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CASE NO.:

Appeal (civil) 7306 of 2005

PETITIONER:

Meera Kanwaria

RESPONDENT:

Sunita & Ors.

DATE OF JUDGMENT: 08/12/2005

BENCH:

S.B. Sinha & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

[Arising out of Special Leave Petition (Civil) No.2106 of 2005]

S.B. SINHA, J :

Leave granted.

Background fact :

The First Respondent herein was Rajput by caste. She married one

Ghanshyam on 09.12.2000, who was a member of Scheduled Caste. The

marriage was performed as per Vedic Hindu Rites. She applied for and

granted a certificate of being belonging to Scheduled Caste by birth by the

Sub Divisional Magistrate (S.D.M.), Rajouri Garden, New Delhi, describing

her as a daughter of Ramaye, who in fact was her husband's elder brother's

father-in-law.

An inquiry was caused to be made by the Sub Divisional Magistrate

upon receiving a complaint that the said certificate contained wrong

declaration as she was daughter of one Chinna Singh and not of Ramaye.

The said allegations were found to be correct. It was also found that the

First Respondent's Jethani's name was also co-incidentally Sunita. On the

said premise, the certificate granted in her favour was cancelled by an order

dated 10.07.2002 and a criminal case under Sections 406, 420, 469 and 471

of the Indian Penal Code was registered. The said criminal case is still

pending.

Election Proceedings :

The First Respondent herein contested an election for the Municipal

Councilor from Ward No.20, Subhash Nagar Ward of Municipal

Corporation of Delhi, Assembly Constituency No.13, a seat reserved for a

Scheduled Caste woman. She was declared elected. The Appellant herein

was also a candidate. Whereas the First Respondent got 14,757 votes, the

Appellant herein got 13,755 votes.

One Krishan Lal filed an election petition before the District Judge,

Delhi in terms of the provisions of the Delhi Municipal Corporation Act,

1957, wherein, inter alia a prayer was made to the effect that the Appellant

herein be declared elected. The contention of the election petitioner in the

said proceedings was that as the First Respondent herein was born in an

upper caste family, she could not have been considered to be belonging to

Scheduled Caste by reason of her marriage only. The Appellant

indisputably was arrayed as Respondent No.2. In the said proceedings, the

learned judge, inter alia, framed the following issues :

"4. Whether the respondent No.1 belongs to a

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scheduled caste category ?

5. Whether the respondent No.1 acquired the status of

scheduled caste by virtue of her marriage with a

Jatav notified as scheduled caste category for the

purpose of her eligibility to contest municipal

election in Delhi ?

6. Whether the election of respondent No.1 as a

municipal councilor from Ward No.20 is liable to

be declared void on facts mentioned to the

petition ?

7. If issue No.6 is decided in affirmative whether

respondent No.2 is entitled to be declared elected

from Ward No. 20 as municipal councilor ?"

Issue Nos. 4 and 5 were taken up for consideration together. Relying,

inter alia, upon a decision of this Court in Mrs. Valsamma Paul v. Cochin

University and Others [AIR 1996 SC 1011], the learned Judge opined :

"25. In view of the above testimony of

respondent No.1 in her cross-examination, no manner of

doubt is left in my mind except to hold that respondent

No.1 has manipulated a scheduled caste certificate by

hoodwinking the legal process. By no means she can be

said to have acquired the status of scheduled caste merely

because of her marriage with scheduled caste person.

Hence, both these issues are decided against respondent

No.1"

Having regard to the aforementioned findings, the election of the First

Respondent herein was held to be void and of no effect and was

consequently set aside. Issue No.7 was, however, not pressed.

High Court Proceedings :

A writ petition was filed there-against by the First Respondent before

the Delhi High Court. The High Court in its judgment noticed several

decisions of this Court and opined that as the First Respondent was

accepted by her husband's family and biradari, the judgment of the learned

District Judge was unsustainable. The High Court distinguished Valsamma

Paul (supra) on the premise that 'principle of reservation contained in

Articles 15(4) and 16(4) of the Constitution of India would be different in a

case wherein individual claims entitlement to other benefits that may be due

to a person belonging to Scheduled Caste'. It was furthermore opined that

the learned District Judge committed an error in not accepting the contention

of the First Respondent that she had not been accepted by the community of

her husband. Subsequent cancellation of the Scheduled Caste Certificate by

the S.D.M. was held to be irrelevant.

