Case: N.E. Horo Vs. Jahanara Jaipal Singh

1. This is an appeal from a Judgment of the Patna High Court holding that the nomination papers of the respondent Smt. Jahan Ara Jaipal Singh had been illegally rejected by the Returning Officer. For that reason the election of the returned candidate Shri N. E. Horo from the 51 Khunti Parliamentary (Scheduled Tribe) Constituency in the State of Bihar was set aside.2. On May 1, 1970 the Election Commission of India issued a notification calling upon the above-named Parliamentary Constituency to elect a Member to the Lok Sabha in the vacancy caused by the death of late Shri Jaipal Singh. The last date for filing the nomination papers was May 8, 1970. The date for scrutiny was May 9 1970. Several persons filed nomination papers including Theodore Bodra and others. Two nomination papers were filed on behalf of the respondent who was a Congress (Ruling) candidate for the aforesaid by-election According to the respondent she was the widow of late Shri Jaipal Singh and was a member of the Munda Scheduled Tribe in the State of Bihar. She filed certain certificates to that effect. Bodra filed an objection petition to the nomination papers of the respondent. The Returning Officer, after hearing arguments, passed an order rejecting the nomination papers of the respondent. The nomination papers of a all the other candidates were accepted, After the polling took place the result of the election was announced on June 3, 1970 and the appellant Shri Horo was declared elected to the Lok Sabha. On July 8, 1970 the respondent filed an election petition.3. In the election petition it was stated inter alia that the petitioner (who is now respondent before us) was the widow of late Shri Jaipal Singh and belonged to the Munda Scheduled Tribe although she was a Christian by religion. It was averred in Paragraph 3 of the petition that according to the Munda Customary Law when a Munda male married outside the Munda Tribe if his marriage is accepted by the Tribe he continues to be a member of that Tribe and his wife also acquires its membership. It was pleaded that the wife being a member of her husbands family had the right of succession to her husbands property as well. In Para 4 of the petition it was stated that the petitioner was a Tamil by birth. She married late Shri Jaipal Singh in the year1954 according to the rites and rituals of Mundas in the presence of Parha Raja, Parha Munda., Parha Pahan, relatives of the deceased and the members of the Tribe at Morabadi a Mohalla of Ranchi. In Paragraph 5 the ceremonies which were performed according to Munda Custom were mentioned. These ceremonies inter alia were the washing of the wifes feet by the elder sister of the husband and the holding of the feast of the male goat meat the drinks of Handia etc. A new name was given by her mother-in-law to the petitioner, that name being Lankashri. All these functions were witnessed by Parha Raja, Parha Munda, Parha Pahan and other members of the Tribe. In Paragraph 6 more details were given of the various other ceremonies also which were performed in connection with the marriage. After referring to the relevant provisions of the Representation of the People Act 1951, hereinafter called the Act, it was stated that the Returning Officer had illegally allowed irrelevant personal aspersions to be cast against the petitioner by her opponents. It was alleged that the Returning Officer had been influenced by Bodra who was the Chairman of the Bihar Legislative Council. The decision of the Returning Officer that the status of a Munda could be acquired only by birth and not by marriage and that the petitioner did not belong to the Munda Scheduled Tribe was challenged principally on the ground that the returning Officer had not considered the custom by which if a Munda male marries a woman not belonging to Munda Tribe and that if accepted by the Tribe the wife acquires the membership thereof.4. In his written statement the returned candidate Shri Horo maintained that even though the election petitioner might be living as wife of late Shri Jaipal Singh she was never married in accordance with the custom of the Munda Tribe prevalent in Chhota Nagpur. It was denied that she was ever accepted as a member of the Munda community as no such custom is prevalent in that community. It was denied that the ceremonies and rituals mentioned in the election petition had been performed in respect of the marriage of the election petitioner with the late Shri Jaipal Singh. In Paragraph 25 of the written statement it was asserted that non-Munda merely be virtue of the marriage with a Munda could not ipsofacto became a Munda. If a person was not born of a father belonging to a Scheduled Tribe he or she could not legally claim to be a member of the said Tribe. It was asserted that since the election petitioner was not the daughter of a member of the Munda Tribe she could not claim to be a member of that Scheduled Tribe, The allegations of mala fides made against the Returning Officer were described as baseless and extraneous.5. During the pendency of the election petition the Lok Sabha was dissolved on December 27, 1970. A petition was filed before the High Court on behalf of Shri Horo that the election petition should be dismissed as having become infructuous. The Court made an order or January 14, 1971 holding that the election petition could not be dismissed on that ground.

