Thursday, January 19, 2012

Rameshbhai Dabhai Naika V/s.State of Gujarat & Others -CIVIL APPEAL NO. 654 OF 2012 (January 18, 2012)


REPORTABLE


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO. 654 OF 2012

(Arising out of S.L.P (CIVIL) NO.4282 of 2010)




Rameshbhai Dabhai Naika ... Appellant
versus
State of Gujarat & Others ... Respondents

J U D G M E N T

Aftab Alam,J.




1. Leave granted.


2. The question that once again arises before this Court is


what would be the status of a person, one of whose parents


belongs to the scheduled castes/scheduled tribes and the other


comes from the upper castes, or more precisely does not come


from scheduled castes/scheduled tribes and what would be the


entitlement of a person from such parents to the benefits of


affirmative action sanctioned by the Constitution. The Gujarat


High Court has proceeded on the basis that the issue is settled


by the decisions of this Court in Valsamma Paul v. Cochin


University and others, (1996) 3 SCC 545 followed by Punit Rai


v. Dinesh Chaudhary, (2003) 8 SCC 204 and Anjan Kumar v.


Union of India and others, (2006) 3 SCC 257. On the strength


of those three decisions the High Court upheld the order


passed by the Scrutiny Committee cancelling the tribal


certificate earlier obtained by the appellant on the sole ground


that his father was a non-tribal, belonging to the Hindu caste


Kshatriya. The High Court did not advert to the fact that the


mother of the appellant was undeniably a Nayak, one of the


scheduled tribes and the appellant himself and his other


siblings were also married to Nayaks. The High Court also did


not refer to the evidences adduced by the appellant on the


question of his upbringing as a member of the Nayak


community and his acceptance in that community (or for that


matter the contra evidence produced by the respondent


questioning his claim to be a member of the scheduled tribe). In


view of the fact that his father was a non-tribal, the High Court


deemed everything else as of no relevance and declined to


record any finding on whether the appellant was, in fact,


brought up as a tribal and, consequently, shared all the


indignities and handicaps and deprivations normally suffered by


the tribal communities.



3. The appellant, thus, lost his tribal certificate and the Fair


Price shop that was allotted to him on that basis. He has now


brought the matter to this Court making the grievance that the


High Court order does not impact him alone but as a result of


the order of the High Court his children too, though


undisputedly born to a tribal mother, are bound to lose their


tribal identity.



4. The High Court seems to have read the decisions in


Valsamma Paul, Punit Rai and Anjan Kumar as laying down the


rule that in all cases and regardless of other considerations the


offspring of an inter-caste marriage or a marriage between a


tribal and a non-tribal would take his/her caste from the father.


In the three decisions there are indeed observations (though by


no means forming the ratio of the decisions) that may lend


credence to such a view but the question is whether it can be


said to flow from those decisions, as an inflexible rule of


general application, that in every case of inter-caste marriage or


marriage between a tribal and a non-tribal, the offspring must


take his/her caste from the father. The clear answer, to our


mind, is in the negative. A careful examination of the three


cases together with some other decisions of this Court would


clearly show that what was said in Valsamma in a certain


context has been rather mechanically and inappropriately


extended and applied to different other fact situations as the


law laid down in Valsamma.



5. Valsamma was a Syrian Catholic woman (forward caste)


who married a Latin Catholic man (backward class) and the


question arose whether by virtue of her marriage she was


entitled to appointment to a post of lecturer that was reserved


for Latin Catholics (Backward Class Fishermen). The full bench


of the Kerala High Court held that though Valsamma was


married according to the Canon law, being a Syrian Christian by


birth, she could not by marriage with a Latin Catholic become a


member of that class nor could she claim the status of


backward class by marriage. Dealing with the consequences of


a woman marrying outside her caste the Court relied upon two


old Privy Council decisions of the nineteenth century and came


to hold that when a woman marries outside her caste, she


becomes a member of the caste of the husband's family. In


paragraph 31 of the judgment in Valsamma the Court said:



"It is well-settled law from Bhoobum Moyee Debia v. Ram

Kishore Acharj Chowdhry (1865) 10 MIA 279: 3 WR 15 that

judiciary recognized a century and a half ago that a husband

and wife are one under Hindu law, and so long as the wife

survives, she is half of the husband. She is `Sapinda' of her

husband as held in Lulloobhoy Bappoobhoy Cassidass

Moolchund v. Cassibai (1879-80) 7IA 212 . It would,

therefore, be clear that be it either under the Canon law or the

Hindu law, on marriage the wife becomes an integral part of

husband's marital home entitled to equal status of husband as

a member of the family. Therefore, the lady, on marriage,

becomes a member of the family and thereby she

becomes a member of the caste to which she moved.

The caste rigidity breaks down and would stand no

impediment to her becoming a member of the family to

which the husband belongs and she gets herself

transplanted."


(emphasis added)


6. Having said that in an inter-caste marriage the woman


takes on the caste of her husband, the Court proceeded to


consider the next question which was, "whether a lady marrying


a Scheduled Caste, Scheduled Tribe or OBC citizen, or one


transplanted by adoption or any other voluntary act, ipso facto,


becomes entitled to claim reservation under Article 15(4) or


16(4) as the case may be?" This question the Court firmly


answered in the negative and in paragraph 34 of the judgment


observed and held as follows:-



"In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu

Barde 1995 supp. (2) SCC 549 and R. Chandevarappa v.

State of Karnataka (1995) 6 SCC 309: JT (1995) 7 SC 93,

this Court had held that economic empowerment is a

fundamental right to the poor and the State is enjoined under

Articles 15(3), 46 and 39 to provide them opportunities. Thus,

education, employment and economic empowerment are some

of the programmes the State has evolved and also provided

reservation in admission into educational institutions, or in

case of other economic benefits under Articles 15(4) and 46,

or in appointment to an office or a post under the State under

Article 16(4). Therefore, when a member is transplanted

into the Dalits, Tribes and OBCs, he/she must of

necessity also have had undergone the same handicaps,

and must have been subjected to the same disabilities,

disadvantages, indignities or sufferings so as to entitle

the candidate to avail the facility of reservation. A

candidate who had the advantageous start in life being

born in Forward Caste and had march of advantageous

life but is transplanted in Backward Caste by adoption or

marriage or conversion, does not become eligible to the

benefit of reservation either under Article 15(4) or 16(4),


as the case may be. Acquisition of the status of

Scheduled Caste etc. by voluntary mobility into these

categories would play fraud on the Constitution, and

would frustrate the benign constitutional policy under

Articles 15(4) and 16(4) of the Constitution. "


(emphasis added)




7. Proceeding further, in paragraph 35 of the judgment, the


Court expressly held that acceptance by the community, a test


that was earlier applied by the Court in cases of conversion and


reconversion, would have no application to judge Valsamma's


claim to the post reserved for Latin Catholics by virtue of her


marriage in that caste.