Maintainability of the Appeal :

Mr. R.K. Jain, the learned Senior Counsel appearing on behalf of the

First Respondent, at the outset, would take a preliminary objection as regard

the Appellant's locus standi to maintain this appeal drawing our attention to

the findings of the learned Trial Judge that the Appellant herein did not file

any written statement nor any oral arguments were advanced on her behalf.

Strong reliance, in this behalf, has been placed on Thammanna v. K. Veera

Reddy and Others [(1980) 4 SCC 62]. We are not persuaded to accept the

said contention.

In Thammanna (supra), this Court found that at no stage of the

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proceedings, the Appellant before it took any part in the proceedings.

Having regard to Section 116-C of the Representation of the People Act,

1951, it was held that the person would be entitled to maintain an appeal if

the following conditions are satisfied :

"(1) that the subject-matter of the appeal is a conclusive

determination by the High Court of the rights with

regard to all or any of the matters in controversy,

between the parties in the election petition,

(2) that the person seeking to appeal has been a party

in the election petition, and

(3) that he is a "person aggrieved", that is a party who

has been adversely affected by the determination."

As of fact it was found that condition nos.1 and 3 had not been

satisfied holding :

"\005Before the High Court the appellant did not, at any

stage join the contest. He did not file any written

statement or affidavit. He did not engage any counsel. He

did not cross-examine the witnesses produced by the

election-petitioner and the contesting Respondent 1. He

did not appear in the witness-box. He did not address any

arguments. In short, he did nothing tangible to participate

in the proceedings before the High Court."

It was further noticed therein that the Appellant was not a necessary party to

the election petition and, thus, it was not obligatory for the election

petitioner to join him as a respondent.

The said decision has no application in the instant case, as the

Appellant herein took part in the election petition through her counsel,.

although she might not have filed a written statement. She was a necessary

party. A prayer was made in the election petition that she be declared to

have been elected. We have noticed hereinbefore that the election petition

succeeded in part. In the appeal preferred there-against by the First

Respondent, the Appellant alone was the contesting respondent. Prayer (b)

made in the Election Petition, was to her benefit. She filed the present

appeal only because she is aggrieved by the decision of the High Court.

Contentions :

On merits Ms. Pinky Anand, the learned counsel appearing on behalf

of the Appellant, submitted that the judgment of the High Court is

unsustainable as the same runs counter to a three-Judge Bench decision of

this Court in Sobha Hymavathi Devi v. Setti Gangadhara Swamy and Others

[(2005) 2 SCC 244] wherein one of us (Balasubramanyan, J.) was a

member.

It was urged that the certificate obtained by the First Respondent was

a fraud on the Constitution. Reliance, in this behalf, has been placed on

Lillykutty v. Scrutiny Committee, S.C. & S.T. and Others [JT 2005 (12) SC

569].

Mr. Jain, on the other hand, would submit that in the facts and

circumstances of this case, the alleged fraud committed by the First

Respondent would not be deterrent for the purpose of holding that she

became a member of the Scheduled Caste as her marriage was accepted by

the community. Placing strong reliance on the decisions of this Court in

C.M. Arumugam v. S. Rajgopal and Others [(1976) 1 SCC 863], The

Principal, Guntur Medical College, Guntur and Others v. Y. Mohan Rao

[(1976) 3 SCC 411] and Kailash Sonkar v. Smt. Maya Devi [(1984) 2 SCC

91], it was argued that in view of the finding of fact arrived at by the High

Court that she had been accepted by the community, the impugned judgment

should not be interfered with.

It was submitted that even in the decisions of this Court in Sobha

Hymavathi Devi (supra) and Lillykutty (supra), the question which fell for

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consideration was as to whether upon marriage by a girl belonging to a

forward class with a boy who belongs to Scheduled Caste or Scheduled

Tribe, the caste will change as thereby she stands transplanted in her

husband's family.

