# N. E. HORO v. JAllAN ARA JAIPAL SINGH

- **Citation:** [1972] 3 S.C.R. 361
- **Court:** Supreme Court of India
- **Decided:** 1972-02-02
- **Case number:** Civil Appeal No. 909 of 1971
- **Bench:** A. N. Grover, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-e-horo-v-jallan-ara-jaipal-singh-5547
- **Pages:** 18

## Headnote

361
Representation of the People Act (43 of 1951), s. 123(2) and (7)-
Scope of.
Customary Law-Mundas-Marriage between Munda male and a non--
Munda-Whether wife becomes a Munda.
The respondent, who was a Tamil by birth and Christian by religion,
had married a member of the Munda Schedule Tribe in the State of Bihar.
On the death of her husbwd, who was 1l member of the Lok Sabha, she
stood for election from a Parliamentary (Schedule Tribe) Constituencr
in the State. Another candidate B filed objections to her nomination that
she was not a Munda and her nomination was rejected by the Retumin&
Officer, ~nd the appellant was elected. She filed an Election Petition for
settin~ aside the election of the appellant.
She alleged that according to
the Munda Customary Law when a Munda male married outside the tribe,
if his marriag-c was '3Ccepted by the tribe, he continued to be a member
of the tribe and his wife also acquired. its membership,. and so, she became
a Munda. In the petition it was also stated that while hearing B's objections the Returning Officer allowed irrelewnt personal aspersiol!S to be
cast against her and that the Returning Officer had been influenced by B.
The High Court allowed the petition.
Dismissing the appeal to this Court, on the questions: (1) Whether B
was a necessary party to the Election Petition; (2) Whether the marriage
of the respondent, who was a divorcee, was a nullity under s. S7 of the
Indian Divorce Act, 1869, in that she married her Munda husband within
six months from the date of the decree being' made absoltite; and
(3) Whether the petitioner became member of the Munda Tribe,
HELD: (1) According to s. 82(b) of the Representation of the
People Act, 1951, a petitioner must join as a respondent any C3Ddidate
against whom . allegations of any corrupt practices are made in the elec··
tion petition.
Section 123 deals with corrupt practices.
The essential
ingredient of s. 123(7) on which reliance was placed, is to obtain, procure etc. by a candidate of any assistance (other than the giving of a vote)
for the furtherance of .the prospects of that candidate's election from any
person in the service of the Government and belonging to the classes
mentioned in the sub-section. In the present case, there was "bsolutely
no allegation or suggestion that the Returning Officer was influenced by
B for the purpose of rendering assistance for the furtherance of the
prospects of a candidate's election. The influence, mentioned i~ the elec·
tion petition, had reference only to the conduct of the Returnmg Officer
is allowing personal aspersions to be cast o:1gai~st the l'!;sponden~. ,The
allegations do not also amount to any suggestion of d!rect or 1~direct
interference or attempt to interfere on the part of a t'llndidate with the
free exercise of .. ny electoral right, aud hence, do not amount to .undue
influence under s. 123(2). Therefore, since there was no allegation of
any corrupt practice against B he was not a neces;ary party. [366 D-H;
368 A-GI
362
SUPREME COURT REPORTS
[1972] 3 S.C.R.
2 The .respondent had contracted, a marriage with a member of the
:Mu~d~ Tribe a~cord1ng to Munda ntes and ceremonies and not as one
<:h~1st1an marrym!! another Christian.
In the absen~ of any pleadings
-0r issues or mate.rial o~ record to show that in view of the provision, of
· s. 57 ~f the Indian Divorce Act there could not be a valid mahiage
·'3ccord1ng to Munda customary law, such a contention could not be
allowed to be agitated for the fust time in this Court. [369 D-0]
3(i) The information contained in authoritative books dealing with
Mu~da CUstolllary Law and the evidence of witnesses who had made
·special research m the matter, show that: (a) The Mundas are endogamous and intermarriage with non-Mundas is normally prohibited; (b) A
Munda male along with his family, on marrying a non-Munda girl, is
often ex-communicated or outcasted; ( c) the rule of endo113my is, however, not so rigid that a Munda cannot marry a non-Mund

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N. E. HORO
v.
JAllAN ARA JAIPAL SINGH
February 2, 1972
[A. N. GROVER AND M. H. BEG, JJ.]
361
Representation of the People Act (43 of 1951), s. 123(2) and (7)-
Scope of.
Customary Law-Mundas-Marriage between Munda male and a non--
Munda-Whether wife becomes a Munda.
The respondent, who was a Tamil by birth and Christian by religion,
had married a member of the Munda Schedule Tribe in the State of Bihar.
