Manjula vs State of Karnataka and Others

Anand Byrareddy, J.—The petitioner is said to be a resident of Kavaloor village, Koppal Taluk and District, and is said to belong to a Scheduled caste. She claims to have passed SSLC in April 1984 with 43% marks.

The Child Development Project Officer, the third respondent herein, is said to have invited applications to fill up the post of an Anganwadi worker, for the Anganwadi Centre at Kavaloor village. The requisite qualification for the prospective candidates was a pass in SSLC and only if there were no candidates with a pass in SSLC were available, that a failed candidate could be considered for appointment.

It is claimed that the fourth respondent was a candidate who had failed in the SSLC examination. But she had been selected, even though the petitioner was a candidate who had passed her SSLC examination and was eligible in all other respects as well had been overlooked.

It is further stated that the fourth respondent was also disqualified for having falsely claimed as belonging to a Scheduled caste. It is stated that she was a Muslim by birth, but had created a so called ''marriage agreement'' with one Manjappa, belonging to a Scheduled caste and on that basis had claimed as a Scheduled caste candidate.

It is on the above contentions that the appointment of the fourth respondent is sought to be questioned and the petitioner seeks that she be appointed in the stead of the fourth respondent. No statement of objections are filed. However the learned Government pleader and the learned counsel for the fourth respondent were heard. It is pointed out that the petition is rendered infructuous as the petitioner is now aged 46. The age limit prescribed for appointment was 45 and hence is ineligible for appointment as on date, even if the petition is to be allowed.

The question that arises for consideration is whether the fourth respondent, who was bom of Muslim parents, but had married a Scheduled caste man could claim the status as belonging to a Schedule caste.

The apex court has, in the case of Rameshbhai Dabhai Naika v. State of Gujarat & Others, Civil Appeal No. 654 of 2012, in its judgment dated 18.1.2012, has discussed the case law which would be relevant to consider the above issue, while addressing a question as to what would be the status of a person, one of whose parents belongs to the Scheduled Castes or Schedule Tribes and the other belongs to an upper caste, and what would be the entitlement of a person born of such parents, to the benefits of affirmative action sanctioned by the Constitution.

In the above case before the Apex court, it was noticed that the High Court in its judgment, had upheld the order of cancellation of the tribal certificate obtained by the appellant on the ground that his father was a non-tribal, as he was a Kshatriya. Reliance had been placed on Mrs. Valsamma Paul Vs. Cochin University and others, Punit Rai Vs. Dinesh Chaudhary, and Anjan Kumar Vs. Union of India (UOI) and Others, .

On an analysis of the above three decisions, the Apex court has held that it could not be said that in every case of inter-caste marriage or marriage between a tribal and non-tribal, the off-spring must take his or her caste - from the father. That this was not the ratio of the above decisions. It was held that such an inflexible rule of general application did not flow from the said decisions.

In Valsamma Paul''s case, supra, the facts were that 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. Ramkishore Achari Chowdhary, (1865) 10 MIA 279 that judiciary recognized a century and 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, (1979-80) 7 IA 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 supplied)

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 Vs. Vishwanath Pandu Barde and Another, and R. Chandevarappa and Others Vs. State of Karnataka and Others, , this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3) , 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes, the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15(4) and 46 , or in appointment to an office or a post under the State under Article 16(4) . Therefore, when a member is transplanted into the Dalits, Tribes and OBCs. he/she must of necessity also have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4) , as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution".

(emphasis supplied)

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.

The court, thus, gave two reasons for disallowing Valsamma, the benefit of reservation under Artilces 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.

Again, in Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and Others, , which was a case of reservation of seats in the Legislative Assembly under Article 332 of the Constitution which was decided by a three Judge bench of the Apex Court, 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 the 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 recognized 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 supplied)

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 tubals. 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 oft a lady as a member oft a backward community in view oft her marriage would not be relevant for the purpose oft entitlement to reservation under Article 16(4) oft 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 supplied)

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.

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).

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) 7 IA 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 divest 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 divest 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 divested "may perhaps be found in the doctrine of Hindu 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".

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."

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.

The Apex court has then observed thus:

"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."

The Apex Court has referred to the view expressed by a Constitution bench judgment in Shri V.V. Giri Vs. Dippala Suri Dora and Others, , wherein 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 Kshatriya. 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 Kshatriya caste. Oral evidence was led to show that he had for some years past, adopted the customs and rituals of the Kshatriya caste and marriages in his family were celebrated as they would be among the Kshatriya and homa was performed on such occasions. It was also shown that his family was connected by marriage ties with some Kshatriya families, that a Brahmin priest officiated at the religious ceremonies performed by him and he wore the sacred thread.

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 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 coreligionists."

(Emphasis supplied)

The Apex court has expressed that the words of Gajendragadkar had come true while referring to with approval and endorsing a decision of a Full Bench of the Bombay High Court in - Rajendra Shrivastava Vs. The State of Maharashtra, , which was a case of a Scheduled Caste woman, who had married a man from an upper caste, and who accused her husband and his family members of subjecting her to cruelty and abusing her in the name of her caste. A case was accordingly instituted against the accused, including the husband, under Sections 498A , 406 , 494 , 34 of the Indian Penal Code read with the provisions of Section 3(1)(ii) and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the anticipatory bail application filed on behalf of the husband it was contended that on getting married with him, the complainant had assumed his caste and lost her identity as a Scheduled Caste person. She could, therefore, make no complaint under the provisions of the SC/ST (Prevention of Atrocities) Act. It goes without saying that in support of the contention raised on behalf of the husband, strong reliance was placed upon the observations made in Valsamma in Paragraph 31 of the judgment.

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 a man belonging to a forward caste, whether on marriage she ceases to belong to the scheduled caste or the scheduled tribe?"

The full bench of the Bombay High Court examined Valsamma in the light of two Constitutional Bench decisions of this Court, namely, Indra Sawhney Vs. Union of India (UOI) and Others, 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. Vs. M. Radha Krishna Murthy, . 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 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."

The Apex Court has concluded that the view expressed in paragraph 31 of 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 doubtful proposition.

It is further held as follows:

"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."

By the same token of reasoning, it may be said that in an inter-caste marriage, as in the present case on hand, there may be a presumption that the wife has the caste of her husband. But by no means is the presumption conclusive or irrebuttable. It is open to the wife to lead evidence to show that on account of the marriage she has suffered deprivation, indignities, humilities and handicaps like any other member of the community to which her husband belonged. Additionally, that she is treated as a member of the community to which her husband belonged, not only by that community but by people outside the community as well.

In any event, the petitioner herein is not seeking to challenge the caste certificate issued to the fourth respondent. It is only alleged that it is not valid. But having regard to the fact that the petitioner has now completed 45 years of age, she may not be eligible for fresh appointment. But having regard to the circumstance that the petitioner had approached this court at the earliest point of time and that the petition is being considered on merits only at this point of time, and it is not disputed that the petitioner was otherwise eligible and better qualified than the fourth respondent, her case may have to be considered by the State as a special case and to consider whether she could be accommodated in any other vacant post of Anganwadi worker in other centres, if not in the Centre where she had sought employment. The petitioner shall be intimated of the availability or otherwise of such alternative appointment and posting, within a period of three months, if not earlier.

The petition is disposed of in terms as above.

1In 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