Findings of the District Judge :

Before adverting to the questions of law raised before us, we would

notice the findings of fact arrived at by the learned District Judge. The

learned District Judge relied upon a circular letter of the Central Government

wherein it was stated :

"The guiding principle is that no person who was

not a scheduled caste/tribes by birth will be deemed to be

member of scheduled caste or scheduled tribe merely

because he or she married person belonging to scheduled

or scheduled tribes.

N.E. Horo (supra) was also distinguished on the ground that therein

the lady who married a person belonging to Munda tribe had proved the

custom by which she was admitted in tribunal community after her marriage,

which fact is absent in the instant case, stating :

"\005It shall be significant to mention that respondent No.1

in her cross-examination has admitted that her marriage

had taken place as per Vaidic Hindu Rites and no special

ceremony was held either before or at the time of

marriage or after her marriage for conversion of her caste

from Rajput to Jatav. She further testified that no

panchayat or Jatav Community was held to accept her as

a member of Jatav caste. However, the respondent No.1

has testified in para 3 of the affidavit Ex.R-1 filed in her

evidence-in-chief that she was fully accepted by the

Biradari/Community of Jatavs as its member. In order to

prove her said point the respondent No.1 has examined

her father-in \026law, husband and three more releatives of

her husband who all have testified that they had accepted

the marriage of respondent No.1 with a Jatav husband

and that they had attended that wedding. Confronted

with this situation, the counsel for the petitioner asked

respondent No.1 in her cross-examination to explain the

word "Biradari" used in her affidavit Ex.P1. Since

clarified the meaning of word "Biradari" employed by

her in para 3 of her affidavit R1 by saying that by the

word "Biradari" she means elders of her husband's

family. This position taken by respondent No.1 in her

cross-examination does not vindicate her point that she

was admitted into Jatav Community by any custom or

any other Hindu Tradition."

Caste issue :

It is not disputed that the marriage took place as per Vedic Hindu

Rites. The marriage was attended by her father-in-law, husband and three

more relatives, who stated that they had accepted the marriage with her Jatav

husband and they had attended that wedding. The term "Biradari" has also

been explained by the First Respondent stating that the same denotes elders

of her husband's family. It is one thing to say that a lady belonging to a

forward caste has been accepted by the community to which her husband

belongs; but it is another thing to say that her marriage has been accepted

only by her husband's family. The question as regard change of caste in

view of her marriage although may be relevant in relation to Hindus, but

when the question of change of caste is referable to the category belonging

to a special class of citizens who require protective discrimination and

affirmative action, a different rule will apply. The burden of proof therefor

indisputably would be on the person who affirms the same.,

In Punit Rai v. Dinesh Chaudhary [(2003) 8 SCC 204], wherein one of

us was a member, this Court opined :

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"On behalf of the respondent, the citation of certain

decisions has also been furnished but those decisions

would be of no help to the respondent. Reliance has been

placed upon Jeet Mohinder Singh v. Harminder Singh

Jassi7 where it has been held that a party upon whom the

burden lies to prove a fact, but fails to discharge his onus,

it is not open for him to bank upon the plea of non-

examination of witness by the other party. The appellant,

it was held, cannot be permitted to derive strength from

the weakness of the case of the other party. We feel that

this case would not be applicable in the facts and

circumstances of the case in hand. On the other hand, the

onus to prove facts within the special knowledge of

Respondent 1, would lie upon him alone to prove those

facts. We have already held that best evidence of the

respondent's case that his mother was a Pasi has been

withheld. In this connection, we may peruse Section 106

of the Evidence Act also which reads as under:

"106. When any fact is especially within the

knowledge of any person, the burden of proving that fact

is upon him.""

It was further opined :

"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.

This Court held that the State will have no jurisdiction to reserve a

constituency for a person who does not belong to the reserved category for

whose benefit it was constituted except by way of a legislation, stating :

"If a customary law is to be given a go-by for any

purpose whatsoever and particularly for the purpose of

enlarging the scope of a notification issued by the

President of India under clause (1) of Article 341 of the

Constitution of India, the same must be done in terms of

a statute and not otherwise."