On the death of her husbwd, who was 1l member of the Lok Sabha, she
stood for election from a Parliamentary (Schedule Tribe) Constituencr
in the State. Another candidate B filed objections to her nomination that
she was not a Munda and her nomination was rejected by the Retumin&
Officer, ~nd the appellant was elected. She filed an Election Petition for
settin~ aside the election of the appellant.
She alleged that according to
the Munda Customary Law when a Munda male married outside the tribe,
if his marriag-c was '3Ccepted by the tribe, he continued to be a member
of the tribe and his wife also acquired. its membership,. and so, she became
a Munda. In the petition it was also stated that while hearing B's objections the Returning Officer allowed irrelewnt personal aspersiol!S to be
cast against her and that the Returning Officer had been influenced by B.
The High Court allowed the petition.
Dismissing the appeal to this Court, on the questions: (1) Whether B
was a necessary party to the Election Petition; (2) Whether the marriage
of the respondent, who was a divorcee, was a nullity under s. S7 of the
Indian Divorce Act, 1869, in that she married her Munda husband within
six months from the date of the decree being' made absoltite; and
(3) Whether the petitioner became member of the Munda Tribe,
HELD: (1) According to s. 82(b) of the Representation of the
People Act, 1951, a petitioner must join as a respondent any C3Ddidate
against whom . allegations of any corrupt practices are made in the elec··
tion petition.
Section 123 deals with corrupt practices.
The essential
ingredient of s. 123(7) on which reliance was placed, is to obtain, procure etc. by a candidate of any assistance (other than the giving of a vote)
for the furtherance of .the prospects of that candidate's election from any
person in the service of the Government and belonging to the classes
mentioned in the sub-section. In the present case, there was "bsolutely
no allegation or suggestion that the Returning Officer was influenced by
B for the purpose of rendering assistance for the furtherance of the
prospects of a candidate's election. The influence, mentioned i~ the elec·
tion petition, had reference only to the conduct of the Returnmg Officer
is allowing personal aspersions to be cast o:1gai~st the l'!;sponden~. ,The
allegations do not also amount to any suggestion of d!rect or 1~direct
interference or attempt to interfere on the part of a t'llndidate with the
free exercise of .. ny electoral right, aud hence, do not amount to .undue
influence under s. 123(2). Therefore, since there was no allegation of
any corrupt practice against B he was not a neces;ary party. [366 D-H;
368 A-GI
362
SUPREME COURT REPORTS
[1972] 3 S.C.R.
2 The .respondent had contracted, a marriage with a member of the
:Mu~d~ Tribe a~cord1ng to Munda ntes and ceremonies and not as one
<:h~1st1an marrym!! another Christian.
In the absen~ of any pleadings
-0r issues or mate.rial o~ record to show that in view of the provision, of
· s. 57 ~f the Indian Divorce Act there could not be a valid mahiage
·'3ccord1ng to Munda customary law, such a contention could not be
allowed to be agitated for the fust time in this Court. [369 D-0]
3(i) The information contained in authoritative books dealing with
Mu~da CUstolllary Law and the evidence of witnesses who had made
·special research m the matter, show that: (a) The Mundas are endogamous and intermarriage with non-Mundas is normally prohibited; (b) A
Munda male along with his family, on marrying a non-Munda girl, is
often ex-communicated or outcasted; ( c) the rule of endo113my is, however, not so rigid that a Munda cannot marry a non-Munda even after
pe~forming. special ceremonies; ( d) Such maitiages have been and are
being sanctioned by Par ha Panchayat, and ( e) Where a Munda male and
his family are outcasted for marrying a non-Munda they are re-admitted
to the tribe after certain special ceremonies are performed. I376 C-F]
In the present case. there is no evidence that the deceased husband of
the respondent w.is ex-communidated or outcasted because he had married
a non-Munda; on the contrary, the· evidence is that the rule of endogamy
has not been observed in a rigid or strict form, and that the marriage was
accepted as valid and was "pproved by the Parha Panchayat and the elders
of the Tribe. Once the mW"iage of a Munda male with a non-Munda female is approved or sanctioned by Parha Panchayat they become members
·Of the community. The contention that a person can be a Munda by birth
alone can be sustained only if the custom of endogamy is established without any exception. [377 A-DJ
(ii) Munda is one of the specified tribes or trilnl communities in the
Schedule to the Constitution (Schedule Tribes) Order 1952.
The term
""'tribal community' is of wider connotation than the expression 'tribe'. A
person who, according to the strict custom of a tribe, cannot be regarded
as a member of that tribe may be regarded as a member of that trJbal
community.
Where a non-Munda woman is married to a Munda male
and the marriage is approyed and sanctioned by the Pahra Panchayat of
that tribe, and the marri~ge is va1id, she may noj, on the oassumption that
the rule of endogamy prevails, become a member of the Munda tribe in
'the strict sense as not having been born in the tribe.