8. The court, thus, gave two reasons for disallowing


Valsamma, the benefit of reservation under Articles 15 & 16 of


the Constitution; first, being born in a forward caste she had an


advantageous start in life and she had not gone through the


same disabilities, disadvantages, indignities or sufferings as


other members of the backward class and secondly claiming


the benefits of reservation by getting transplanted into a


backward class by means of marriage, that is to say, through


voluntary mobility would amount to a fraud on the Constitution.


9. On a careful reading of the judgment it becomes clear


that the ratio of the Valsamma decision lies in paragraph 34 of


the judgment as quoted above. What was said earlier in


paragraph 31 of the judgment was in the facts of that case and


it would be an error to take it as the ratio of the decision. More


importantly, it would be very wrong to take paragraph 31 of the


Valsamma judgment as a premise for drawing the corollary or


the deduction that the child born from an inter-caste marriage


or a marriage between a tribal and a non-tribal would invariably


take his caste from the father. But before examining Valsamma


in any greater detail it would be useful to see how it was used,


applied and "improved upon" in later decisions of the Court.



10. Valsamma was a case of reservation under Articles 15 &


16 of the Constitution. A case of reservation of seats in the


Legislative Assembly under Article 332 of the Constitution came


to be considered by a three judge bench of the Court in Sobha


Hymavathi Devi v. Setti Gangadhara Swamy & Others (2005) 2


SCC 244. The case of Sobha Hymavathi Devi, in certain


aspects on facts, is very similar to Valsamma. The election of


Sobha to the Andhra Pradesh Legislative Assembly from a


constituency reserved for Scheduled Tribes was challenged on


the ground that she belonged to a forward community, Patnaik


Sistu Karnam, and was, therefore, not qualified to contest the


election from the constituency reserved for Scheduled Tribes.


Denying the allegations of the election petitioner Sobha raised


three pleas; first, both her parents belonged to Scheduled


Tribes; secondly, in case her father was held to come from a


forward caste she was actually brought up by her mother, who


undeniably belonged to a scheduled tribe, as a member of the


tribal community and thirdly she married a Scheduled Tribe


person and, therefore, became a member of the Scheduled


Tribe. She had, therefore, the status of a Scheduled Tribe and


was qualified to contest the election from the constituency


reserved for the Scheduled Tribes. The Court examined


Sobha's first and second pleas fully in light of the factual


evidence and came to reject the two pleas on the basis of the


findings of fact. Dealing with the second plea, in paragraph 8 of


the judgment, the Court held and observed as follows:-


"Elaborating her argument, learned counsel for the appellant

contended that even though the appellant was born to Murahari

Rao, a Sistu Karnam, she was still being treated as a member of

the Bhagatha community to which her mother belonged and that

she had married a person belonging to the Bhagatha

community; that the Bhagatha community had always accepted

her as belonging to that community and in such a situation, she

must be considered to belong to the Bhagatha community, a

Scheduled Tribe and hence eligible to contest from a

constituency reserved for the Scheduled Tribes. That the

appellant had married Appala Raju, her maternal uncle

belonging to the Bhagatha community, is not in dispute. But the

claim of the appellant that she was being brought up and

was being recognised as a member belonging to the

Bhagatha community, cannot be accepted in the face of

the evidence discussed by the High Court including the

documentary evidence relied on by it. The document Ext.

10 and the entry therein marked as Ext. X-11 relating to

the appellant, show her caste as Sistu Karnam and not as

Bhagatha. This entry was at an undisputed point of time.

Moreover, the evidence also shows that she was always

being educated at Vishakhapatnam and she was never

living as a tribal in Bhimavaram village to which her

mother's family belongs. There is no reason for us to

differ from the conclusion of the High Court on this

aspect."


(emphasis added)


11. It was only then that the Court considered the third plea of


Sobha that having married a person belonging to a Scheduled


Tribe she had acquired membership of that community and


consequently she must be treated as a member of the


Scheduled Tribe. Dealing with this plea the Court referred to the


decision in Valsamma and applied it to the case of reservation


of a seat in the Legislative Assembly under Article 332 of the


Constitution. In Paragraph 10 of the judgment the Court held


and observed as follows:-


"Even otherwise, we have difficulty in accepting the position

that a non-tribal who marries a tribal could claim to contest a

seat reserved for tribals. Article 332 of the Constitution speaks

of reservation of seats for Scheduled Tribes in Legislative

Assemblies. The object is clearly to give representation in the

Legislature to Scheduled Tribe candidates, considered to be

deserving of such special protection. To permit a non-tribal

under cover of a marriage to contest such a seat would

tend to defeat the very object of such a reservation. The

decision of this Court in Valsamma Paul v. Cochin

University supports this view. Neither the fact that a non-

backward female married a backward male nor the fact

that she was recognised by the community thereafter as

a member of the backward community, was held to

enable a non-backward to claim reservation in terms of

Article 15(4) or 16(4) of the Constitution. ...Thereafter, this

Court noticed that recognition by the community was also

important. Even then, this Court categorically laid down that

the recognition of a lady as a member of a backward

community in view of her marriage would not be relevant for

the purpose of entitlement to reservation under Article 16(4) of

the Constitution for the reason that she as a member of the

forward caste, had an advantageous start in life and a

marriage with a male belonging to a backward class would not

entitle her to the facility of reservation given to a backward

community. The High Court has applied this decision to a

seat reserved in an election in terms of Article 332 of the

Constitution. We see no reason why the principle relating

to reservation under Articles 15(4) and 16(4) laid down

by this Court should not be extended to the

constitutional reservation of a seat for a Scheduled Tribe

in the House of the People or under Article 332 in the

Legislative Assembly."