Reference, in this connection, may be made to a Constitution Bench

decision of this Court in E.V. Chinnaiah etc. v. State of A.P. and Others

[(2005) 1 SCC 394], wherein it was held :

"Reservation must be considered from the social

objective angle, having regard to the constitutional

scheme, and not as a political issue and, thus, adequate

representation must be given to the members of the

Scheduled Castes as a group and not to two or more

groups of persons or members of castes.

The very fact that the members of the Scheduled

Castes are most backward amongst the backward classes

and the impugned legislation having already proceeded

on the basis that they are not adequately represented both

in terms of clause (4) of Article 15 and clause (4) of

Article 16 of the Constitution, a further classification by

way of micro-classification is not permissible. Such

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classification of the members of different classes of

people based on their respective castes would also be

violative of the doctrine of reasonableness. Article 341

provides that exclusion even of a part or a group of castes

from the Presidential List can be done only by

Parliament. The logical corollary thereof would be that

the State Legislatures are forbidden from doing that. A

uniform yardstick must be adopted for giving benefits to

the members of the Scheduled Castes for the purpose of

the Constitution. The impugned legislation being

contrary to the above constitutional scheme cannot,

therefore, be sustained."

The burden must be fully discharged beyond all reasonable doubts. In

N.E. Horo (supra), this Court held :

"Even if a female is not a member of tribe by

virtue of birth. She having been married to a tribal after

due observance of all formalities and after obtaining the

approval of the elders of the tribe would belong to the

tribal community to which her husband belongs on the

analogy of the wife taking the husband domicile."

Yet again in Valsamma Paul (supra), it was held :

"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 or 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\005"

It is, therefore, beyond any doubt or dispute that a person who is a

high caste Hindu and not subjected to any social or educational or

backwardness in his life; by reason of marriage alone cannot ipso facto

become a member of Scheduled Caste or Scheduled Tribe. In absence of

any strict proof he cannot be allowed to defeat the very provisions made by

the State for reserving certain seats for disadvantaged people.

The High Court may or may not be right in holding that no special

ceremony was required for conversion from upper caste to Jatav, but the

finding of fact arrived at by the learned District Judge that her marriage had

taken place as per Vedic Hindu Rites and her marriage has been accepted by

her Biradari meaning thereby elders of her husband's family only cannot be

held to be the same as that she had been accepted by the community of her

husband.

We may notice that in State of Kerala and Another v. Chandra

Mohanan [(2004) 3 SCC 429], a three-Judge Bench after noticing the said

decisions opined :

"The customary laws of a tribe not only govern his

culture, but also succession, inheritance, marriage,

worship of Gods etc. The characteristics of different

tribes despite the fact that they have been living in the

same area for a long time are different. They indisputably

follow different Gods. They have different cultures. Their

customs are also different."

It was further observed :

"Before a person can be brought within the purview

of the Constitution (Scheduled Tribes) Order, 1950, he

must belong to a tribe. A person for the purpose of

obtaining the benefits of the Presidential Order must

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fulfil the condition of being a member of a tribe and

continue to be a member of the tribe. If by reason of

conversion to a different religion a long time back, he/his

ancestors have not been following the customs, rituals

and other traits, which are required to be followed by the

members of the tribe and even had not been following the

customary laws of succession, inheritance, marriage etc.

he may not be accepted to be a member of a tribe. In this

case, it has been contended that the family of the victim

had been converted about 200 years back and in fact the

father of the victim married a woman belonging to a

Roman Catholic, wherefrom he again became a Roman

Catholic. The question, therefore, which may have to be

gone into is as to whether the family continued to be a

member of a Scheduled Tribe or not. Such a question can

be gone into only during trial."

.

