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CASE NO.:

Appeal (civil) 4413-4414 of 2003

PETITIONER:

SOBHA HYMAVATHI DEVI

RESPONDENT:

SETTI GANGADHARA SWAMY & ORS.

DATE OF JUDGMENT: 28/01/2005

BENCH:

C.J.I,G.P. MATHUR & P.K. BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

P.K. BALASUBRAMANYAN, J.

1. The election of the appellant from Sringavarapukota 28

S.T. Assembly constituency in Vizianagaram District of Andhra

Pradesh to the legislative assembly in the elections of the year 1999

was challenged under the Representation of the People Act before the

High Court of Andhra Pradesh in three Election Petitions. Two of

them were by defeated candidates and one of them by a voter in the

constituency. The election petition [E.P.No. 25 of 1999] filed by one

of the defeated candidates abated due to the death of the petitioner

therein during the pendency of the election petition in the High Court.

The other two election petitions were allowed by the High Court

upholding the challenge to the election of the appellant on the ground

that the appellant was not qualified to contest from a constituency

reserved for Scheduled Tribe candidates. Thus the election of the

appellant was set aside. Aggrieved thereby, the appellant has filed

these appeals under Section 116A of the Representation of the People

Act, 1951.

2. The question that fell for decision before the High Court in

the Election Petitions filed under Section 81 read with Section 100 of

the Act and that falls for decision before us, is whether the appellant

belongs to a Scheduled Tribe and hence qualified to contest the election

from a constituency reserved for a Scheduled Tribe. According to the

Election Petitioners, the appellant belonged to a forward community,

Patnaik Sistu Karnam, while according to the appellant, she belongs to

the Bhagatha Community, which was a notified Scheduled Tribe. The

High Court, on evaluation of the pleadings and the evidence adduced

before it, came to the conclusion that the appellant was a Patnaik Sistu

Karnam and was not a member of Bhagatha Community, a Scheduled

Tribe community. It was thus that the election of the appellant was set

aside. The High Court posed the question whether the Election

Petitioners have established that the appellant did not belong to

Bhagatha Community as claimed by her and on coming to the

conclusion that they have established that she belonged to the Patnaik

Sistu Karnam community and further finding that the said community

was not a Scheduled Tribe, granted the relief to the Election

Petitioners,. What is contended in these appeals on behalf of the

appellant, is that the said finding by the High Court was not justified

and the appellant was entitled to be treated as belonging to Bhagatha

Community, a Scheduled Tribe.

3. Certain facts are not in dispute. One Sobha Rama Raju

belonged to Bhagatha Community. He had two wives, Mallamma and

Gowramma. Through Mallamma he had a daughter Simhachalam.

The appellant is the daughter of Simhachalam. According to the

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Election Petitioners,, Simhachalam had married one Murahari Rao