But a marriage
between a Hinduised Munda '!Ind a Munda converted to Christianity is
permitted.
That being so, the wife canngt be excluded from the -larger
group, namely, the tribal community.
In the present case the respondent's
marriage with a Munda ma]e having been approved and sanctioned by
·the Poahra ~anchayat of the Munda tribe, it can be said that she became
a membei" of ·the Munda tribal community.
When a person, in course
of time, has been assimilated into the community that person cannot be
denied the rights and privileges which may be conferred on that community, even though
tribal, by Constitutional
provisions. [377 E, H;
378 A-El
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 909 of
1971.
Appeal under s. 116-A of the Representation of the Peop:e
Act 1951 from the judgment and order dated May 21, 1971 of
rthe 'Patna High Court in Election Petition No. 2 of 1970.
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N. E. HORO v. SMT • .JAIPAL SINGH (Grover, J.)
353;
Frank Anthony, A .. T. M. Sampath and E. C. Agrawala, for the:
. appellant.
L. M. Singhvi, Basudeva Prasad, Ravinder Narain and P. c;
Bhartari, for the respondent.
The JudJ<lllent of the Court was delivered by
Grover, J. This is an appeal from a judgment of the
Patna High Court holding that the nomination papers of the:
respondent Smt. J ahan Ara Jaipal Singh had been illegally rejected by the Returning Officer.
For that reason the election
of the returned candidate Shri N. E. Horo from the 51 Khunti
Parliamentary (Scheduled Tribe) Constituency 'in the State of
Bihar was set aside.
On May 1, 1970 the .Election Commission of India issued a,
notification calling upon the above-named Parliamentary Consti~
tuency to elect a Member to the Lok Sabha in the vacancy
caused by the death of late Shri Jaipal Singh. The last date for
filing the nomination papers was May 8, 1970.
The date for
scrutiny was May 9, 1970.
Several persons filed nomination
papers including Theodore Bodra and others. Two nomination
papers. were filed on behalf of the respondent who was a Congress
(Ruling) candidate for the aforesaid by-election. According to
the .respondent she was the widow of late Shri Jaipal Singh and'
was a member of the Munda Scheduled Tribe in the State of
Bihar.
She filed certain certificates to that effect.
Bodra filed
an objection petition to the noniination papers of the respondent.
The Returning Officer, after hearing arguments, passed an order
rejecting the nomination papers of the respondent.
The nomination papers of all the other candidates were accepted.
After
the polling took place the result of the election was announCed
on June 3, 1970 and the appellant Shri Horo was declared elected to the Lok Sabha. On July 8, 1970 the respondent filed an
election petition.
· In the election petition it was stated inter alia that the petitioner (who is now respondent before us) was the widow of Lat>~
Shri J aipal Singh and belonged to the Munda Scheduled Tribe
although she was a Christian by religion. It was averred in paragraph 3 of the petition that according to the Munda Customary
Law when a Munda male married outside the Munda Tribe if his
marriage is accepted by the Tribe he continues to be a member
of that Trib>~ and his wife also acquires its membership. It was
pleaded that the wife being a member of her husband's family
had the right of succession to her husband's property as well. In
para 4 of the petition it was stated thM th.e petitioner was a Tamil
by birth.
She married late Shri Jaipal Singh in the year 1954
:354
SUPREME COURT REPORTS
[1972] 3 S.C.R.
according_ to the rights and rituals of Mundas in the presence of
Farha Raia, Parha Munda, Parha Pahan, relatives of the deceased
and the members of the Tribe at Morabadi a Mohalla of Ranchi.
III paragraph 5 the ceremonies which were performed according
to Munda custom were mentioned.
These ceremonies inter alia
were the washing of the wife's feet by the elder sister of the husband and the holding of the feast of the male goat meat and
drinks of Handia etc. A new name was given by her mother-inlaw to the petitioner, that name being
Lankashri.
All these
functions were witnessed by Parha Raja, Parha Munda, Parha
Pahan and other members of the Tribe. In paragraph 6 more
details were given of the various other ceremonies also which
were performed in connection with the marriage. After referring
to the . relevant provisions of the Representation of People Act
1951,-hereinafter called the 'Act', it was stated that the Returning
Officer had illegally allowed irrelevant personal aspersions to be
cast against the petitioner by her opponents.
It was alleged
that the Returning Officer had been influenced by Bodra who
was the Chairman of the Bihar Legislative Council. The decision
of the Returning Officer that the status of a Munda could be
acqnired only by birth and not by marriage and that the petitione.r
did not belong to the Munda Scheduled Tribe was challenged
principally on the ground that the Returning Officer had not
considered the custom by which if a Munda male marries a
women not belonging to Munda Tribe and that is accepted by
the Tribe the wife acquires the membership thereof.
