Supreme Court of India

Rameshbhai Dabhai Naika vs State Of Gujarat & Ors on 18 January, 2012

Equivalent citations: 2012 AIR SCW 913, 2012 (2) AIR KAR R 147, 2012 LAB IC 1094, AIR 2012 SC (CIVIL) 591, (2012) 113 CUT LT 983, (2012) 3 MAD LJ 332, (2012) 2 MARRILJ 205, (2012) 1 ORISSA LR 602, (2012) 2 ALLMR 70 (SC), (2012) 2 RECCIVR 254, (2012) 1 SCALE 434, (2012) 111 ALLINDCAS 197 (SC), (2012) 91 ALL LR 251, (2012) 3 ALL WC 2380, (2012) 2 CIVILCOURTC 324, (2012) 1 GUJ LH 448, (2012) 1 KER LJ 563, (2012) 1 KER LT 383, (2012) MATLR 479, (2013) 8 SERVLR 283, (2012) 2 JCR 62 (SC), 2012 (2) SCC (CRI) 190, (2012) 3 BOM CR 139

Author:
Aftab Alam

Bench:
Ranjana Prakash Desai
,
Aftab Alam

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
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
,

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

&
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
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
,
,
,
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