M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712,AIR 2011 SC 146
Ss. 61 to 65 - Duplicate copy - Admissibility, forms in which may be adduced and authentication of - Rationale for
permitting secondary evidence - Held, only in exceptional cases secondary evidence would be admissible - However, if
secondary evidence is admissible, it may be adduced in any form in which it is available i.e. it can be by production of a
copy, duplicate copy of a copy, by oral evidence of contents or in another form - Secondary evidence must be
authenticated by foundational evidence that the alleged copy is in fact a true copy of the original - Exceptions to the rule
requiring primary evidence are designed to provide relief where a party is genuinely unable to produce original through
no fault of his - In instant case, original conversion certificate issued by Arya Samaj reaffirming appellant's faith in
Hinduism was lost by her uncle, which necessitated her obtaining a duplicate copy - Moreover, contents of the document
clearly established that it was issued for second time on request of appellant after original was lost - Hence, duplicate
copy of conversion certificate was admissible in evidence,
Election
Reserved Constituency
Conversion/Reconversion - Reconversion to Hinduism from Christianity - Proof - Matters to be considered - Held,
conversion certificate (Ext. R-13) amply demonstrates that appellant had successfully proved her claim of reaffirmation of
Hindu faith by undergoing rituals of conversion in Arya Samaj - Moreover, her evidence to the effect that though her
father was a Christian, but her mother was Hindu and she practised Hinduism throughout her life, was consistent and
reliable - Witnesses examined in support thereof had actually visited her house, or attended her wedding (which was
performed according to Hindu rituals), or had been in close proximity with her and her husband's family - As against this,
evidence produced by election petitioner was mostly hearsay, contradictory and smacked of political rivalry which did not
conclusively prove that appellant professed Christianity - Furthermore, no one raised any objection to appellant filing her
nomination for Assembly Elections in 2006 from the reserved constituency - All the issues were raised after the appellant
had won the election,
Election
Reserved Constituency
Conversion/Reconversion - Burden of proof - Held, lay on election petitioner to prove that appellant returned candidate
still professed Christianity - Reasoning given by High Court to reverse and shift burden of proof on appellant that in view
of her admission that she was a Christian before converting to Hinduism burden lay on her to prove that she had
renounced Christianity, erroneous - Even assuming that High Court was justified in doing so, appellant by adducing
cogent and reliable evidence had discharged same, (
Evidence Act, 1872
Ss. 61 to 65 - Duplicate copy - Admissibility, forms in which may be adduced and authentication of - Rationale for
permitting secondary evidence - Held, only in exceptional cases secondary evidence would be admissible - However, if
secondary evidence is admissible, it may be adduced in any form in which it is available i.e. it can be by production of a
copy, duplicate copy of a copy, by oral evidence of contents or in another form - Secondary evidence must be
authenticated by foundational evidence that the alleged copy is in fact a true copy of the original - Exceptions to the rule
requiring primary evidence are designed to provide relief where a party is genuinely unable to produce original through
no fault of his - In instant case, original conversion certificate issued by Arya Samaj reaffirming appellant's faith in
Hinduism was lost by her uncle, which necessitated her obtaining a duplicate copy - Moreover, contents of the document
clearly established that it was issued for second time on request of appellant after original was lost - Hence, duplicate
copy of conversion certificate was admissible in evidence,
Evidence Act, 1872
Ss. 114 Ill. (e), 35, 50, 51 and 59 to 62 - Proof of contents of document - Presumption of authenticity - If rebutted -
Determination of - All endorsements on permanent community certificate showing that appellant belonged to ``Hindu
Pallan'' backward class - Discrepancies pointed out not established since authorities concerned not examined -
Contention that certificate was issued within two days of receipt of application raising doubts as to its veracity also
without substance, since no format for issuance thereof prescribed - Thus, validity of community certificate presumed
unless shown otherwise by Respondent 1 who clearly failed to do so,
Hindu Law
Hinduism
Dimensions - Stated - Professing Hinduism - Conditions for - Reiterated, determination of religious acceptance of a