(emphasis added)


12. What is of importance in Sobha Hymavathi Devi is that


the Court did not take the fact that Sobha's father was a man of


forward caste as conclusive of her caste status. The Court did


not shut out the plea raised by Sobha that she must be


considered as belonging to the scheduled tribe because her


mother who was herself a tribal brought her up as a member of


her community and raised her as a tribal even though her father


might have come from a forward caste. On the contrary the


Court examined the plea raised by Sobha in light of evidences


adduced by the parties and negated it on the basis of a pure


finding of fact. Though the Court referred to and approved


Valsamma for rejecting Sobha's plea that she had acquired the


status of a tribal by virtue of her marriage to a tribal man, it did


not take Valsamma as an authority that in a marriage between


a tribal and a non-tribal, the caste of the father would be


determinative of the caste of the child.



13. The third plea raised by Sobha in support of her being a


tribal and the claim of Valsamma were both based on their


voluntary action in marrying a tribal man. In both cases the


Court held that getting transplanted into the tribal community


through voluntary mobility cannot be the basis for the Forward


caste/non-tribal woman to avail of the benefits of reservation


under Article 15 & 16 (in Valsamma) or under Article 332 of the


Constitution (in Sobha Hymavathi Devi). But in neither of the


two cases the question of a child born of an inter-caste


marriage or a marriage between a tribal and a non-tribal was


directly in issue.



14. This question came up directly for consideration in Punit


Rai v. Dinesh Chaudhary (2003) 8 SCC 204. The election of


Dinesh Chaudhary (the respondent in the appeal before this


Court) to Bihar Legislative Assembly from a constituency


reserved for scheduled castes was challenged on the ground


that he was born to Kurmi parents and he did not belong to any


scheduled castes. The respondent did not deny that his father


Bhagwan Singh was a Kurmi and he was married to a Kurmi


woman. He, however, set up the case that Bhagwan Singh had


taken a second wife Deo Kumari Devi who was a Pasi


(scheduled caste) and he was born to Deo Kumari Devi from


Bhagwan Singh and he was, thus, fully eligible to contest from


the reserved constituency. He also relied upon a circular issued


by the State of Bihar according to which a child born to a non-


scheduled caste father and a scheduled caste mother would be


counted in the category of scheduled caste. A three-judge


bench of the Court before which the case came up for hearing


handed down two separate, though concurring, judgments, one


by Brijesh Kumar, J., speaking for himself and for V.N. Khare,


CJ, and the other by Sinha, J. It is significant to note that the


judgment by Brijesh Kumar,J. is based on the finding that the


respondent failed to establish that Bhagwan Singh had taken a


Pasi woman as the second wife and he was born to her from


Bhagwan Singh. The Court held that the fact that Bhagwan


Singh was a Kurmi and he was married to a Kurmi woman


being admitted, the election petitioner had discharged the onus


and the burden now lay upon the respondent to establish that


Bhagwan Singh had married second time and his second wife


was a Pasi who had given birth to the respondent and the


respondent had completely failed to establish that. In


paragraphs 14 and 15 of the judgment by the two judges it was


observed and held as follows:



"14. The case of the parties is clear from their pleadings and

the evidence adduced by them as indicated above. The

petitioner challenged the status of respondent Dinesh

Chaudhary as a Scheduled Caste person belonging to the SC

community. Precisely what was indicated in support of that

case is that the father of Dinesh Chaudhary and Naresh

Chaudhary is Bhagwan Singh who is Kurmi by caste married

to Jago Devi, also a Kurmi lady. The High Court has also

observed that a person born in a Kurmi family normally would

be presumed that he is Kurmi by caste. In this background

the initial burden of the petitioner would stand

discharged and it would shift upon the respondent to

prove his case which, in normal course of things, would

be and is within his special knowledge. A case which has

been set up by the respondent through his witnesses as well,

that his father had taken a fancy to Deo Kumari Devi, a

resident of Village Adai, who is Pasi by caste and married her,

who gave birth to two children including the respondent, would

normally be not in the knowledge of the people in general,

particularly when according to the case of the respondent

himself Jago Devi lived in another village and she was never

brought from there by Bhagwan Singh. More so, when

Bhagwan Singh, a Kurmi by caste, is living with his wife Jago

Devi, also a Kurmi, in their village Jehanabad. The best

evidence, as also according to the High Court to prove the

case of the respondent, was to produce Bhagwan Singh and

Deo Kumari Devi but they have been withheld after being cited

as witnesses for the respondent. These facts clearly make out

a case for drawing an adverse inference that in case they had

been produced they would not have supported the case of the

respondent. Kundan Lal Rallaram v. Custodian, Evacuee

Property AIR 1961 SC 1316, T.S. Murugesam Pillai v. M.D.

Gnana Sambandha Pandara Sannadhi AIR 1917 PC 6 and

Thiru John v. Returning Officer (1977) 3 SCC 540, may also

be referred on the point.


15. ......Apart from the above, the appellant had also

discharged his burden by proving the fact that the father of

Respondent 1 is Bhagwan Singh, a Kurmi by caste married to

Jago Devi, also a Kurmi by caste. The natural inference in


such circumstances would be that the respondent would, in

normal course of events, be a Kurmi by caste. If there is

anything contrary to the normal course of events, as pleaded

in this case, of another marriage of Bhagwan Singh in some

other village, namely, Adai with Deo Kumari Devi who never

came to live with Bhagwan Singh in his village nor Bhagwan

Singh ever lived there. Such facts in the special knowledge of

the respondent have to be proved by him alone. The

respondent was under duty to prove his case both ways,

namely, in view of the special knowledge of facts pleaded and

again in view of the fact that the appellant had discharged his

initial burden of showing that the respondent was Kurmi by

caste being the son of Bhagwan Singh, a Kurmi married to

Jago Devi, also a Kurmi. The other decision which has been

referred to on behalf of the respondent is reported in

Dolgobinda Paricha v. Nimai Charan Misra AIR 1959 SC

914. It in connection with the fact that the evidence of the

brother of Deo Kumari Devi that Bhagwan Singh had married

her, was relevant for the purposes of relationship of one

person to another since the brother of Deo Kumari Devi, is a

person who is a member of the family or otherwise has special

means of knowledge of the particular relationship. The

decision is in reference to Section 50 of the Evidence Act. It

may be observed that the evidence of persons who belong to

Village Adai including the brother of Deo Kumari Devi have

been examined by the respondent to establish the allegation of

marriage between Bhagwan Singh and Deo Kumari Devi.