In his written statement the returned candidate Shri Horo
·maintained that even though the election petitioner might
be
living as wife of late Shri J aipal Singh she was never married in
accordance with the custom of the Munda Tribe prevalent in
Chhota Nagpur. It was denied that she was ever accepted as
a member of the Munda community as no such custom is prevalent in that community. It was denied that the ceremonies and
rituals mentioned in the election petition had been performed in
respect of the marriage of the election petitioner with the late
Shri Jaipal Singh. In paragraph 25 of the written statement it
was asserted that a non-Munda merely by virtue of the marriage
with a Munda could not ipso facto become a Munda. If a person
was not born of a father belonging to a Scheduled Tribe he or
she could not legally claim to be a member of the said Tribe.
It was asserted that since the election petitioner was not the
daughter of a member <if the Munda Tribe she could not claim
to be a member of that Scheduled Tribe.
The allegations of
mala fides made against the Returning Officer were described as
baseless and extraneous.
During t)J.e pendency of the election petition. J!ie Lok Sabha
was dissolved on December 27, 1970. A petition was filed
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N. E. HORO v. SMT. JAIPAL SINGH (Grover, /.)
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before the High Court on behalf of Shri Horo that the election
petition should be dismissed as having become infructuous. The
court made an order on January 14, 1971 holding that the election petition could not be dismissed on that ground.
On the pleadings of the parties seven issues were framed.
Issues 1, 2 and 3 which are material need be mentioned.
( 1) Is the election petition maintainable ?
(2) Whether the petitioner was the legally married wife of late
Shri Jaipal Singh according to the custom of Munda Tribe prevalent in Chhota Nagpur ?
(3) Whether the petitioner could legally acquire the status of a
Munda by virtue of her marriage to late Shri J aipal Singh and
whether she had been accepted as a member of the Munda Tribe
by the said Tribe· ?
It may be mentioned that so far as issue No. 1 was concerned the objection taken was that ·the election petition was defective .on account of the non-joinder of necessary parties.
When
the election petitjon was filed only Sbri Horo the returned candidate was implead,ed but subsequently a petition was filed on
behalf of the election petitioner making a prayer that the other
contesting candidates were also necessary parties and should be
impleaded. The court directed that they be added as parties.
Sbri Bodra who was one of the contesting parties was consequently
impleaded as a party. Later on it was prayed on behalf of the
petitioner that on a further consideration it was found that the
persons who bad been subsequently added were not necessary
parties and their names might be deleted.
Bodra' s name was
therefore deleted.
The argument raised before the High Court
was that Bodra being a necessary p~rty to the petition under
cl. (b) of s. 82 of the Act the petition became defective as soon
as his name was struck off at the instance of the election petitioner. The High Court was of the view that although in paragraph 21 of the election petition an allegation had been made
that Bodra had influenced the Returning Officer, no evidence was
led on that point and the case of the election petitioner was based
solely on the ground that the nomination paper had been illegally
and improperly rejected.
No relief had been sought on the
ground that undue influence had been exercised on the Returning Officer by Bodra. The High Court was also of the view that
the allegation made in the election petition that Bodra had exercised his influence in getting the nomination paper of the election petitioner rejected did not fall within the ambit and scope
of sub-s. (7) of s. 123 of the Act. The contention that the petition was not maintainable was consequently rejected.
On the main issues, namely (2) and (3) i! was expressly
stated in the judgment that the factum of the marriage of the elec-
366
SUPREME COURT REPORTS
[1972] 3 S.C.R.
tion petitioner with the late Shri Jaipal Singh had not been dis-, A
puled.
The real controversy between the parties in the High
Court centered round the point whether the marriage was
in
such form that the wife acquired the membership of the Tribe.
According to the arguments on behalf of Shri Horo as the election petitioner was not a Munda she could not belong to the
Munda Tribe and that by marriage such a status could never
be acquired.
The High Court examined the evidence relating
to the question whether the marriage of the election petitioner
with late Shri Jaipal Singh had been performed in accordance
with the Munda custom and was in such form that she was accepted and treated as a member of the Munda Tribe. The court
also considered the various authoritative books and other works
relating to the Mundas and came to the conclusion that on a survey of the entire evidence and the circumstances there was no
reason to discredit the evidence which had been led on behalf
of the petitioner that she was married according to the Munda
custom and that it was with the approval and sanction of the
Tribe that she had been accepted as a member of the Munda
tribe.
The first contention raised by Mr. Frank Anthony on behalf
of the appellant relates to issue No. 1. It has been maintained
by him that Bodra was a necessary party. Apart from the fact
that he wa5 the only person who had filed a written objection
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to the nomination of the respondent the election petition filed
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by the respondent contained serious allegations of corrupt -ptac-.
tiee against Bodra. As he had been given up as a party although
impleaded at one stage the petition became defective and was not
maintainable.