belonging to the Patnaik Sistu Karnam caste and in that wedlock, was

born the appellant and five other children. The appellant admitted that

she was the daughter of Simhachalam through Murahari Rao. But she

pleaded that she and five of her siblings, were the illegitimate children

of Murahari Rao, a Patnaik Sistu Karnam and Simhachalam, of the

Bhagatha Community. Simhachalam had earlier married Ladda Appala

Swamy who belonged to the Bhagatha Community and that marriage

was never terminated and there was no marriage between Simhachalam

and Murahari Rao, though there was intimacy and cohabitation

between them resulting in progeny, six in all including herself, all

illegitimate. To add strength to her contention, the appellant also raised

a plea that Murahari Rao had himself earlier married his Sister's

daughter Kalavathi and that marriage had also not been terminated and,

therefore, there was no possibility of Murahari Rao, her father formally

marrying Simhachalam, her mother. The appellant further pleaded that

she had married one Appala Raju, her maternal uncle belonging to the

Bhagatha Community and being the wife of a person belonging to a

Scheduled Tribe, she was also entitled to be treated as belonging to the

Scheduled Tribe. Thus she had the status of a Scheduled Tribe and

hence was qualified to contest the election from a constituency reserved

for Scheduled Tribes. The Election Petitioners,, on the other hand,

denied that Simhachalam had earlier married Ladda Appala Swamy as

alleged by the appellant and also denied that Murahari Rao, her father,

had earlier married Kalavathi as claimed by the appellant. They

pleaded that Murahari Rao and Simhachalam were married and all the

six children including the appellant were born to them in a lawful

wedlock. The High Court, on the evidence, came to the conclusion that

there was no evidence to establish that the mother of the appellant

Simhachalam had earlier married Ladda Appala Swamy. It further

held that even if there was any such marriage, the same must be taken

to have been terminated before Simhachalam started living with

Murahari Rao. The High Court held that Murahari Rao had married

Simhachalam, the mother of the appellant, and six legitimate children

were born to Murahari Rao and Simhachalam. Since a child took the

caste of her father, the appellant had to be considered a Sistu Karnam

and could not be considered to be a member of the Bhagatha

Community. The High Court also held that the appellant had failed to

establish that there was a marriage between Murahari Rao and

Kalavathi as alleged by her. There was, thus, no impediment in

Murahari Rao formally and legally marrying Simhachalam and

begetting six children through her. It then considered the question

whether by virtue of the marriage of the appellant with Appala Raju,

her maternal uncle who belonged to the Bhagatha Community, she

could be considered to be a member of the Bhagatha Community, a

Scheduled Tribe. The High Court, based on a decision of this Court,

held that she could not claim the benefit of reservation to contest from

a reserved constituency merely because of her marriage to a Scheduled

Tribe when she herself belonged to a forward community. It was on

these findings that the challenge to the election of the appellant was

upheld.

4. Before the trial court, PWs, 1 to 11 were examined on

behalf of the Election Petitioners, in addition to marking Exhibits A.1

to A.6. On behalf of the appellant, RWs. 1 to 10 were examined and

Exhibits B.1 to B.35 were marked. Exhibits X.1 to X.32 were marked

through witnesses summoned. The evidence on the side of Election

Petitioners was to the effect that the father of the appellant had married

Simhachalam, the mother of the appellant, that they were living

together; that they had begotten six children including the appellant;

that they were recognized as husband and wife in the village and that

the children were brought up as Sistu Karnams and not as persons

belonging to the Bhagatha Community. On behalf of the appellant, her

father, her mother, her husband, Kalavathi, the alleged wife of

Murahari Rao, the brother of Kalavathi, the father of Kalavathi and

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three others were examined in addition to she herself getting examined.

Simhachalam and Murahari Rao, the mother and father of the

appellant, even while admitting parenthood, tried to give evidence that

they were never formally married. An attempt was made by the other

relatives to support that story. But the trial court, on a proper

appreciation of the evidence, in the light of the circumstances disclosed

and the admissions made by these witnesses, came to the conclusion

that the plea of absence of marriage between Murahari Rao and

Simhachalam could not be accepted in the light of the evidence

available and in the light of the long cohabitation and the birth of six

children including the appellant and the presumption arising therefrom.

5. We were taken elaborately through the judgment of the

High Court, the pleadings and the evidence of the witnesses examined

on either side with particular reference to the evidence of the appellant

as RW-1, her father RW-2, her mother, RW-7 and RW-4, 8 and 10,

Kalavathi, her brother and her father. On going through the evidence

of these witnesses, we are inclined to agree with the conclusion of the

High Court that there are enough admissions in the evidence of these

witnesses which clearly go to prove that Murahari Rao and

Simhachalam, the parents of the appellant, long cohabited together,

begot children and were recognized as husband and wife by the

community. This especially in the context of the documentary

evidence adduced in the High Court which were again brought to our

notice by learned counsel for the respondents. In short, we find that the

finding of the High Court that Murahari Rao and Simhachalam were

married and the six children including the appellant were born in that

wedlock and that it was not possible to hold that there was only a

concubinage and the six children including the appellant were born out

of that relationship and out of wedlock is unexceptionable. Similarly,

we also do not find much merit in the challenge to the finding that the

appellant had failed to prove that Simhachalam had earlier married

Ladda Appala Swamy or that there was any subsisting relationship

between Simhachalam and Ladda Appala Swamy which could stand in

the way of a valid marriage between Murahari Rao and Simhachalam.

Equally, we find that the finding rendered by the High Court that the

appellant had failed to show that her father Murahari Rao had earlier

married Kalavathi, his sister's daughter, is also fully justified especially

if one were to read the evidence of Kalavathi, her brother, her father

and RW-9, examined on behalf of the appellant.

6. We find that the conclusion that there was a valid marriage

between Murahari Rao, the father of the appellant and Simhachalam,

the mother of the appellant, stands strengthened by the presumption

available in law arising out of the long cohabitation of Murahari Rao

and Simhachalam. The Privy Council in Mohabbat Ali Khan vs.