Undoubtedly, the evidence of the brother of Deo Kumari Devi

would be relevant for the relationship between Bhagwan Singh

and Deo Kumari Devi but his evidence would not be of any

help, in view of the adverse inference drawn under Section

114(g) of the Evidence Act due to withholding of the best

evidence available on the point. When the persons concerned

are not coming forward to the Court to depose about the

alleged relationship and an adverse inference has been drawn

that if they had come to the Court to depose, their evidence

would have gone against the respondent, in such

circumstances, there is no occasion to act upon the statement

of DW 5, the brother of Deo Kumari Devi or other witnesses."


(emphasis added)


15. Once again it is to be seen that the judgment by the two


judges went into the facts of the case in detail and considered


the effect of the evidences led (or rather not led!) by the


respondent in support of his case. And again it was on a finding


of fact that the Court held that the respondent failed to establish


his scheduled caste status. The judgment by two judges, like


the decision in Sobha Hymavathi Devi, did not proceed on the


basis that the respondent would get his caste from his father


and his father being admittedly Kurmi the respondent could not


have a caste status other than Kurmi. The Court did not


disallow the respondent from taking the plea that he was the


child of a Pasi mother and, thus, belonged to a scheduled


caste. But in that endeavour the respondent failed on a finding


of fact.



16. It is equally important to note that the judgment by the two


judges does not rule out the possibility of the child from an


inter-caste marriage taking his/her caste status from the


mother, if such a provision was made in a circular issued by the


Government and, in paragraph 7 of the judgment, made the


following observations:-



"A person born in a Kurmi family, which details have been

provided, would normally be taken to be a Kurmi by caste. But

it is only in special circumstances, as may have been provided

under a circular of the Government of Bihar, that the caste of

the mother would be taken as the caste of the children, if she

happens to be a Scheduled Caste, married to a non-

Scheduled Caste."





17. Sinha,J., the third member on the Bench wrote a


separate, though concurring judgment. He applied the test of


acceptance by the community for rejecting the respondent's


claim that he qualified as a `Pasi' (scheduled caste). In


paragraphs 33 and 34 of the judgment Sinha,J. observed as


follows-



"33. In the instant case there is nothing on record to show

that the respondent has ever been treated to be a member of

the Scheduled Caste. In fact evidence suggests that he has

not been so treated. He as well as his brothers and other

members of his family are married to persons belonging to his

own caste i.e. "Kurmi".


34.There was no attempt on the part of the respondent herein

to bring on record any material to the effect that he was treated

as a member of the "Pasi" community. Furthermore, no

evidence has been brought on record to show that the family

of the respondent had adopted and had been practicing the

customary traits and tenets of the "Pasi" community."


Sinha, J., however, proceeded to make certain other


observations and in paragraph 27 of the judgment he said as


follows:-



"27. The caste system in India is ingrained in the Indian

mind. A person, in the absence of any statutory law,

would inherit his caste from his father and not his

mother even in a case of inter-caste marriage."


(emphasis added)





And in paragraphs 41 and 42 of the judgment as under:-



"41. Determination of caste of a person is governed by the

customary laws. A person under the customary Hindu law

would be inheriting his caste from his father. In this case,

it is not denied or disputed that the respondent's father

belonged to a "Kurmi" caste. He was, therefore, not a

member of the Scheduled Caste. The caste of the father,

therefore, will be the determinative factor in absence of

any law."





Here there is no reference to Valsamma but the connection is


obvious. It is only the next logical step to what was said in


paragraph 31 of Valsamma. If as a result of inter-caste


marriage the woman gets transplanted into the family of the


husband and takes her husband's caste it would logically follow


that the child born from the marriage can take his/her caste


only from the father. We shall presently consider the highly


illogical consequences of this logical derivation but before that


it needs to be noticed that Sinha, J. rejected the government


circular also that provided that the caste of the mother might be


taken as the caste of the child. In the same paragraph (41)


Sinha,J. observed:



" Reliance, however, has been placed upon a circular dated 3-

3-1978 said to have been issued by the State of Bihar which

is in the following terms:


"Subject: Determination of the caste of a child born from a

non-Scheduled Caste Hindu father and a Scheduled Caste

mother.


Sir,


In the aforesaid subject as per instruction I have to

state for the determination of a child born from a non-

Scheduled Caste father and a Scheduled Caste mother, upon

deliberation it has been decided that the child born from such

parents will be counted in the category of Scheduled Caste.


2. In such cases before the issue of caste

certificate there will be a legible enquiry by the Block

Development Officer, Circle Officer/Block Welfare Officer."


42. The said circular letter has not been issued by the

State in exercise of its power under Article 162 of the

Constitution of India. It is not stated therein that the decision

has been taken by the Cabinet or any authority authorized in

this behalf in terms of Article 166(3) of the Constitution of

India. It is trite that a circular letter being an administrative

instruction is not a law within the meaning of Article 13 of the


Constitution of India. (See Dwarka Nath Tewari v. State of

Bihar AIR 1959 SC 249)."





(emphasis added)





18. He, thus, rejected the circular issued by the State of Bihar


as invalid and of no consequence. However, the judgment by


the two judges, as seen above expressly acknowledged that in


special circumstances, as may be provided in the Government


Circular, the caste of the mother may be taken as the caste of


the children. Therefore, the view taken by Sinha J. on the


circular is clearly at variance with the judgment of the two


Judges on that issue. On the question of the child inheriting the


caste of the mother the judgment by the two judges is silent as


the question did not arise for consideration in view of the


finding of fact that the respondent's father, a kurmi, had not


married the pasi woman. It is, therefore, difficult to clothe the


observation by Sinha J. on this point with precedent value,


especially in view of the fact that the question did not arise at all


after the decision of the majority of two judges. Seervai in his


Constitutional Law of India, Fourth Edition, pages 2669-2673


esp. Para 25.102 explains that a `decision' refers to the


determination of each question of law which arose and was


decided in that case. In Punit Rai's case, the question did not


arise at all, and moreover, there was no majority concurrence


on the question that a child inherits his caste from the father.