person must not be made on basis of his name or his birth - When a person intends to profess Hinduism, and he does all
that is required by practices of Hinduism in region or by caste to which he belongs, and he is accepted as a Hindu by all
persons around him, he is said to be a Hindu,
Conversion/Reconversion
Issue of parentage if proved that appellant (returned candidate) was born and brought up as Christian - RWs (in
election petition) stating that marriage of appellant's parents was performed as per Christian religion in CSI School -
Held, such admission would not tilt balance in favour of election petitioner's contention that appellant professed
Christianity - Possibility that at instance of appellant's father who was a Christian, marriage was performed in church -
Appellant herself had stated that her father was a Christian while her mother was Hindu; that her father had separated
from her mother; her mother continued to profess Hindu religion and Hindu Pallan community accepted her as such -
Hence, so-called admission would not assist election petitioner to prove that appellant was a Christian,
Election
Election petition
Material facts and full particulars - False particulars - Allegations - Sustainability - RWs stating that marriage of
appellant's parents was performed as per Christian rites, while appellant stating that their marriage was performed as per
Hindu customs - Held, at the time of her parents' marriage appellant was not even born and had stated what was told to
her by her mother and relatives - Hence, such statement cannot be put against appellant that she was making false
assertions,
Constitution of India
Arts. 330 , 332 and 341 - Scheduled Caste reserved constituency - Entitlement to contest - Matters to be established -
``Scheduled Castes'' - Meaning - Held, means such castes, races or tribes or parts of or groups within such castes, races
or tribes as are deemed under Art. 341 to be Scheduled Castes for purposes of the Constitution - In order to claim
benefits of reservation under Arts. 332/330, a person must establish that caste to which he belongs is notified in 1950
Order and he is not professing a religion different from the Hindu, Sikh or Buddhist,
Election
Grounds of challenging election
False declaration as Scheduled Caste in contesting from reserved constituency - Burden and degree of proof - Held,
election petition on grounds of corrupt practices is not a criminal proceeding; but it is no less than a criminal proceeding
with regard to proof - Though, in present case, charges are not those of corrupt practices, they are not any lesser in
terms of seriousness; hence burden of proof was on election petitioner to prove charges beyond reasonable doubt - On
facts held, election petitioner failed to discharge that burden as evidence produced in support of his allegations did not
inspire confidence and was mostly hearsay, (2010) 9 SCC 712-I
Election
Election petition
Disposal of election petition - Rules of procedure - Hypertechnicality to be avoided - Held, pleadings and evidence
adduced require to be read conjointly and not by applying hypertechnical approach of reading between lines to arrive at a
finding against returned candidate - Such an approach would defeat entire election process - Hypertechnicality requires
to be eschewed and ground realities kept in view while deciding election petitions - However, such an approach need not
be adopted when an election petition is filed on grounds of corruption, inciting people on ground of religion, etc.,
Election
Election Trial
Burden of proof - Held, lies on election petitioner,
Election
Election petition
Material facts and full particulars - Non-disclosure - Effect - Filing of election petition on frivolous grounds - Effect -
Restated - Amendment to pleadings beyond statutory time-limit - Impermissibility,
Election
Election petition
Material facts and full particulars - False particulars - Determination of - School records showing that appellant belonged
to Indian Christian Pallan community and studied in CSI School but in her declaration filed along with her nomination
papers she stating that she studied in Government High School - On facts held, said discrepancy had been satisfactorily
explained by the appellant - Moreover, that by itself cannot be a ground to hold appellant ineligible to contest from
reserved constituency,
Hindu Law
Conversion/Reconversion
Proof - Birth register of children of appellant describing their mother as ``Glory'' and religion as Christianity - PW 4,
Tahsildar admitting that none of the entries in register were entered on reporting of births by the parents, but birth was
reported by Village Head Nurse - Held, is an important admission as it indicates that not many people had knowledge of
conversion of appellant and her husband, (2010) 9 SCC 712-N
