JUDGMENT :

A.S. Bopanna, J.

1. The appellant is before this Court assailing the judgment and order dated 25.04.2023 passed by the Gauhati High Court, Itanagar Bench in Election Petition No.3 of 2019. Through the said judgment and order the High Court has arrived at a conclusion that the appellant herein who is the returned candidate had not presented her nomination paper in accordance with Section 33 of the Representation of the People Act, 1951 (‘R.P.Act’ for short) and as such the nomination paper of the appellant is liable to be rejected under Section 36(2)(b) of R.P. Act, 1951. In that view, it is held that the improper acceptance of the nomination by the Returning Officer has therefore materially affected the result of the election. Hence the election of the appellant from 45-Hyuliang (ST) Assembly Constituency in the election held pursuant to the notification dated 18.03.2019 is declared as void under Section 100(1)(d)(iv) of the R.P. Act 1951. The appellant therefore claiming to be aggrieved by the said judgment and order is before this Court in this appeal.

2. We have heard Mr. Jaideep Gupta, learned senior counsel for the appellant, Mr. Santosh Paul, learned senior counsel for the respondent and perused the appeal papers.

3. The brief facts to be noted is that the appellant and her late husband belong to the Mishmi tribe in Arunachal Pradesh. The husband of the appellant Late Khaliko Pul was the sitting member of the Legislative Assembly from 45-Hyuliang (ST) Assembly Constituency. As permitted under the custom of the said tribe, Late Khaliko Pul married the appellant during May, 2015 as his third wife. The said Late Khaliko Pul died intestate on 09.08.2016. He is survived by three wives (including the appellant) and seven sons. On the death of the husband, the appellant, for the first time contested from the said constituency in the bye-election that ensued on 19.11.2016 and was successful. After the completion of the term of the assembly for the earlier period, when the elections were notified on 18.03.2019, the appellant filed her nomination on 22.03.2019. She enclosed the relevant papers which included the affidavit under Form 26 of Rule 4A of the Conduct of Election Rules, 1961 (‘Rules 1961’ for short).

4. The respondent herein was also a candidate and had filed his nomination from the said constituency. On 26.03.2019 the respondent filed a counter affidavit challenging the nomination of the appellant alleging that there is substantial defect in the nomination filed by the appellant and urged the Returning Officer to reject her nomination. The ground on which such challenge was raised by the respondent is that the appellant who has an interest and claim over the properties of her spouse has not mentioned the same in her affidavit filed on 25.03.2019. In that regard, it was the case of the respondent that the non-disclosure of the properties belonging to her spouse amounts to defects of substantial character and as such the nomination was liable to be rejected. The Returning Officer, through his order dated 26.03.2019 had however rejected the objection raised by the respondent and had accepted the nomination of the appellant. In that background, the elections were held on 11.04.2019 and the results were declared on 23.05.2019 wherein the appellant had secured 5663 votes as against the 4591 votes secured by the respondent. The appellant was therefore declared elected by a margin of 1072 votes as a Member of the Legislative Assembly from the 45-Hayuliang(ST) Assembly Constituency.

5. It is in that backdrop, the respondent challenged the election of the appellant by filing the Election Petition No.3/2019 on 03.07.2019 before the Gauhati High Court, Itanagar Bench on the ground that the nomination of the appellant was improperly accepted which has materially affected the result of the election. The appellant in response had filed a Recrimination Case No.1(AP)/2020 on 20.01.2020 contending that the respondent held an office