Thus, the concurring judgment of Sinha J. must be interpreted


by reference to Paragraphs 33, 34 and 47 of the judgment,


where the learned Judge concurs with the majority on the


question of fact. The other observations in the concurring


judgment cannot be said to constitute binding precedent.



19. The question of the status of a child born to a scheduled


tribe mother from a forward caste father again came up before


the Court in Anjan Kumar v. Union of India and others, (2006) 3


SCC 257. Anjan Kumar, was the son of a scheduled tribe


mother and a Kayastha (forward caste) father. The question


was whether he could be considered to belong to the


scheduled tribe. On the facts of the case, the Court found that


though the mother of the child indeed belonged to a scheduled


tribe, the child was brought up in the environment of forward


caste community and he did not suffer any social disabilities or


backwardness. In paragraph 6 and 7 of the judgment the Court


observed as follows:-



"6.Undisputedly, the marriage of the appellant's mother (tribal

woman) to one Lakshmi Kant Sahay (Kayastha) was a court

marriage performed outside the village. Ordinarily, the court

marriage is performed when either of the parents of bride or

bridegroom or the community of the village objects to such

marriage. In such a situation, the bride or the bridegroom

suffers the wrath of the community of the village and runs the

risk of being ostracised or excommunicated from the village

community. Therefore, there is no question of such marriage

being accepted by the village community. The situation will,

however, stand on different footing in a case where a tribal

man marries a non-tribal woman (forward class) then the

offshoots of such wedlock would obviously attain the tribal

status. However, the woman (if she belongs to a Forward

Class) cannot automatically attain the status of tribal unless

she has been accepted by the community as one of them,

observed all rituals, customs and traditions which have been

practiced by the tribals from time immemorial and accepted by

the community of the village as a member of tribal society for

the purpose of social relations with the village community.

Such acceptance must be by the village community by a

resolution and such resolution must be entered in the Village

Register kept for the purpose. Often than not, such

acceptance is preceded by feast/rituals performed by the

parties where the elders of the village community participated.

However, acceptance of the marriage by the community itself

would not entitle the woman (forward class) to claim the

appointment to the post reserved for the reserved category. It

would be incongruous to suggest that the tribal woman, who

suffered disabilities, would be able to compete with the woman

(forward class) who does not suffer disabilities wherefrom she

belongs but by reason of marriage to tribal husband and such

marriage is accepted by the community would entitle her for

appointment to the post reserved for the Scheduled Castes

and Scheduled Tribes. It would be a negation of constitutional

goal.


7. It is not disputed that the couple performed court

marriage outside the village; settled down in Gaya and their

son, the appellant also born and brought up in the

environment of forward community did not suffer any disability

from the society to which he belonged. Mr. Krishnamani,

learned Senior Counsel contended that the appellant used to

visit the village during recess/holidays and there was cordial

relationship between the appellant and the village community,

which would amount to the acceptance of the appellant by the

village community. By no stretch of imagination, a casual visit

to the relative in other village would provide the status of

permanent resident of the village or acceptance by the village

community as a member of the tribal community."





20. The Court in paragraph 6 of the judgment, as quoted


above, applied the test of acceptance in the community in


which the woman gets married. But more importantly in


paragraph 7 of the judgment went into the specifics of the case


on the question of upbringing of the appellant Anjan Kumar and


recorded a finding of fact that he was "brought up in the


environment of forward community (and) did not suffer from any


disability from the society to which he belonged". Having arrived


at the aforesaid finding of fact the Court proceeded to refer to


several decisions, including Valsamma and the judgment of


Sinha, J. in Punit Rai (in particular paragraph 27 of the


judgment) and in paragraph 14 came to observe and hold as


follows:-



"14. In view of the catena of decisions of this Court, the

questions raised before us are no more res integra. The

condition precedent for granting tribe certificate being that one

must suffer disabilities wherefrom one belongs. The

offshoots of the wedlock of a tribal woman married to a

non-tribal husband - Forward Class (Kayastha in the

present case) cannot claim Scheduled Tribe status. The

reason being such offshoot was brought up in the

atmosphere of Forward Class and he is not subjected to

any disability. A person not belonging to the Scheduled

Castes or Scheduled Tribes claiming himself to be a member

of such caste by procuring a bogus caste certificate is a fraud

under the Constitution of India. The impact of procuring

fake/bogus caste certificate and obtaining

appointment/admission from the reserved quota will have far-

reaching grave consequences. A meritorious reserved

candidate may be deprived of reserved category for whom the

post is reserved. The reserved post will go into the hands of

non-deserving candidate and in such cases it would be

violative of the mandate of Articles 14 and 21 of the

Constitution."


(emphasis added)





21. Here the Court said that, "the offshoot of the wedlock of a


tribal woman married to a non-tribal husband - Forward Class


(Kayestha in the present case) cannot claim Scheduled Tribe


status". But it was not on the reasoning of Valsamma that in an


inter-caste marriage or in a marriage between a tribal and a


non-tribal the woman gets transplanted into the community of


the husband and gets her caste from the husband (paragraph


31 of the judgment) or the reasoning in Sinha J's judgment that


in the absence of any statutory law a person would inherit his


caste from his father and not his mother even in a case of inter-


caste marriage". Here the reasoning is that, "..such offshoot


was brought up in the atmosphere of Forward Class and he is


not subjected to any disability. That is exactly the reasoning of


Valsamma in paragraph 34 of the judgment and that as noted


above is the true ratio of the decision in Valsamma.



22. It is, thus, clear that it is wrong and incorrect to read


Valsamma, Punit Rai and Anjan Kumar as laying down the rule


that in an inter-caste marriage or a marriage between a tribal


and a non-tribal, the child must always be deemed to take


his/her caste from the father regardless of the attending facts


and circumstances of each case. Now, we propose to consider


why the observation in Valsamma to the effect that an inter-


caste marriage or a marriage between a tribal and a non-tribal


the woman becomes a member of the family of her husband


and takes her husband's caste (Paragraph 31 of the judgment)


is not the ratio of that decision and more importantly what


inequitable and anomalous results would follow if that


proposition is taken to its next step to hold that the offspring of


such a marriage would in all cases take the caste from the


father.