Print Page
Ss. 61 to 65 - Duplicate copy - Admissibility, forms in which may be adduced and authentication of - Rationale for
permitting secondary evidence - Held, only in exceptional cases secondary evidence would be admissible - However, if
secondary evidence is admissible, it may be adduced in any form in which it is available i.e. it can be by production of a
copy, duplicate copy of a copy, by oral evidence of contents or in another form - Secondary evidence must be
authenticated by foundational evidence that the alleged copy is in fact a true copy of the original - Exceptions to the rule
requiring primary evidence are designed to provide relief where a party is genuinely unable to produce original through
no fault of his - In instant case, original conversion certificate issued by Arya Samaj reaffirming appellant's faith in
Hinduism was lost by her uncle, which necessitated her obtaining a duplicate copy - Moreover, contents of the document
clearly established that it was issued for second time on request of appellant after original was lost - Hence, duplicate
copy of conversion certificate was admissible in evidence,
Election
Reserved Constituency
Conversion/Reconversion - Reconversion to Hinduism from Christianity - Proof - Matters to be considered - Held,
conversion certificate (Ext. R-13) amply demonstrates that appellant had successfully proved her claim of reaffirmation of
Hindu faith by undergoing rituals of conversion in Arya Samaj - Moreover, her evidence to the effect that though her
father was a Christian, but her mother was Hindu and she practised Hinduism throughout her life, was consistent and
reliable - Witnesses examined in support thereof had actually visited her house, or attended her wedding (which was
performed according to Hindu rituals), or had been in close proximity with her and her husband's family - As against this,
evidence produced by election petitioner was mostly hearsay, contradictory and smacked of political rivalry which did not
conclusively prove that appellant professed Christianity - Furthermore, no one raised any objection to appellant filing her
nomination for Assembly Elections in 2006 from the reserved constituency - All the issues were raised after the appellant
had won the election,
Election
Reserved Constituency
Conversion/Reconversion - Burden of proof - Held, lay on election petitioner to prove that appellant returned candidate
still professed Christianity - Reasoning given by High Court to reverse and shift burden of proof on appellant that in view
of her admission that she was a Christian before converting to Hinduism burden lay on her to prove that she had
renounced Christianity, erroneous - Even assuming that High Court was justified in doing so, appellant by adducing
cogent and reliable evidence had discharged same, (
Evidence Act, 1872
Ss. 61 to 65 - Duplicate copy - Admissibility, forms in which may be adduced and authentication of - Rationale for
permitting secondary evidence - Held, only in exceptional cases secondary evidence would be admissible - However, if
secondary evidence is admissible, it may be adduced in any form in which it is available i.e. it can be by production of a
copy, duplicate copy of a copy, by oral evidence of contents or in another form - Secondary evidence must be
authenticated by foundational evidence that the alleged copy is in fact a true copy of the original - Exceptions to the rule
requiring primary evidence are designed to provide relief where a party is genuinely unable to produce original through
no fault of his - In instant case, original conversion certificate issued by Arya Samaj reaffirming appellant's faith in
Hinduism was lost by her uncle, which necessitated her obtaining a duplicate copy - Moreover, contents of the document
clearly established that it was issued for second time on request of appellant after original was lost - Hence, duplicate
copy of conversion certificate was admissible in evidence,
Evidence Act, 1872
Ss. 114 Ill. (e), 35, 50, 51 and 59 to 62 - Proof of contents of document - Presumption of authenticity - If rebutted -
Determination of - All endorsements on permanent community certificate showing that appellant belonged to ``Hindu
Pallan'' backward class - Discrepancies pointed out not established since authorities concerned not examined -
Contention that certificate was issued within two days of receipt of application raising doubts as to its veracity also
without substance, since no format for issuance thereof prescribed - Thus, validity of community certificate presumed
unless shown otherwise by Respondent 1 who clearly failed to do so,
Hindu Law
Hinduism
Dimensions - Stated - Professing Hinduism - Conditions for - Reiterated, determination of religious acceptance of a
