RAMESHBHAI DABHAI NAIKA versus STATE OF GUJARAT & OTHERS

20. The Court in paragraph 6 of the judgment, as quoted E 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 ii) the F 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 G 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 RAMESHBHAI DABHAI NAIKA v. STATE OF GUJARAT & ORS. [AFTAB ALAM, J.] 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 c will have far-reaching grave consequences. A meritorious reserved candidate may be deprived of reserved category for whoin 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 transplantedJnto 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 A 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 B 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 c 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 D century Privy Council decisions, one in Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry, (1865) 10 MIA 279 and .. the other in Lu/loobhoy Bappoobhoy Cassidass Moolchund v. Cassibai, (1879-80) 71A 212. In Bhoobum Moyee Debia the respondent Chandrabullee Debia after the E 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 F · 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 G 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 H was the last full owner and at his death his wife, the appellant, RAMESHBHAI DABHAI NAIKA v. STATE OF GUJARAT & ORS. [AFTAB ALAM, J.] 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 A 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 8 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 C 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 D 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 E 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 F 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 G 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 H a Latin Catholic man (backward class). The parties were RAMESHBHAI DABHAI NAIKA v. STATE OF GUJARAT & ORS. [AFTAB ALAM, J.] 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. c

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 A 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: c "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 caste system1• 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 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." 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". RAMESHBHAI DABHAI NAIKA v. STATE OF GUJARAT & ORS. [AFTAB ALAM, J.]

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 c 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 1 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 Va Isam ma 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 (2012] 2 S.C.R. A 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:- c "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 F 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 G 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 H cases get his/her caste from the father is bound to give rise to RAMESHBHAI DABHAI NAIKA v. STATE OF GUJARAT & ORS. [AFTAB ALAM, J.] 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 c 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 Kera/a, 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 [2012) 2 S.C.R. A 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 201612005 came up for consideration before the full bench of the Kerala High Court. The High Court considered the B 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: c "The Government, vide order G.O. (Ms) No. 25/2005/ SCSTDD dated 201612005 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) F 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: "Ill 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. RAMESHBHAI DABHAI NAIKA v. STATE OF GUJARAT & ORS. [AFTAB ALAM, J.] 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 A 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 B 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. c

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 D 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 E 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 F 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. D.G. Appeal allowed.