According to clause (b) of s. 82 of the Act the
petitioner must join as a respondent any candidate against whom
allegations of any corrupt practices are made in the petition. Section 86 (1) provides that the High Court shall dismiss any elecF
tion petition which does not comply inter alia with the provisions
of. s. 81.
There can be little doubt that if the allegations made in the
election petition against Bodra amounted to the commission of
a corrupt practice by him it was obligatory on the part of the
election petitioner to join him as a respondent to the petition.
It is equally clear that in that event the petition would have
become liable to
dismissal.
For finding out what a corrupt
practice is we have to turn to s. 123 of the Act. According to
Mr. Anthony the allegations made against Bodra fell
within
sub-s. (7) of s. 123 which is in the following terms :
S. 123 "The following shall be deemed to be corrupt practices
for the purposes of this Act :-
....................
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N. E. HORO v. SMT. JAIPAL SINGH (Grover, l.)
367
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(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or
his agent or, by any other person with the consent of a candidate or his election agent, any
B
assistance other than the giving of vote for the
furtherance of the prospects of that candidate's
election, from any person in the service of the
Government and belonging to any of the following classes, namely :-
(a) gazetted officers;.
(b) stipendary judges and magistrates;
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(c) members of the armed forces of the Union:
(cf) members of the police forces;
le) excise officers;
(f) revenue officers other than village revenue
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officers known as lam bardars, malguzar>.
patels, dcshmykhs or by any other name.
whose duty is to collect land revenue and
who are remunerated by a
share of, or
commission on, the
amount of land revenue collected by them but who do not
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discharge any police functions; and
(g) such other class of persons in the service
of the Government as may be prescribed.
Explanation.-(1) In this section the expression
"agent"
includes an election agent, a polling agent and any person who
is held to have acted as an agent in connection with the election
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with the consent of the candidate.
(2) For the purposes of clause (7) a person shall be deemed to assist in .the furtherance of the prospects of a candidates's
election if he acts as an election agent of that candidate".
The allegations against Bodra are contained in para 21. ~ the
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election petition which may be set out :
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"That the Returning Officer,
while
hearing the
objections illegally allowed irrelevant personal aspersions to be cast against the petitioner by her opponents
and the aforesaid Shree Theodore Bodra even
after
protests made by and on behalf of the petitioner, Shrill
mati Jahanara Jaipal Singh, against the same".
A plain reading of the above paragraph shows that no such allegation was made that Bodra had influenced the Returning Officer
11-L887 Sup CI/72
368
SUPREME COURT REPORTS
[1972] 3 s.c.R.
f?r t~e pu~-pose mentioned in s. 123(7) of the Act. The essential mgred1ent of th~t provision is to obtain, procure etc. by a
candidate of any assistance (other than the giving of a vote) for
the furtherance of the prospects of that candidate's election from
any person in service of the Government and belonging to the
classes mentioned in the sub-section.
There is absolutely
no
allegation or suggestion in para 21 that the Returning Officer
was rnlluenced by Bodra for the purpose of rendering assistance
for the furtherance of the prospects of the election of any candidate.
All that has been stated in that paragraph is that while
hearing the objection the Returning Officer allowed
irrelevant
personal aspersions to be cast against the election petitioner by
her opponents and Bodra. It was further stated that on inquiry
the election petitioner came to learn that the Returning Officer
had been influenced by Bodra.
This influence apparently can
have reference only to the
conduct or act of the
Returning
Officer in allowing personal aspersions to be cast against the
election petitioner.
Even by stretching the language it is not
possible to discover any of the ingredients which would constitute a corrupt practice under s. 123(7) of the Act. Faced with
this situation Mr. Anthony sought to rely on sub-s. (2) of s. 123
the relevant part of which is as follows :
"(2) Undue influence, that is to say, any direct or
indirect interference or attempt to interfere on the part
of the candidate or his agent, or of any other person
with the consent of the candidate or his election agenJ
with the free exercise of any electoral right :
Provided that-" .......... "
It is not possible to comprehend how the allegation contained
in para 21 can be understood to amount to a suggestion Of direct
or indirect interference or attempt to interfere on the part of the
candidate etc. with the free exercise of any electoral right. We
are accordingly satisfied that no allegation of any corrupt practice had been made in the election petition against Bodra and
therefore he was not a necessary party within s. 82 of the Act.
In this view of the matter it is not necessary to examine the
criticism of Mr. Anthony of that part of the judgmen! of the
High Court according to which one of the reasons
given for
deciding issue No. l in favour of the present respondent. was
that no relief had been sought on the ground that undue mfiuence had been exercised on the Returning Officer by Bodra and
that no evidence was led on that point.
