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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