23. For the proposition that on marriage the woman takes


the caste of her husband Valsamma relied on two nineteenth


century Privy Council decisions, one in Bhoobum Moyee Debia


v. Ram Kishore Acharj Chowdhry, (1865) 10 MIA 279 and the


other in Lulloobhoy Bappoobhoy Cassidass Moolchund v.


Cassibai, (1879-80) 7IA 212. In Bhoobum Moyee Debia the


respondent Chandrabullee Debia after the death of her son,


who left behind an issueless widow (the appellant, Bhoobum


Moyee Debia), in order to devest the widowed daughter-in-law,


made an adoption on the strength of a deed of permission of


adoption that was executed in her favour by her deceased


husband (Gaur Kishore Acharj Chaudhary). The adopted son


filed a suit claiming the entire estate of Gaur Kishore Acharj


Chaudhary, trying to defeat the claim of the appellant and


devest her of the estate. He succeeded before the Sudder


Dewanny Adawlut of Calcutta. But in appeal the Privy Council


held that under the Hindu Law an adopted son takes by


inheritance and not by device and as by that law in the case of


inheritance, the person to succeed must be the heir of the full


owner. In the facts of the case, the deceased son of Gaur


Kishore Acharj Chaudhary and Chandrabullee Debia who was


the husband of the appellant was the last full owner and at his


death his wife, the appellant, succeeded as his heir to her


widow's estate. Consequently, the adoption by Chandrabullee


Debia was void as the power was incapable of execution. After


reaching this conclusion the Privy Council further noted that an


additional difficulty in holding the estate of the widow to be


devested "may perhaps be found in the doctrine of Hindoo Law,


that the husband and wife are one and that as long as the wife


survives, one half of the husband survives; but it is not


necessary to press this objection".


24. The second decision of the Privy Council in Lulloobhoy


Bappoobhoy Cassidass Moolchund, raised the question


whether the widow of a paternal first cousin of the deceased


became - by her marriage - a Gotraja-sapinda of the


deceased, and whether she was, therefore, entitled to succeed


to the estate in preference to male gotraja-sapindas who were


more distant heirs. The Privy Council, based on an


interpretation of the Mitakshara law as it prevailed in Bombay at


that time, affirmed the widow's right of inheritance. The Privy


Council observed, "It is not disputed that on her marriage the


wife enters the gotra of her husband, and it can scarcely be


doubted that in some sense she becomes a sapinda of his


family. It is not necessary to cite authorities on this point......


Whether the right to inherit follows as a consequence of this


sapinda relationship is the question to be considered?" The


Privy Council cited a passage from the Achara Kanda of the


Mitakshara which suggested that sapinda relationship


depended on having the particles of the body of some ancestor


in common. However, "the wife and the husband are sapinda


relations to each other, because they together beget one body


(the son)". It was further observed; "If then, as already pointed


out, the wife upon her marriage enters the gotra of her husband


and, thus, becomes constructively in consanguinity or


relationship with him, and through him, with his family, there


would appear to be nothing incongruous in her being allowed to


inherit as a member of that family under a scheme of


inheritance which did not adopt the principle of the general


incapacity of women to inherit. But, though it may be consisted


with this theory of sapinda relationship to admit the widow so to


inherit, the existence of the right has still to be established."



25. In the first of the two Privy Council decisions, the issue of


sapinda relationship did not really arise and the case was


decided on an altogether different basis. In the second


decision, it is only observed that the wife enters the gotra of the


husband. There may be many gotras within a certain caste, and


it is unclear if this doctrine of Hindu Customary law can be


applied in the post-Constitution era to determine the caste of a


child from an inter-caste marriage or a marriage between a


tribal and non-tribal.


26. Without any disrespect, it seems a matter of grim irony


that two nineteenth century decisions of the Privy Council that


were rendered in their time to advance and safeguard the


interests of Hindu widows should be relied upon and used for


complete effacement of the caste and the past life of a woman


as a result of her marrying into a different caste. The Privy


Council decisions were rendered about a century and a quarter


ago in cases of inheritance, in a completely different social and


historical milieu, when cases of inter-caste marriage would be


coming to the court quite rarely. We are not quite sure of the


propriety or desirability of using those decisions in a totally


different context in the post-Constitutional, independent India


where there is such great consciousness and so much effort is


being made for the empowerment of women and when


instances of inter-caste marriage are ever on the increase. It


also needs to be considered how far it would be proper to


invoke the customary Hindu law to alter the caste status of a


woman in an inter-caste marriage or a marriage between a


tribal and non-tribal and to assign to the woman the caste of


her husband when such a marriage may itself be in complete


breach of the Hindu customary law.



27. We may also recall that Valsamma Paul was a case


where a Syrian Catholic woman (forward caste) had married a


Latin Catholic man (backward class). The parties were


Christians but the Court applied the Hindu Customary law


observing, "It would, therefore, be clear that be it either under


the Canon law or the Hindu law, on marriage the wife becomes


an integral part of husband's marital home entitled to equal


status of husband as a member of the family. The Court, thus,


put the Canon law at par with the Hindu Customary law. Now,


surely the same reasoning cannot apply if a Muslim of a


forward caste marries a Muslim tribal e.g. a Lakshdweep Gaddi


or a Bakriwal from Jammu and Kashmir. One wonders whether


in those cases too the woman can be said to take the caste of


her husband applying the reasoning of Valsamma.



28. Further, whether and to what extent the Hindu Customary


law would govern members of scheduled tribes (as opposed to


scheduled castes) would depend on the extent to which the


given tribe was hinduised prior to the adoption of the


Constitution of India.



29. The view expressed in Valsamma that in inter-caste


marriage or in a marriage between a tribal and a non-tribal the


woman gets transplanted into the family of her husband and


takes her husband's caste is clearly not in accord with the view


expressed by the Constitution Bench of the Court in V.V. Giri v.


Dippala Suri Dora and others, (1960) 1 SCR 426 that it is well


nigh impossible to break or even to relax the inflexible and


exclusive character of the caste system. In V.V. Giri the election


of the returned candidate was challenged on the ground that he


had ceased to be a member of the Scheduled Tribe and had


become a Kashtriya. In support of the allegation evidences


were led that from 1928 onwards he had described himself and


the members of his family as belonging to the Kashtriya caste.


Oral evidence was led to show that he had for some years past


adopted the customs and rituals of the Kashtriya caste and


marriages in his family were celebrated as they would be


among the Kashtriya and homa was performed on such


occasions. It was also shown that his family was connected by


marriage ties with some Kashtriya families, that a Brahmin


priest officiated at the religious ceremonies performed by him


and he wore the sacred thread.



30. Rejecting the contention of the election petitioner


Gajendragadkar J. (as his Lordship then was) speaking for


himself and three other Honourable Judges on the Bench


observed in Paragraph 25 of the judgment as follows:


"In dealing with this contention it would be essential to bear in

mind the broad and recognized features of the hierarchical social

structure prevailing amongst the Hindus. It is not necessary for

our present purpose to trace the origin and growth of the caste

system amongst the Hindus. It would be enough to state that

whatever may have been the origin of Hindu castes and tribes in

ancient times, gradually castes came to be based on birth

alone. It is well known that a person who belongs by birth to

a depressed caste or tribe would find it very difficult, if not

impossible, to attain the status of a higher caste amongst

the Hindus by virtue of his volition, education, culture and

status. The history of social reform for the last century and

more has shown how difficult it is to break or even to relax

the rigour of the inflexible and exclusive character of the

c
aste system 1 . It is to be hoped that this position will change,

and in course of time the cherished ideal of casteless society truly

based on social equality will be attained under the powerful

impact of the doctrine of social justice and equality proclaimed by

the Constitution and sought to be implemented by the relevant

statutes and as a result of the spread of secular education and

the growth of a rational outlook and of proper sense of social



1 In Valsamma (para 31) a bench of two judges, using similar words said just the opposite: "The caste

rigidity breaks down and would stand no impediment to her becoming a member of the family to which the

husband belongs".


values; but at present it would be unrealistic and utopian to ignore

the difficulties which a member of the depressed tribe or caste

has to face in claiming a higher status amongst his co-

religionists."







31. The observation made by Gajendragadkar J. half a century


ago was tellingly shown to be true in Rajendra Shrivastava vs.


State of Maharashtra, (2010) 112 BomLR 762, a case that came


before the Full Bench of the Bombay High Court. In Rajendra


Shrivastava a Scheduled Caste woman, who had married a


man from an upper caste, accused her husband and his family


members of subjecting her to cruelty and abusing her in the


name of her caste. A case was accordingly instituted against


the accused, including the husband, under Sections 498A, 406,


494, 34 of the Indian Penal Code read with the provisions of


Section 3(1)(ii) and Section 3(1)(x) of the Scheduled Castes


and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. In


the anticipatory bail application filed on behalf of the husband it


was contended that on getting married with him the


complainant had assumed his caste and lost her identity as a


Scheduled Caste person. She could, therefore, make no


complaint under the provisions of the SC/ST (Prevention of


Atrocities) Act. It goes without saying that in support of the


contention raised on behalf of the husband strong reliance was


placed upon the observations made in Valsamma in Paragraph


31 of the judgment.



32. The full bench before which the matter came up for


consideration on reference framed the following issue as arising


for consideration:


"If a woman who by birth belongs to a scheduled caste or a

scheduled tribe marries to a man belonging to a forward caste,

whether on marriage she ceases to belong to the scheduled caste

or the scheduled tribe?"





33. The full bench of the Bombay High Court examined


Valsamma in light of two Constitutional Bench decisions of this


Court, namely, Indra Sawhney v. Union of India, 1992 supp (3)


SCC 217 and V.V. Giri v. D. Suri Dora, (supra). The full bench


also considered the law of precedent and referred to the


decision of this Court in State of A.P. v. M. Radha Krishna


Murthy, (2009) 5 SCC 117. It finally came to hold that the


observations made in Paragraph 31 of the decision in


Valsamma cannot be read as the ratio laying down that on


marriage, a wife is automatically transplanted into the caste of


her husband. In Paragraph 12 of the judgment it held as


follows:-


"When a woman born in a scheduled caste or a scheduled tribe

marries to a person belonging to a forward caste, her caste by

birth does not change by virtue of the marriage. A person born as

a member of a scheduled caste or a scheduled tribe has to suffer

from disadvantages, disabilities and indignities only by virtue of

belonging to the particular caste which he or she acquires

involuntarily on birth. The suffering of such a person by virtue of

caste is not wiped out by a marriage with the person belonging to

a forward caste. The label attached to a person born into a

scheduled caste or a scheduled tribe continues notwithstanding

the marriage. No material has been placed before us by the

applicant so as to point out that the caste of a person can be

changed either by custom, usage, religious sanction or provision

of law."


34. We fully endorse the view taken by the Bombay High Court


and we feel that in the facts of the case that was the only


correct view.



35. In light of the discussion made above it is clear that the


view expressed in Paragraph 31 of the Valsamma judgment


that in an inter-caste marriage or a marriage between a tribal


and a non-tribal the woman must in all cases take her caste


from the husband, as a rule of Constitutional Law is a


proposition, the correctness of which is not free from doubt. And


in any case it is not the ratio of the Valsamma decision and


does not make a binding precedent.



36. It is also clear to us that taking it to the next logical step


and to hold that the off-spring of such a marriage would in all


cases get his/her caste from the father is bound to give rise to


serious problems. Take for instance the case of a tribal woman


getting married to a forward caste man and who is widowed or


is abandoned by the husband shortly after marriage. She goes


back to her people and the community carrying with her an


infant or may be a child still in the womb. The child is born in


the community from where her mother came and to which she


went back and is brought up as the member of that community


suffering all the deprivations, humiliations, disabilities and


handicaps as a member of the community. Can it still be said


that the child would have the caste of his father and, therefore,


not entitled to any benefits, privileges or protections sanctioned


by the Constitution.



