Shri. Nirmal Enem Horo vs Smt. Jahan Ara Jaipal Singh on 26 April, 1973

    Shri. Nirmal Enem Horo vs Smt. Jahan Ara Jaipal Singh on 26/4/1973

JUDGMENT

   D.G. Palekar, J.

   1. This appeal arises from an Order dated April 21, 1972 passed by the Patna
High Court in Election Petition No. 9 of 1971 setting aside the election of the
appellant at the instance of the respondent Mrs. Jahan Ara Jaipal Singh.

   2. On January 21, 1971 the Election Commission of India issued a Notification
calling on the 51 Khunti Parliamentary Scheduled Tribes Constituency of Ranchi
to elect a Member of the Lok Sabha in the vacancy caused by the dissolution of
the Lok Sabha in the month of December, 1970. The last date for filing
nominations was 3-2-1971 and the date of scrutiny of nominations was 4-2-1971.
Nearly fourteen persons filed their nominations two of them being the appellant,
Mr. Horo, and the respondent, Mrs. Jaipal Singh. It appears one of the
candidates objected to the nomination of Mrs. Jaipal Singh on the ground that
she was not a member of a Scheduled Tribe. That objection was considered by the
Returning Officer who upheld the objection and reflected her nomination paper.
In due course the election was held and the appellant, Mr. Horo, was declared
elected. The petition namely Election Petition No. 9 of 1971 was filed by Mrs.
Jaipal Singh on the ground that her nomination paper had been illegally rejected
since by her marriage with the late Mr. Jaipal Singh who was admittedly a member
of the Munda (Tribe, she had obtained the status of a Munda which is one of the
Scheduled Tribes recognized under the Constitution. She alleged that according
to the Munda customary law when a Munda is married outside the Munda Tribe and
Ms marriage is accepted by the Munda Tribe, he continues to be member of that
Tribe and his wife acquires membership of the Tribe and becomes a member of her
husband's family. She alleged that though she was not formerly a member of that
Tribe she, on her marriage to Mr. Jaipal Singh in 1954 according to the rites
and rituals of the Mundas, in the presence of the elders and other members of
the Tribe, had been accepted within the fold of that Tribe as a Munda and hence
was not liable to be disqualified for election in the special Tribal
Constituency. The appellant contested the petition on several grounds. But most
of the grounds were covered by judgments between the same parties In a previous
Election Petition filed by Mrs. Jaipal Singh. That petition came finally to this
Court and is reported as N.E. Horo v. Jahan Ara Jaipal Singh .

   3. The report shows that after the death of Mr. Jaipal Singh who was a member
of Parliament from the Constituency referred to above, the Election Commission
had on May 1, 1970 called upon that Constituency to elect a member to the Lok
Sabha. Several persons filed nomination papers, Mr. Horo and Mrs. Jaipal Singh
being two of them. Objection was raised to Mrs. Jaipal Singh's nomination then
also on the ground that she was not a member of the Munda Scheduled Tribe. That
objection was upheld by the Returning Officer. After the polling, Mr. Horo was
declared elected and on July 8, 1970 Mrs. Jaipal Singh filed the election
petition objecting to the election on the ground that her nomination paper had
been rejected illegally. That was Election Petition No. 2 of 1970. When that
petition was pending in the High Court, the Lok Sabha was dissolved, and, as
already pointed out. the Election Commission called upon the Constituency on
January 21, 1971 to elect a new member of the Lok Sabha. Thereupon Mr. Horo
applied to the High Court to dismiss the election petition because it was now
in-fructuous as a result of the dissolution of the Lok Sabha. The learned Judge
refused to do so, and heard the petition and came to the conclusion that Mrs.
Jaipal Singh was entitled to be treated as a member of the Munda tribe. But
before the decision this second contest arose between the same parties and the
nomination paper of Mrs. Jaipal Singh was again rejected by the Returning
Officer on the same ground on which that had been rejected by the Returning
Officer in 1970. The Returning Officer did not have the benefit of the finding
of the High Court at that time.

   4. Since the High Court decision in the previous Election Petition No. 2 of
1970 went against Mr. Horo he appealed to this Court But he failed in that
appeal because this Court agreed with the High Court that once the marriage of a
Munda male with a non-Munda female is approved or sanctioned by the Parha
Panchayat they become members of the community. This Court held that even if a
female is not a member of the Tribe by birth, she having married a Tribal after
due observance of all formalities and after obtaining the approval of the elders
of the Tribe, would belong to the Tribal community to which her husband belongs
on the analogy of the wife taking the husband's domicile. This Court's judgment
was rendered on 2-2-1972 and was available to the learned Judge of the High
Court when dealing with the present election petition namely Election Petition
No. 9 of 1971 and naturally the points in controversy before him became very
limited. There was the judgment of this Court before him which held that Mrs.
Jaipal Singh had become a Munda by reason of her marriage to the late Mr. Jaipal
Singh and since her nomination had been improperly rejected on the ground that
she was not a Munda, the election of Mr. Horo was liable to be set aside.

   5. In appeal before us Mr. Anthony appearing for Mr. Horo tried to persuade
us that the judgment of this Court in the previous petition requires to be
reconsidered the contention being that Mrs. Jaipal Singh who was a christian
could not change her ethnic group by merely marrying a Munda. That point had
been considered at great length by this Court and we do not think there is any
good reason for a review of that decision by a larger Bench.