Court's reasoning:
7. It may be mentioned that so far as issue No. 1 was concerned the objection taken was that the election petition was defective on account of the non-joinder of necessary parties. When the election petition was filed only Shri Horo the returned candidate was impleaded but subsequently a petition was filed on behalf of the election petitioner making a prayer that the other contesting candidates were also necessary parties and should be impleaded. The Court directed that they be added as parties. Shri Bodra who was one of the contesting parties was consequently impleaded as a party. Later on it was prayed on behalf of the petitioner that on a further consideration it was found that the persons who had been subsequently added were not necessary parties and their names might be deleted. Bodras name was therefore deleted. The argument raised before the High Court was that Bodra being a necessary party to the petition under Clause (b) of Section 82 of the Act the petition became defective as soon as his name was struck off at the instance of the election petitioner. The High Court was of the view that although in Paragraph 21 of the election petition an allegation had been made that Bodra had influenced the Returning Officer no evidence was led on that point and the case of the election petitioner was based solely on the ground that the nomination paper had been illegally and improperly rejected. No relief had been sought on the ground that undue influence had been exercised on the Returning Officer by Bodra. The High Court was also of the view that the allegation made in the election petition that Bodra had exercised his influence in getting the nomination paper of the election petitioner rejected did not fall within the ambit and scope of sub-section (7) of Section 123 of the Act. The contention that the petition was not maintainable was consequently rejected.On the main issues, namely (2) and (3) it was expressly stated in the judgment that the factum of the marriage of the election petitioner with the late Shri Jaipal Singh had not been disputed. The real controversy between the parties in the High Court centered round the point whether the marriage was in such form that the wife acquired the membership of the Tribe. According to the arguments on behalf of Shri Horo as the election petitioner was not a Munda she could not belong to the Munda Tribe and that by marriage such a status could never be acquired. The High Court examined the evidence relating to the question whether the marriage of the election petitioner with late Shri Jaipal Singh had been performed in accordance with the Munda custom and was in such form that she was accepted and treated as a member of the Munda Tribe. The Court also considered the various authoritative books and other works relating to the Mundas and came to the conclusion that on a survey of the entire evidence and the circumstances there was no reason to discredit the evidence which had been led on behalf of the petitioner that she was married according to the Munda custom and that it was with the approval and sanction of the Tribe that she had been accepted as a member of the Munda tribe.As regards the first point it was never canvassed or argued before the High Court. No plea was taken by Shri Horo in the written statement that there could be no valid marriage between the respondent and late Shri Jaipal Singh owing to the provisions contained in S. 57 of the Indian Divorce Act 1869 until after the lapse of a period of six months from the date the decree of divorce was made absolute. None of the issues which were framed by the High Court involves the question now sought to be agitated based on the provisions of S. 57 of the Indian Divorce Act. It appears that advantage is sought to be taken from the statement of the respondent about the dates when the decree absolute was granted and when the marriage took place between the respondent and late Shri Jaipal Singh. In the absence of any pleadings or issues no material has been placed on the record to show that in view of the provisions of S. 57 of the aforesaid Act there could not be a valid marriage according to the Munda customary law. It must be remembered that the respondent contracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and not as one Christian marrying another Christian. Nor was the matter pursued in cross-examination of the respondent and she was not asked as to how she could get over the bar of S. 57 in the way of remarriage before the expiry of the prescribed period. In these circumstances we do no consider that such a point can be allowed to be agitated for the first time before thisto him the definition that is found in the current literature on the subject is given in the Imperial Gazetteer which is "A tribe is a collection of families bearing a common name, speaking a common dialect, occupying or professing to occupy a common territory and is not usually endogamous though originally it might have been so". "Endogamy is an essential feature of the tribe though inter-tribal marriages are breaking the limits of endogamy. It is further of the blood bond or the kinship group is forced to the background, the communal economy of the clan is superseded by individual desire for gain and property, money assumes an importance it seldom had before, and the ties of reciprocity and mutuality of obligation are reoriented to suit new conditions. Tribal customs and practices which established social life lose their value and the choice of leader and of mate is guided by different considerations". The Munda tribe cannot be said to be immune from the above process of change in their social organisation. Changes in their belief, customs, tradition and practices have taken place under the influence of Hinduism, and Christianity, and on account of the impact of Western education, urbanisation, industrialisation and improved means of communication. The sense of individualism and lack of love for the traditional code of conduct and social taboos are stated to be apparent among the emerging urban-industrial oriented adivasi communities.Our attention has been drawn by Mr. Anthony to certain decisions for the proposition that in a tribe which is endogamous birth alone can confer the status of membership of the tribal community. In V. V. Giri v. D. Suri, 21 ELR 188 = (AIR 1959 SC 1318  ), one of the questions raised was whether respondent No. 1 in that case had ceased to be a member of the Scheduled Tribe at the material time because he had become a Kshatriya. This Court observed that it was essential to bear in mind the broad and recognised features of the hierarchical social structure prevalent amongst the Hindus. It was considered enough to state that whatever might have been the origin of the Hindu castes and tribes in ancient times, gradually status came to be based on birth alone. It was pointed out that a person who belonged 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. We are unable to see how this case can be of any assistance in deciding the matter before us, namely, whether a non-Munda can by marriage be recognised as a member of the Munda tribe in certain circumstances.19. The High Court, after discussing the evidence and referring to other authoritative books like "Tribes and Castes of Bengal" by H. H. Risley and "Encyclopaedia Mundarica" by