37. Let us now examine how the issue has been dealt with by


some of the High Courts.


38. A full bench decision of the Kerala High Court in Indira v.


State of Kerala, AIR 2006 Ker. 1, is a case in point.



39. The Government of Kerala had issued G.O. (Ms) No. 298


dated 23/6/1961 stating that children born of inter-caste


marriages would be allowed all educational concessions if


either of the parents belonged to scheduled caste/scheduled


tribe. Later, on a query made by the Kerala Public Service


Commission, the Government clarified vide a G.O. (Ms) dated


25/1/1977 that the Government Order dated 23/6/1961 could be


adopted for determining the caste of the children born of such


inter-caste marriage for all purposes. Resultantly, such children


were treated as belonging to scheduled caste or scheduled


tribe if either of their parents belonged to SC/ST. After the


decision of this Court in Punit Rai (supra) and in light of the


separate though concurring judgment of Sinha J. the State of


Kerala cancelled the earlier G.O. (Ms) dated 23/6/1961 and its


clarification dated 25/1/1977 and replaced it by another order


G.O. (Ms) No. 11/2005/SCSTDD dated 20/6/2005 directing that


the competent authorities would issue Scheduled


Caste/Scheduled Tribe community certificates to the children


born from inter-caste marriage only as per the caste/community


of his/her father subject to the conditions of acceptance,


customary traits and tenets as stipulated in the judgments of the


Supreme Court. The validity of the Government Order dated


20/6/2005 came up for consideration before the full bench of


the Kerala High Court. The High Court considered the decisions


of this Court in a number of cases including Valsamma, Sobha


Hymavathi Devi and Punit Rai and in Paragraph 21 of the


judgment came to hold as follows:


"The Government, vide order G.O. (Ms) No. 25/2005/SCSTDD

dated 20/6/2005 directed the competent authority to issue SC/ST

community certificates to the children born out of intercaste

married couples as per the caste/community of the father subject

to the conditions of acceptance, customary traits and tenets

stipulated in Punit Rai's case and Sobha Hymavathi Devi's case.

The above government order would also be applicable to

the children born out of intercaste married couple if the

mother belongs to SC/ST community. Subject to the above

direction, rest of the directions contained in G.O. (Ms) No. 11/05/

and G.O. (Ms) No. 25/2005 would stand."





40. We are in agreement with the view taken by the Kerala


High Court.


41. A division bench of the Delhi High Court in Kendriya


Vidyalaya Sangathan v. Shanti Acharya Sisingi, 176(2011) DLT


341, after considering a number of decisions of this Court


summed up the legal position as to the offspring of an inter-


caste marriage or a marriage between a tribal and a non-tribal


in clauses 3 and 4 under Paragraph 30 of the judgment as


follows:


"III The offshoot of wedlock between Scheduled Caste/Scheduled

Tribe male and a female belonging to forward community can

claim Scheduled Caste/Scheduled Tribe status for Indian society

is patriarchal society where the child acquires the caste of his

father.


IV The offshoot of wedlock between Scheduled Caste/Scheduled

Tribe female and a male belonging to forward community cannot

claim Scheduled Caste/Scheduled Tribe status unless he

demonstrates that she has suffered the disabilities suffered by

the members of the community of his mother."





42. In Arabinda Kumar Saha v. State of Assam, 2001 (3) GLT


45 a division bench of the Gauhati High Court had a case


before it in which a person whose father belonged to the upper


caste and mother to a scheduled caste claimed scheduled


caste status. The court found and held that though the father of


the writ petitioner was admittedly a forward caste man he was


brought up as a member of the scheduled caste. This was


evident from the fact that the writ petitioner had not only been


the office holder of Anushchit Jati Karamchari Parishad but the


scheduled caste community treated the appellant as belonging


to scheduled caste and even the non-scheduled caste people


treated him as scheduled caste, in as much as in his college


career and in his service career he was treated as a person


belonging to a scheduled caste.



43. In view of the analysis of the earlier decisions and the


discussion made above, the legal position that seems to


emerge is that in an inter-caste marriage or a marriage between


a tribal and a non-tribal the determination of the caste of the


offspring is essentially a question of fact to be decided on the


basis of the facts adduced in each case. The determination of


caste of a person born of an inter-caste marriage or a marriage


between a tribal and a non-tribal cannot be determined in


complete disregard of attending facts of the case. In an inter-


caste marriage or a marriage between a tribal and a non-tribal


there may be a presumption that the child has the caste of the


father. This presumption may be stronger in the case where in


the inter-caste marriage or a marriage between a tribal and a


non-tribal the husband belongs to a forward caste. But by no


means the presumption is conclusive or irrebuttable and it is


open to the child of such marriage to lead evidence to show


that he/she was brought up by the mother who belonged to the


scheduled caste/scheduled tribe. By virtue of being the son of a


forward caste father he did not have any advantageous start in


life but on the contrary suffered the deprivations, indignities,


humilities and handicaps like any other member of the


community to which his/her mother belonged. Additionally, that


he was always treated a member of the community to which her


mother belonged not only by that community but by people


outside the community as well.



44. In the case in hand the tribal certificate has been taken


away from the appellant without adverting to any evidences and


on the sole ground that he was the son of a Kshatriya father.


The orders passed by the High Court and the Scrutiny


Committee, therefore, cannot be sustained. The orders passed


by the High Court and the Scrutiny Committee are, accordingly,


set aside and the case is remitted to the Scrutiny Committee to


take a fresh decision on the basis of the evidences that might


be led by the two sides. It is made absolutely clear that this


Court is not expressing any opinion on the merits of the case of


the appellant or the private contesting respondent.



45. Before parting with the records of the case, we would


like to put on record our appreciation for the assistance that we


got from Mr. Sanjay R. Hegde counsel appearing for the


appellant and Mr. Sanjeev Kumar counsel appearing for


respondent No. 6. The assistance we received from the amicus


curiae, Mr. Aman Ahluwalia was especially invaluable.



46. In the result, the appeal is allowed but in the facts of the


case there will be no order as to costs.







.................................................. ...J

(Aftab Alam)




....................................................J

(Ranjana Prakash Desai)

New Delhi;

January 18, 2012

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