Muhammad Ibrahim Khan and others, AIR 1929 PC 135, held that

the law presumes in favour of marriage and against concubinage, when

a man and a woman have cohabited continuously for a number of years.

This Court in Gokal Chand vs. Parvin Kumari AIR 1952 SC 231,

held that continuous cohabitation of a man and a woman as husband

and wife and their treatment as such for a number of years may raise

the presumption of marriage. But the presumption which may be

drawn from long cohabitation is rebuttable, and if there are

circumstances which weaken or destroy that presumption, the Court

cannot ignore them. We must say that on the evidence here, including

the documentary evidence relied on by the High Court, the presumption

arising from long cohabitation of Murahari Rao and Simhachalam of a

valid marriage between them, gets strengthened and there is no material

circumstance which can be said to rebut such presumption arising from

long cohabitation. The arising of a presumption, though rebuttable, has

also been noticed by this Court in S.P.S. Balasubramanyam vs.

Suruttayan Alias Andalipadayachi and others., (1994) 1 SCC 460,

and in Ranganath Parmeshwar Panditrao Mali and another vs.

Eknath Gajanan Kulkarni and another, (1996) 7 SCC 681. We may

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also incidentally notice that even assuming that there was any earlier

marriage between Simhachalam, the mother of the appellant and Ladda

Appala Swamy at a time when Simhachalam was allegedly eight years

old, the same also can be presumed to have been terminated especially

in the context of the subsequent long cohabitation of Murahari Rao and

Simhachalam and the evidence on the side of the appellant herself that

the alleged marriage between Simhachalam and Ladda Appala Swamy

was when Simhachalam was eight years old; that the said marriage was

never consummated and that Simhachalam had left Ladda Appala

Swamy immediately after marriage and had never lived with him. It is

undisputed that divorce was permitted in the community. In this

context the ratio of the decision in Raja Ram vs. Deepa Bai (1973

MPLJ 626) could be applied. Thus, on the whole, we agree with the

finding of the High Court that there was a valid marriage between

Murahari Rao and Simhachalam, the father and the mother of the

appellant and that the appellant was a legitimate daughter of that union.

7. Learned counsel for the appellant, in spite of her efforts, could

not show any serious flaw in the appreciation of evidence by the High

Court while coming to the conclusion that there was a marriage

between Murahari Rao and Simhachalam. Learned counsel could not

successfully challenge the finding of the High Court that the appellant

could not prove that her mother Simhachalam was earlier married to

Ladda Appala Swamy and that marriage was subsisting or that the

father of the appellant Murahari Rao had earlier married Kalavathi and

that marriage was subsisting. Learned counsel, no doubt, contended

that the appellant must be treated to be an illegitimate daughter of

Murahari Rao and Simhachalam and if so treated, the appellant could

be considered to be a person of the caste of her mother and so viewed,

could be considered to belong to Bhagatha Community, a Scheduled

Tribe. Learned counsel further contended that in any view, since the

appellant had married Appala Raju, a person belonging to the Bhagatha

Community, and she having been brought up as a member of the

Bhagatha Community and accepted by that community as a member

thereof, her status as a member of the Bhagatha Community had to be

upheld especially in the context of the certificate issued to her by the

concerned authority under the Andhra Pradesh (Scheduled Castes,

Scheduled Tribe and Backward Classes) Regulation of Issue of

Community Certificate Act, 1993.

8. 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 Exh. 10 and the entry therein

marked as Exh. 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 Visakhapatnam 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. Faced with this position, learned counsel for the appellant

pitched her case on the fact that the appellant had married a person

belonging to a Scheduled Tribe and had thereby acquired membership

in that community and consequently, she must be treated as a member

of the Scheduled Tribe. Learned counsel placed reliance on the

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decision of this Court in N.E. Horo vs. Smt. Jahan Ara Jaipal Singh ,

AIR 1972 SC 1840, to contend that once a marriage of a male

pertaining to a Scheduled Tribe with a female pertaining to a non

Scheduled Tribe was approved or sanctioned by the concerned

Panchayat they became members of the community and even if a

female is not a member of a tribe by virtue of birth, but she had been

married to a tribal after due observance of all formalities and after

obtaining the approval of the elders of the tribe, she would belong to

the tribal community to which her husband belongs on the analogy of

the wife taking the domicile of the husband. Learned counsel also

referred to the decision in Valsamma Paul (Mrs.) vs. Cochin

University and others, (1996) 3 SCC 545, in support, though the said

decision has been relied on by the High Court for negating the claim of

the appellant in that regard.

