Point of Law : Requirement under Section 65 B of the Evidence Act is mandatory.

JUDGMENT :

Pertaining to the election to the Legislative Constituency – Devikulam 088 in Idukki District in the year 2021 (6/4/2021), the petitioner came up challenging the election of returned candidate, the respondent, on the reason that the said constituency is reserved for Scheduled Caste among Hindus and the returned candidate is not a person belonging to Scheduled Caste among Hindus within the State of Kerala, hence violated the provision – Section 5 of the Representation of Peoples Act, 1951. The returned candidate Sri.A.Raja, S/o Antony is a Christian and not a member of Scheduled Caste. The objection raised by the petitioner before the Returning Officer against the acceptance of nomination was rejected without assigning any valid reason. After the election, the returned candidate was declared elected by a margin of 7848 votes.

2. It is alleged that the respondent is not a member of 'Hindu Parayan' within the State of Kerala. The grandparents of respondent on the paternal side are Pushpam and Lakshmanan, who were residents of Thirunelveli, Tamil Nadu, who migrated to Kerala in 1951 (the present district Idukki). It is further submitted that Hindu Parayan is a scheduled caste in relation to the State of Tamil Nadu in Part XVI of the Schedule to the Constitution (Schedule Castes) Order, 1950. Hence, they cannot claim to be a member of Scheduled Caste Hindu Parayan in Part VIII of Order 1950 in relation to State of Kerala. The descendants of Pushpam and Lakshmanan also cannot claim to be a member of Hindu Parayan in Part VIII of Schedule to the Order, 1950. The respondent is the son of Antony and Esther, born on 17/10/1984. Antony and Esther are Christians baptised by the CSI Church in 1992 in Kundala Estate by Pastor Ebanezer Mani. Esther died on 13/10/2016 and was buried at CSI Church in Kundala estate. The very same Pastor Ebanezer Mani baptized the respondent herein and is a member of CSI Church, Kundala Division. The respondent married Shiny Priya in accordance with Christian religious rites in the presence of Ebanezer Mani. She is also a member of CSI Church. The caste certificate filed along with the nomination issued by Tahsildar, Devikulam depicting the respondent as Hindu Parayan is not correct. Hence the election of the respondent is liable to be declared void under Section 100(1)(a) and 100 (1)(d)(i) of the Representation of Peoples Act, 1951.

3. The returned candidate, the respondent, in turn submitted his written statement raising the following contentions :

The election petition was filed beyond the period of limitation prescribed under the provisions of the Representation of Peoples Act, 1951. It is not properly verified. The respondent belonged to Hindu Parayan Community in relation to the State of Kerala. Annexure A1 is the caste certificate issued by Tahsildar, Devikulam. The Returning Officer rightly rejected the objection to the acceptance of nomination paper. The paternal grandparents of this respondent started their residence in the erstwhile Travancore prior to 1950. They were employees of Kundala estate. The contentions raised by the petitioner are mutually destructive and conflicting regarding the alleged year on which the respondent predecessor-in-interest migrated to Kerala. As the grandparents of the respondent had been issueless for a long period, on the advise of some well-wishers, they offered prayer in a nearby church. Thereafter they were blessed with a child to whom the name Antony, a Christian name, was given. The name of mother is not Esther, but Easwari. The parents of the respondent were Hindus and they never converted to Christianity. The allegation of baptism is incorrect, hence disputed. The wife of the respondent, Shyni Priya, is a Hindu and not a member of CSI Church. Their marriage was solemnized at the house of the respondent. Ebanezer Mani was an invitee and he attended the marriage. It is true that some of the family members of Shyni Priya converted to Christianity. Hence presse