In Lillykutty (supra), Thakker, J., speaking for the Division Bench

clearly held that once a certificate is cancelled, the election is also liable to

be cancelled. It may be true that in terms of the rules framed under the Delhi

Municipal Corporation Act, it was not necessary for the First Respondent

herein to produce the caste certificate at the time of filing of nomination as a

declaration in that behalf subserve the purpose. But such a caste certificate

was necessary having regard to the fact that in the event a dispute or doubt

arises as regard the question as to whether the conditions precedent for filing

the nomination are fulfilled or not. The Returning Officer was required to

arrive at a prima facie finding that the candidate belonged to Scheduled

Caste. She applied for grant of a Scheduled Caste Certificate on the basis

that she was Scheduled Caste by birth. Her claim has been found to be

incorrect. Unless it is established as of fact that she had been accepted as a

member of Scheduled Caste by the community as contra-distinguished from

acceptance of her marriage by her husband's family, in our opinion, she

cannot claim the benefit of her reservation.

We, therefore, with respect, express our disapproval to the findings of

the High Court.

In Sobha Hymayathi Devi (supra), it was held

"\005First of all, we must point out that the High Court,

in our view, has rightly held that there was nothing to

show that the marriage of the appellant with Appala Raju

took place in the customary mode followed by the

Bhagatha community. On the other hand, as noticed by

the High Court, the available evidence tends to indicate

that the marriage was more in the form followed by Sistu

Karnams, the community to which her father belonged.

Secondly, as noticed by the High Court, there is nothing

to show that the appellant was accepted by the Bhagatha

community of Bhimavaram as a member of that

community. As discussed by the High Court based on the

evidence in the case, the indication available was that the

appellant hardly resided in Bhimavaram village to which

her maternal grandfather belonged and there was no

occasion for that community to treat her as a member of

that community. There is also nothing to show that the

appellant followed the way of life of that community."

Overruling N.E. Horo v. Smt. Jahan Ara Jaipal Singh [AIR 1972 SC 1840],

it was held :

"\005 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

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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. Their Lordships after

noticing Bhoobum Moyee Debia v. Ram Kishore Acharj

Chowdhry and Lulloobhoy Bappoobhoy Cassidass

Moolchund v. Cassibai held that a woman on marriage

becomes a member of the family of her husband and

thereby she becomes a member of the caste to which she

has moved. The caste rigidity breaks down and would

stand as no impediment to her becoming a member of the

family to which the husband belongs and to which she

gets herself transplanted. 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. The

said reservations are also constitutional reservations

intending to benefit the really underprivileged and not

those who come to the class by way of marriage. To the

extent the decision in Horo6 can be said to run counter to

the above view, it cannot be accepted as correct. Even

otherwise, in the absence of evidence on the relevant

aspects regarding marriage in tribal form and acceptance

by the community, the decision in Horo cannot come to

the rescue of the appellant\005"

In Sandhya Thakur v. Vimla Devi Kushwah and Ors. [JT 2005 (1) SC

556, this Court held :

"In the light of the decision in Valsamma Paul v.

Cochin University and Others (supra) and our decision

rendered today in Sobha Hymavathi Devi v. Setti

Gangadhara Swamy, which were heard along with this

appeal, it must be held that the appellant, who by birth

did not belong to a backward class or community, would

not be entitled to contest a seat reserved for a backward

class or community, merely on the basis of her marriage

to a male of that community\005"

The High Court, thus, committed a manifest error in coming to the

conclusion that the purposes of reservation under Articles 15(4) and 16(4) of

the Constitution, on the one hand, and Articles 330 and 332, on the other,

are different.

Sobha Hymavathi Devi (supra), thus, although recognized that in a

given case acceptance of such a marriage by the community may be held to

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subserve the purpose but in no uncertain terms held that reservation of a seat

for a Scheduled Tribe in the House of the People or under Article 332 in the

Legislative Assembly are constitutional reservations.

In all the decisions relied upon by Mr. Jain, namely, Arumugam

(supra), Mohan Rao (supra) and Kailash Sonkar (supra), this Court was

concerned with conversion and re-conversion having taken place while the

person concerned was minor. In such a case, the doctrine of revival of the

caste was applied. We, however, as at present advised need not dilate

further on the said question as nothing turn out therefrom for the purpose of

this case.

For the reasons aforementioned, the impugned judgment cannot be

sustained which is set aside accordingly. The Appeal is allowed. No costs.