On issues 2 and 3 Mr. Anthony has raised three main points.
The first was that the respondent who was a Christian by birth
was a divorcee and according to her own statement the decree
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N. E. HORO v. SMT • .TAIPAL SINGH (Grover, J.)
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nisi in the divorcee proceedings had been made absolute on May
6, 1954. According to her she got married to late Shri Jaipal
Singh on May 7, 1954. This marriage was a nullity as under
s. 57 of the Indian Divorce Act 1869 she could not enter into a
second marriage until after the expiry of six months from the
date the decree had been made absolute.
Secondly the High
Court ha<.! palpably erred in holding that the respondent had
become a member of the Munda tribe by marrying Shri Jaipal
Singh and set aside the order of the Returning Officer who had
held that she was a Christian by birth and Munda tribe being
~.n ethnic group its membership could not be acquired by marriage but could be acquired only by birth.
Thirdly it has been
strongly urged that the respondent failed to prove the custom
that a non-Munda could be initiated into tribe as its full fledged
member eith~r by performance of =ertain rituals and ceremonies
or by the acceptance as such by the tribe or its panchayat.
As regards the first point it was never canvassed or argued
before the High Court. No plea was taken by Shri Horo in the
written statement that there could be no valid marriage between
the respondent and late Shri Jaipal Singh owing to the provisions
contained in s. 57 of the Indian Divorce Act 1869 until after
the lapse of a period of six months from the date the decree of
divorce was made absolute. None of the issues which was framed by the High Court involve the question now sought to be
agitated based on the provisions of s. 57 of the Indian Divorce
Act. It appears that advantage is sought to be taken from the
statement of the respondent about the various dates when the
decree· absolute was granted and the date when the marriage
took place between the respondent and the Jate Shri Jaipal Singh.
In the absence of any pleadings or issues no material has been
placed on the record to show that in view of the provisions of
s. 57 of the aforesaid Act there could not be a valid marriage
acoording to the. Munda customary law.
It must be remembered
that the respondent contracted a marriage with late Shri Jaipal
Singh according to Munda rites and ceremonies and not as one
Christian marrying another Christian. Nor was the matter pursued in cross-examination of the respondent and she was not
asked as to how she could get over the bar of s. 57 in the way
of remarriage before the expiry of the prescribed period.
In
these circumstances we do not consider that such a point can
be allowe>i 1.o be agitated for the first time before this Court.
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On the second and the third points a great deal ·of reliance
has been placed on the following statement in the well known
book of S. C. Roy "Mundas and their country", 1912 Edn. :
"The Munda tribe is divided into a large number
of exogamous
groups
called
kilis.
According
to
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SUPREME COURT REPORTS
[1972] 3 S.C.R.
Munda tradition, all the members of the same Kill are
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descended from one
COilllllOn ancestor. But such a
tradition ~ay not be quite correct with regard to the
ongmal kills. Though exogamous as regards the kills,
the Mundas are endogamous so far as other tribes are
concerned. Thus, there can now be no valid marriage,
according to Munda custom, between a Munda and the
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member of any other 'kolarian' tribe, such as the
Santals, the Kharias the Asurs, .or the Bir-hors".
According to Roy !he family came to be evolved from tribes
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and sub-tribes.
Communal marriage was
superseded by the
in<li\·idual marriage and Matriarchal Age was superseded
by
Patriarchal.
Kinship came to be. traced not as before, through
a common fem.ale ancestor hut through a male ancestor. D. N.
Mazumdar in his work 011 the Ho tribe entitled "Affairs of a
Tribe'', 1950 Edn. points out that the rule of endogamy has its
base in superstitious belief.
According to him villages which
are closely allied by ties of marriage are those which share the
same God and Spirits and the same Deonwa. The influence of
Deomvas, in other words, the knowledge of the Bongas of an
area, determines the limit of exogan1y, for there is a risk in
man:ying in villages the Uongas of which arc unkown;
(pp.
237-238).
From the a.:count given by S. C. Roy himself it
appears that according. to th•-Murula custom the rule of endogamy is not absolute; for instance, In the case of Munda female
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married or unmarried found to have gone astray with a man of
a different caste or tribe, it is said, that the latter is summoned
before a Panchayat and a heavy fine is imposed on the lover and
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the fine, if realised, is paid as compensation to the parents of
the seduced maiden or the husband of the married female and
the seducer is compelled to take the girl or woman as a wife or
a mistress and in case of refusal (which is rare) to submit to
the orders of the Panchayat. 1 The family of the seduced female
remains outcaste until a purificatory ceremony is perfomied and
thus restored to caste.