person must not be made on basis of his name or his birth - When a person intends to profess Hinduism, and he does all
that is required by practices of Hinduism in region or by caste to which he belongs, and he is accepted as a Hindu by all
persons around him, he is said to be a Hindu,
Conversion/Reconversion
Issue of parentage if proved that appellant (returned candidate) was born and brought up as Christian - RWs (in
election petition) stating that marriage of appellant's parents was performed as per Christian religion in CSI School -
Held, such admission would not tilt balance in favour of election petitioner's contention that appellant professed
Christianity - Possibility that at instance of appellant's father who was a Christian, marriage was performed in church -
Appellant herself had stated that her father was a Christian while her mother was Hindu; that her father had separated
from her mother; her mother continued to profess Hindu religion and Hindu Pallan community accepted her as such -
Hence, so-called admission would not assist election petitioner to prove that appellant was a Christian,
Election
Election petition
Material facts and full particulars - False particulars - Allegations - Sustainability - RWs stating that marriage of
appellant's parents was performed as per Christian rites, while appellant stating that their marriage was performed as per
Hindu customs - Held, at the time of her parents' marriage appellant was not even born and had stated what was told to
her by her mother and relatives - Hence, such statement cannot be put against appellant that she was making false
assertions,
Constitution of India
Arts. 330 , 332 and 341 - Scheduled Caste reserved constituency - Entitlement to contest - Matters to be established -
``Scheduled Castes'' - Meaning - Held, means such castes, races or tribes or parts of or groups within such castes, races
or tribes as are deemed under Art. 341 to be Scheduled Castes for purposes of the Constitution - In order to claim
benefits of reservation under Arts. 332/330, a person must establish that caste to which he belongs is notified in 1950
Order and he is not professing a religion different from the Hindu, Sikh or Buddhist,
Election
Grounds of challenging election
False declaration as Scheduled Caste in contesting from reserved constituency - Burden and degree of proof - Held,
election petition on grounds of corrupt practices is not a criminal proceeding; but it is no less than a criminal proceeding
with regard to proof - Though, in present case, charges are not those of corrupt practices, they are not any lesser in
terms of seriousness; hence burden of proof was on election petitioner to prove charges beyond reasonable doubt - On
facts held, election petitioner failed to discharge that burden as evidence produced in support of his allegations did not
inspire confidence and was mostly hearsay, (2010) 9 SCC 712-I
Election
Election petition
Disposal of election petition - Rules of procedure - Hypertechnicality to be avoided - Held, pleadings and evidence
adduced require to be read conjointly and not by applying hypertechnical approach of reading between lines to arrive at a
finding against returned candidate - Such an approach would defeat entire election process - Hypertechnicality requires
to be eschewed and ground realities kept in view while deciding election petitions - However, such an approach need not
be adopted when an election petition is filed on grounds of corruption, inciting people on ground of religion, etc.,
Election
Election Trial
Burden of proof - Held, lies on election petitioner,
Election
Election petition
Material facts and full particulars - Non-disclosure - Effect - Filing of election petition on frivolous grounds - Effect -
Restated - Amendment to pleadings beyond statutory time-limit - Impermissibility,
Election
Election petition
Material facts and full particulars - False particulars - Determination of - School records showing that appellant belonged
to Indian Christian Pallan community and studied in CSI School but in her declaration filed along with her nomination
papers she stating that she studied in Government High School - On facts held, said discrepancy had been satisfactorily
explained by the appellant - Moreover, that by itself cannot be a ground to hold appellant ineligible to contest from
reserved constituency,
Hindu Law
Conversion/Reconversion
Proof - Birth register of children of appellant describing their mother as ``Glory'' and religion as Christianity - PW 4,
Tahsildar admitting that none of the entries in register were entered on reporting of births by the parents, but birth was
reported by Village Head Nurse - Held, is an important admission as it indicates that not many people had knowledge of
conversion of appellant and her husband, (2010) 9 SCC 712-N
No comments:
Post a Comment