Rev. John Hoffman as also the statement in Encyclopaedia Britannica, Vol. 15. And the Encyclopaedia of Religion and Ethics by James Hastings, Vol. IX, apart from the work of J. Reid, I.C.S., on Chhota Nagpur Tenancy Act, observed that although originally very severe restrictions were imposed amongst the Mundas as far as marriage in their own Kili or sect was concerned, the process of Munda assimilation to the larger Indian society facilitated by improved communications and the introduction of formal system of deduction was being accellerated under the independent Government of India. In Encyclopaedia Britannica. Vol. 15 in the Chapter relating to Mundas it is also mentioned. "The Munda speaking people, with the other Indian tribal groups, are being encouraged to adopt new customs and to be come fully participating members of Indian society". (page 991). Similarly in the Encyclopaedia of Religion and ethics by James Hastings, Vol. IX, it has been stated as to how Munda customs are being changed with the impact of the influence of Christianity. Referring to the Chapter in Reids book it has been noticed by the High Court that according to the Munda conception a wife becomes a member of the Kili of her husband by legal fiction. The High Court further relied on the decision in Wilson Read v. C. S. Booth, AIR 1958 SC 128 in which it was held that the question whether a person can be regarded as a member of the Khasi tribe was a question of fact depending upon the evidence produced in the case. It was said that the whole object of reserving a seat for a particular tribe was to afford the community, as a whole, a right of representation and therefore the question of the membership of a particular individual of that community could not be considered divorced from the very object of legislation. Thus the conduct of the community which had been given the right of special representation, the manner and how the community regarded a particular individual and whether the community as a whole intended to take the individual within its fold were all matters which would be relevant for consideration of the question whether a particular person could be regarded as a member of the Schedule Tribe. The High Court was alive to the fact - and this point of distinction has been greatly emphasised by Mr. Anthony - that in that case the appellant claimed to be a Khasi, his father being a European and his mother a member of the Khasi tribe. Even though the facts were different, the approach in such matters which commended itself to the Assam High Court can hardly be regarded as unsound.20. It appears to us, on a full consideration of the entire material, that the following matters stand established in the presentThe Mundas are endogamous and inter-marriage with non-Mundas is normally prohibited.(2) That a Munda mala along with his family on marrying a non-Munda girl is often ex-communicated or out casted.(3) That the rule of endogamy is not so rigid that a Munda cannot marry a non Munda after performing special ceremonies.(4) That such marriages have been and are being sanctioned by the Parha Panchayat.(5) That where a Munda male and his family are outcasted for marrying a non-Munday they are admitted to the tribe after certain special ceremonies are performed.Even in the account given by S. C. Roy as well as by P. W. 4 a Munda male is ex-communicated for marrying a non-Munda girl but such ex-communication is not automatic. It is left to the discretion of the panchayat. If the panchayat approved of a particular marriage with a non-Munda then no question of ex-communication arises. Thus several inroads appear to have been made on the rigid system of endogamy which might have existed at one time but over the course of years several matters are left to be decided by the panchayat or elders of the tribe itself. There is no evidence whatsoever that the late Shri Jaipal Singh was ex-communicated or outcasted because he had married a non-Munda. On the contrary there is abundant evidence that his marriage was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe.22. Reverting to the argument that a non-Munda woman cannot become a member of the Munda tribe by marriage even if the marriage be valid because the Mundas are a patriarchical society and constitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made special research in the matter and even if we exclude the opinion of P. W. 4 who was Superintendent of Anthropological Survey of India that the Parha was the final authority in the matter of acceptance of a non-Munda girl in the community but the rest of his evidence cannot be brushed aside. From all this evidence its proved that once the marriage of a Munda male with a non-Munda female is approved or sanctioned by the Parha panchayat they become members of the community. The contention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception. We have already held that the rule of endogamy has not been proved to exist in the rigid or strict form canvassed by Mr. Anthony. That rule has not been strictly followed and the marriage of a Munda male with a non-Munda woman has been and is being approved and sanctioned by the Parha Panchayat. If a non-Munda womans marriage with a Munda male is valid it is difficult to say that she will not become a member of the Munda tribe. The concept of a tribe is bound to undergo changes, when numerous social, economic, educational and other like factors in a progressive country start having their impact. It is note-worthy that a Hinduised Munda and a Munda converted to Christianity can inter-marry and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas. Mr. Horo himself in all fairness affirmed that custom among the Mundas was not static but was dynamic and was changing. We do not find cogent or weighty reasons for disagreeing with the view of the High Court on the points under discussion.23. We may also refer to Article 330 of the Constitution according to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes. Under S. 33 (2) of the act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member. Article 342 (1) empowers the President to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be. In Parts 1 to 12 of the Schedule to the Constitution (Scheduled Tribes) Order 1952 are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities who are to be deemed to be Scheduled tribes, Munda is one of such specified tribes or tribal communities. It can well be said that the term "tribal community" has wider connotation than the expression "tribes". A person who, according to the strict custom of a tribe, cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community. Where a non-Munda woman in married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe. She cannot, however, be excluded from the larger group, namely, the tribal community. The High Court has taken the view that the use of the term "tribal communities" in addition to the term "tribes in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husbands domicile. Even without invoking the doctrine of domicile the respondents marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can well be said that she became a member of the Munda tribal community. We have not been shown any infirmity in the reasoning of the High Court on this point. When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions.