangata Jana' and not 'Harijan'. She has also denied that the writ petitioner has married one Paramananda Kandi. She has also denied in cross-examination that the writ petitioner was residing with Paramananda Kandi at village Pandit Patna. She. has denied that the writ petitioner has been recognized as the daughter- in-law by the parents of Paramananda Kandi. The second witness examined on behalf of the opposite party No. 1 is Gunanidhi Kandi. He has stated that he is a 'BAURI' by caste and belongs to the same caste as Paramananda Kandi. He has stated that Paramananda Kandi had fled away from an educational institution called Sishu Mandir of Golarhat with the writ petitioner, but the marriage of the writ petitioner with Paramananda Kandi was never discussed in their organization called 'Bhoikula Unnayana Parishad' which settles disputes including inter-caste marriages of the Bauri caste people. The third witness is one Narasingha Charan Kandi who is also a 'BAURI' by caste. He has stated that he was doing the job of Chief Advisor of the organization 'Bhoikula Unnayana Parishad' which has been formed to look after the betterment of the Bauri caste people. He has produced the register of the said organization before the Court to show that the inter-caste marriages are recorded in the said register. He has further stated that without recognition of any inter-caste marriage by the said organization, no person of Bauri caste is accepted by the Bauri caste community socially for marital relationship. He has further stated in his cross-examination that he cannot say where Paramananda Kandi has married and he cannot say to which caste the writ petitioner belongs. Thus, evidence had been led by the opposite party No. 1 to show that the writ petitioner did not belong to Scheduled Caste community and had not married Paramananda Kandi though Paramananda Kandi and the writ petitioner had fled away from an educational institution. It was for the writ petitioner to show by evidence that she had actually married Paramananda Kandi. The writ petitioner examined four witnesses including herself, but the learned Civil Judge (Junior Division), Kendrapara and the learned District Judge, Cuttack have disbelieved the case of the writ petitioner that she has married Paramananda Kandi. The reasons given by the learned District Judge in the impugned judgment for disbelieving the case of the writ petitioner that she has married Paramananda Kandi are many. First, the writ petitioner did not herself state in her written-statement/counter in the election petition that the marriage between her and Paramananda Kandi was solemnized at Jagannath Temple, Puri and has come out with this story for the first time while giving evidence. Second, Paramananda Kandi was examined as O.P.W. No. 3 on behalf of the writ petitioner and he has not stated in his evidence that their marriage was performed in Jagannath Temple at Puri and has stated that their marriage was registered marriage and was done on 14.1.2002. The learned District Judge has held that the evidence of the writ petitioner that the marriage was performed at the Jagannath Temple, Puri on 4.5.1997 was not corroborated by the evidence of Paramananda Kandi to whom she has claimed to have married with regard to date, venue and manner of marriage. Third, O.P.W. No. 1 examined on behalf of the writ petitioner was an agnatic uncle of Paramananda Kandi and not the paternal uncle of Paramananda Kandi and he has stated that the writ petitioner and Paramananda Kandi got married according to their caste custom at Mukti Mandap in Puri in the year 1997 and that he had attended the marriage along with Suryamani Kandi and Bijay Kandi and Mukti Mandap granted receipt for the marriage, but Suryamani Kandi and Bijay Kandi were not examined in this case. Fourth, O.P.W. No. 2 who belongs to Tilakpur and not Pandit Patna to which Paramananda Kandi belongs has stated that the writ petitioner has been recognized by his agnates and relations as the wife of Paramananda Kandi, but he has not attended the marriage at Puri. Fifth, the parents of Paramananda Kandi or their caste people of Pandit Patna were not examined in the case to speak about the marriage of Paramananda Kandi with the writ petitioner at Puri and none of the close relations of Paramananda Kandi were examined. Nothing has been explained as to why the mother of Paramananda Kandi has not been examined in this case. Lastly, it is only the O.P.W. No. 1, the agnatic uncle of Paramananda Kandi who has stated that he had attended the marriage of the writ petitioner with Paramananda Kandi at Puri, but this was not the evidence of Paramananda Kandi examined as O.P.W. No. 3. For all the aforesaid reasons, the learned District Judge has held that the Court cannot accept that there was legal marriage between the writ petitioner and Paramananda Kandi. Since the performance of the ceremony of marriage between the writ petitioner and Paramananda Kandi itself was not proved, the learned District Judge has further held that the condition for registration of marriage in Clause (a) of Section 15 of Chapter III of Special Marriage Act, 1954 had not been satisfied and Ext. A obtained just four days before the date of filing of nomination could not have any evidentiary value. This finding is in accord with the provisions of Sub-section (2) of Section 24 of the Special Marriage Act, 1954 which, as discussed above, provides that the registration of a marriage under Chapter III may be declared to have no effect if the registration was in contravention of any of the conditions specified in Clauses (a) to (e) of Section 15 of the said Act. After weighing the evidence led by the parties the learned District Judge has come to the conclusion that the marriage between the writ petitioner and Paramananda Kandi had not been proved on the basis of evidence adduced by both the parties and therefore the question of onus of proof in such a case does not arise. In Harmes and Anr. v. Hinkson and Anr., AIR 1946 PC 156, the Privy Council has quoted the following words from a judgment of Lord Dunedin on 'the burden of proof' :
'Onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered.'
The contention of Mr. Dash that the Courts below have shifted the burden of proof to the returned candidate is thus misconceived.
11. The last question to be decided in this case is whether the High Court can in exercise of jurisdiction under Article 226 of the Constitution interfere with the aforesaid findings of the learned District Judge, Cuttack in impugned judgment that the marriage between the writ petitioner and Paramananda Kandi had not been established. In Kalinga Cement Limited and Anr. v. Union of India and Ors. (supra), this Court has held that in a certiorari proceeding under Article 226 of the Constitution, the High Court will interfere with the findings of a subordinate Court or an inferior tribunal only if there is an error of jurisdiction or error of law apparent on the face of the order passed by the subordinate Court or inferior tribunal. Since we have not found any such error of jurisdiction of error of law apparent on the face of the impugned judgment, we are not inclined to interfere with the same.
12. No other ground having been taken for challenging the impugned judgment of the learned District Judge, Cuttack, we dismiss this writ petition and vacate the interim orders passed by this Court on 11.3.2003 in Misc. Case No. 1786 of 2003. But considering the facts and circumstances, parties shall bear their own costs.
Sujit Barman Roy, C.J.
13. I agree.