   6. The only point on which argument was addressed to us was on the finding
that a certain ground put forward by Mr. Horo was barred by constructive res
judicata. It was contended by Mr. Anthony that the principle of constructive res
judicata did not apply to the ground put forward, and, hence, in the absence of
a trial on merits of that ground the Order passed by the learned Judge setting
aside the election was wrong. We shall first state what the ground was and then
decide whether the ground was available to Mr. Horo for re-agitation.

   7. It appears that Mrs. Jaipal Singh is a Ceylonese Tamil Christian. Her
first marriage was with Mr. Curtis But that marriage ended in a divorce. In the
course of her evidence in the previous petition, namely, Election Petition No. 2
of 1970 it seems to have been elicited that she had married Mr. Jaipal Singh on
7-5-1954 and that the decree nisi had been made absolute on 6-5-1954. It was
contended before the learned Judge that in view of Section 57 of the Indian
Divorce Act, 1869 Mrs. Jaipal Singh could not enter into a second marriage until
after the expiry of six months from the date the decree had been made absolute.
The learned Judge pointed out that this very point had been takes before the
Supreme Court in the previous petition and, therefore, must be deemed to have
been finally decided. The learned Judge was of the opinion that the bar raider
Section 57 of the Indian Divorce Act, 1889 was a matter which might and ought to
have been made a ground of defence in the former election petition and
consequently it was deemed to be a mattes directly and substantially in issue in
the previous election petition and, therefore, cannot be allowed to be raised in
the present petition.

   8. This Court's judgment in the previous petition clearly goes to show that
this Court refused to entertain this ground as it had not been pleaded or
pressed before the trial court. Mr. Anthony, appearing lost Mr. Horo in that
appeal had distinctly raised this point as is seen from para 11 of the judgment
at page 1844 of the report. point was disposed of by this Court with these
observations to be found in para 12.

     As regards the first point it was never canvassed or argued before the High
Court No plea was taken by Shri Horo in the written statement that there could
be no valid marriage between the respondent and late Shri Jaipal Singh owing to
the provisions contained in Section 57 of the Indian Divorce Act 1869 until
after the lapse of a period oil six months from the date the decree of divorce
was made absolute. None of the issues which were framed by the High Court
Involves the question now sought to be agitated based on the provisions of
Section 57 of the Indian Divorce Act. It appears that advantage is sought to be
taken from the statement of the respondent about the dates when the decree
absolute was granted and when the marriage took place between the respondent and
late Shri Jaipal Singh. In the absence of any pleadings or issues no material
has been placed on the record to show that in view o2 the provisions of Section
57 of the aforesaid Act there could not be a valid marriage according to the
Munda customary law. It must be remembered that the respondent contracted a
marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and
not as one Christian marrying another Christian. Star was the matter pursued in
cross-examination of the respondent and she was not asked as to how she could
get over the bar of Section 57 in the way of remarriage before the expiry of the
prescribed period. In these circumstances we do not consider that such a point
can be allowed to be agitated for the first time before this Court.

   9. The above passage goes to show that the point was finally disposed of.
Some snap answers given by the respondent in her evidence in that case were
sought to be exploited in this Court for the purpose of supporting a new
argument under Section 57 of the Indian Divorce Act, 1869 although there was no
plea either in the pleadings or in the arguments before the learned Judge who
decided the petition. The observations proceed on the basis that it was open to
the parties to put forward the plea which Mr. Horo later put forward before the
Supreme Court and since the same was not done, this Court could not permit the
plea to be taken for the first time in this Court. It is not as if this Court
kept the matter open for re-agitation. It definitely ruled out the plea because
it was not pressed before the learned Judge who dealt with the election
petition. Mr. Anthony submitted that the question of res judicata does not arise
under Explanation 4 of Section 11 of the CPC because the expression "any matter
which might and ought to have been made ground of defence" postulates knowledge
of a fact by the party making the defence. He further submitted that Mr. Horo
could not possibly know about the past of Mrs. Jaipal Singh and his only source
of knowledge at the time was Mrs. Jaipal Singh herself. The answer to this is
already given in the judgment. If Mr. Horo's source of information was Mrs.
Jaipal Singh when she was in the witness box it was open to him as pointed out
in the judgment to pursue the cross-examination with a view to show that the bar
under Section 57 of the Divorce Act would be effective. Even after getting the
two dates in the course of the evidence no body thought of Section 57,which may
either be because counsel appearing for Mr. Horo then or Mr. Horo himself did
not believe the dates given by Mrs. Jaipal Singh to be accurate or because they
did not want to make any capital of the snap answers given in the course of the
evidence since the point was not raised in the pleadings nor put in issue. The
judgment clearly suggests that it was open to agitate the matter before the High
Court hearing the petition on the basis of Section 57. But the point was not
pressed and must be deemed to have been given up. That was why this Court did
not allow the point to be raised in appeal. In these circumstances it is not
open to re-agitate it between the parties in a subsequent! proceeding.

   10. No other point was pressed before us and therefore the appeal will have
to be dismissed with costs.