9. What is contended by learned counsel for the appellant is that on

the marriage of the appellant with Appala Raju in the customary form

of the Bhagatha Community, the appellant had been recognized as a

member of the Bhagatha Community and accepted as such by the

members of that community and consequently, the appellant must be

taken to have acquired membership of the Bhagatha Community. First

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 grand-father 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.

10. What then remains is the fact that the appellant though assigned

the caste of her father Murahari Rao, namely, the Sistu Karnam

community, had married a tribal belonging to the Bhagatha

Community. On the basis of this marriage, it is argued that she must be

taken to have acquired membership in the community of her husband

and consequently treated as a member of that community. It is in that

context that the decision in Horo (supra) was relied on. It is also

contended that the decision in Horo (supra) related to an election

dispute and consequently, the ratio of that decision should govern the

present case. We have already indicated that there is nothing to show

that the marriage of the appellant with Appala Raju was sanctioned or

approved by the elders of the Bhagatha Community or the concerned

Panchayat or was in tribal form or that the formalities attending such a

tribal marriage were observed and the marriage was performed after

obtaining the approval of the elders of the tribe. 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 (Mrs.) vs. Cochin University and others (supra), supports this

view. Neither the fact that a non-backward female married a backward

male nor the fact that she was recognized by the community thereafter

as a member of the backward community, was held to enable a non-

backward to claim reservation in terms of Articles 15(4) or 16(4) of the

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Constitution. Their Lordships after noticing Bhoobun Moyee v. Ram

Kishore, (1865) 10 MIA 279, and Lulloobhoy Bappoobhoy

Cassidass Moolchund v. Cassibai, (1879-80) 7 IA 212, 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 Horo (supra) 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 (supra) cannot come to the rescue of the appellant. On a

consideration of the relevant aspects, we are of the view that whether it

be a reservation under Articles 15(4) or 16(4) or 330 and 332, the said

reservation would benefit only those who belong to a Scheduled Caste

or Scheduled Tribe and not those who claim to acquire the status by

marriage, like the appellant in this case. Thus, in our view, the High

Court was fully justified in coming to the conclusion that the appellant

could not claim the right to contest a seat reserved for a Scheduled

Tribe in terms of Article 332 of the Constitution of India merely by

virtue of her marriage to a person belonging to a Scheduled Tribe.

11. What remains is the argument based on the certificates

allegedly issued under The Andhra Pradesh (Scheduled Castes,

Scheduled Tribes and Backward Classes) Regulation of Issue of

Community Certificate Act, 1993. The High Court has not accepted

the certificates as binding for the reason that the evidence showed that

the certificates were issued based on the influence exercised by the

appellant as a member of the Legislative Assembly, one after another,

immediately on an application being made and without any due or

proper enquiry. We are impressed by the reasons given by the High

Court for not acting on these certificates. That apart, a reference to

Section 3 of the Act would indicate that a certificate thereunder, insofar

as it relates to elections, is confined in its validity to elections to local

authorities and co-operative institutions. It does not embrace an

election to the Legislative Assembly or to the Parliament.

Therefore, in any view of the matter, it cannot be said that the High

Court, exercising jurisdiction under The Representation of The People

Act in an Election Petition is precluded from going into the question of

status of a candidate or proceeding to make an independent inquiry into

that question in spite of the production of a certificate under the Act.

At best, such a certificate could be used in evidence and its evidentiary

value will have to be assessed in the light of the other evidence let in in

an Election Petition. Therefore, nothing turns on the factum of a

certificate being issued by the concerned authority under the Act of

1993. We are also satisfied as the High Court was satisfied, that no

proper inquiry preceded the issuance of such a certificate and such a

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certificate was issued merely on the say so of the appellant. We have,

therefore, no hesitation in overruling this argument raised on behalf of

the appellant.

12. Before we part with this case, we wish to express our dismay

at the extent to which a person could go to sustain her seat in the

legislature. The appellant brands her five siblings and herself as

bastards, and her mother a concubine. We desist from making any

further observations on this aspect.

13. On an anxious reconsideration of all relevant aspects, we are

satisfied that the High Court was right in declaring the election of the

appellant to the concerned Legislative Assembly of Andhra Pradesh

invalid. We, therefore, confirm that decision of the High Court and

dismiss these appeals with costs.