The members of the family then cook
rice and pulse and themselves distribute the food to the assem·
bled relatives; (see pp. S44-54S.)
The question that has to be enquired into is whether the
strict rule of endogamy of the Munda tribe has been deviated
from and wh~ther custom has sanctioned such deviation. D. bl.
Mazumdar in his work "Races and Cultures of India" deals with
tribal organisations in Chapter 17. According to him the defi·
nition that is found in the current literature on the subject is
given in the Imperial Gazetteer which is, "A tribe is a collection
of families beanng a common name, speaking a common dialect
occupying. or professing to occupy a collllllon territory and is
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N. E. HORO v. SMT • .TAIPAL SINGH (Grover, I.)
371
not usually endogamous though originally it might have been
so". Endogamy is an essential feature of the tribe though inter·
tribal marriages are breaking the limits of endogamy. It is further stated by him that "the importance of the blood bond or the
kinship group is forced to the background, the communal eco·
nomy of the clan is superseded by individual desire for gain and
property, money assumes an importance it seldom had before,
and the ties of reciprocity and mutuality of obligation are reoriented to suit new conditions.
Tribal custom and practices
which established social life lose· their value and the choice
::if
leader and of mate is guided by different considerations".
The
Munda tribe cannot be said to be immune from the above proc~5'
of chanll,C in their social organisation. Changes in !heir belief.
customs, traditions and practices have taken place under the influence of Hinduism, Christianity, and on account of the impact
of western cducatiol,l, urbanisation, industrialisation and improved means of communication.
The sense of individualism and
lack of love for, the traditional code of conduct and social taboos
:ire stntcd to be apparent among the emerging urban-industrial
,oriented adivasi communities.
D. N. Mazumdnr has made an intensive study of the rule of
endogamy among the Ho tribe which is an off-shoot of the Munda
:ribe. A reference to the Ho practice may, therefore, help us in
understanding the practice among the Mundas.
According to
D. N. Mazumdar "A Ho does not marry outside the tribe as a
rule but there is today no legal or social prohibition against bis
doing so.
Though tribal code has relaxed considerably those
who work in the mining and industrial centres in and outside
Kolhan cq,ntract such alliances and when they come back
to
their villages they are not outcasted by the society;" (pp. 124·
12S, "Races and
Cultures of India").
At another place he
records :-
"The endogamy of the tribe is not sacred today,
with the result that many marriages have taken place
between the Hos and other tribes.
Liaison between
Diku men and Ho girls is increasing, and cases that
have occurred in Chaibassa during the last ten yean or
so would fill a volume. Thus, there beln~ no lon~er
any deterrent to mating with strangers, social authonty
vested in the Kiili punch has to exercise its prerogative
to ensure a compliance with social traditions. l{illl
exogamy has not led to an indiscriminate alliance bet·
ween the different killis and as far as our knowledge
"oes taboo on marriage outside a particular local area
~an °be traced to a dread of unfamiliar Bongas, who
were conceived as hostile, and therefore dangerous".
Ip. 2~6),
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SUPREME COURT REPORTS
[1972] 3 S.C.R.
L. P. Vidyarthi in his work mentioned before based on
hi>
study of the ·social life of the Oraon and Munda tribes living in
the ~ity of Ranchi points out that a. good number of cases of
marnage between tribals and non-tribals have occurred and that
in his investigation he came across 53 cases of non-tribal males
marrying tribal girls.
He points out that greater percentage of
Jove marriages and marriages by 'Kept' have been socially disapproved while 83.3 % and 100)~ of arranged and legal (civil)
marriages have been approved.
(See pages 102-103).
We may how deal with the evidence produced by the partieJ
on the above points. P.W. 1 who was working as District We!·
fare Officer in May 1970 at Ranchi and who belongs to. the
l\lunda tribe stated that if a Munda male married a non-Munda
girl and such marriage was accepted by the society it would be
a \'alid and proper marriage.
The wife would, therefore,
be
accepted as a member of the tribe.
He had himself married an
Oraon girl and his wife though a non-Munda has been accepted
as a member of the Munda tribe.
He forther deposed that if the
Munda married a non-Mt•nda a feast is given and if the elders
of the society accept the marriage and participate in the feast
that by itself would show that the tribal society has accepted the
marriage and the wife has become a member of the tribe. P.W. 2
who is a nephew of the late Shri Jaipal Singh gave details of the
ceremonies which were performed when the marriage between his
uncle and the respondent took place. After the performance of
those ceremonies the members of the tribe and the family declared that the respondent had been accepted as a member of the
tribe. He himself is married to a non-Munda girl though he was
married according to Munda marriage rights as welf as accord·
ing to Hindu law. P.W. 3 who was at the material time working
as Assistant Director in Sociology, Bihar Tribal Welfare Insti·
tute, stated that he had been doing research on the subject of
Bihar Tribal Marriage and Family Transformation with special
reference to Family law. One of his major duties was to ascertain from the members of different tribes facts relating to the subiect of his research.
According to his evidence a Munda male
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c;.n marry a non-Munda girl.
After adopting a. special procedure in some cases a non-Munda wife is accepted as a member
of the tribe. · A certain procedure or formality has to be gone
throu~h. The council of elders of the tribal people has to be
consulted and the special reason for the marriage is to be stated.
Then various rituals are gone through and the marriage is. allow·
ed by the elders.
He gave instances where a Munda male had
married a non-Munda girl and their marriage. had been ac.cepted
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by the tribal people. One of these instances given by _him related
to persons belonging to the Santhals and Ho tribes.
He main,
t:iincd that the customs prevalent among these tribes were broad•
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N. B. HORO v. SMT. JAIPAL SINGH (Grover, J.)
373
ly the same as among the Mundas.
In cross-examination he
stated that he had met the members of the Munda elder council
and he had remained in touch with that council since 1952. He
had made special research of Jojo Hatu which was a Munda vii·
!age. . He claimed to have submitted a report to the government
m which he had collected hundreds of cases where a girl of a
particular tribe had married outside her tribe. P.W. 4 was the
Superintendent of the Anthropological Survey of India, Ministry
of Education.
As an Anthropologist he had to undertake full
study in different parts of India mostly among the tribal community. He had studied Munda tribal custom which assignment
had been given to him in 1965-66. In course ol the research he
found that a Munda could marry a non-Munda girl even before
1954. He gave three. kinds of unusual marriages one of which
was where a Munda male married a non-Munda female.
The
social consequences of that marriage was called Jati Bora.
That meant that the Munda male had
committed an offence
against the whole community. Normally he would be ostracised
along with his family but there was a process by which he and
his wife could be admitted into the community. This process
was known 'Niyar' which means "to bring in or take in". The
offending party invites the members of the Parha gives. them a
feast at which a white goat is sacrificed and the blood is smeared
on the body of the boy and the girl along with Tiirinolik and
then they are allowed to sit along with the members of the community in the same Pankti. After that they. are formally considered as members of the community. He was specifically asbd
a question with regard to the manner in which a Munda boy
marrying a non-Munda girl would be accepted by the ·commu·
nity and his reply was that in his opinion the Parha was the
ultimate authority in the matter of acceptance of a non-Munda
girl in the community. If a Parha accepted her that was final.
In cross-examination he· stated that if a marriage of1 ~e nature
under discussion is not approved by Parha he did not think it
would be accepted by the members of the society. It may be
mentioned that the evidence of this witness has been ~ubjected
to a good deal criticism by Mr. Anthony for the reason that he
was only expressing an opinion on the last matter and was not
G making a definite statemel)t of fact. P.W. 5, who was attached
fo 'the office of the Deputy Comtnissioner, Palamau, gave an account of the ceremonies which were performed of the marriage
between the respondent ·and late Shri J aipal Sin11h. Accordin11 to
him the elders of the communitv unanimously decided that since
permission had been ~ven bY the elders they would be taken as
H members of the tribe. He denied the su22estion that it was on.
account of the inlluence of late Shri J alpal Sin2h that Pahans had
!liven sanction to the marriage. Accordin2 to him there had been
other cases also where such sanction had been given.
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SUPREME COURT REPORTS
[1972] 3 S.C.R.
P.W. 8 who claimed to be a Parha Raja of three Parhas, viz.,
Takara Parha, Sada Parha and Sagha Parha comprising 36 vil·
!ages also gave evidence about the ceremonies which were performed at the marriag~ of late Shri Jaipal Singh with the respon·
dent. After the performance of the ceremonies the Samaj of the
Munda tribe accepted the marriage, according •to him. He deposed
to oth·~r instances wh~re Munda had married non-Mundll'S.
He
had attendeg a marriage of a Munda who had married a Ho girl.
Sanction was given by the elders to that marriage. It is unnecessary tc <efer to the evidence of P.W. JO who is also a Pahan and
who claimed to have been present at the time of the marriage in
question. He made a statement which has been subjected to justi·
liable criticiLm by Mr. Anlhony about the document Exht-3. His
evidence, •therefore, does not deserve consideration.
Out of the
witnesses examined on bo~half of the respondent mention may be
made of the statement of Shri Horo himself who appeared as
R.W. 6. After stating that the late Shri Jaipal Singh who was a
leader of the Jharkhand Party and was an Adivasi and a Munda
professing the Christian religion, he affirmed that the respondent
did not have Jhe right and status of a Munda on the basis of estab·
lished custom. He admitted that there was a custom that a Munda
who had been ex-communicated from the tribe could be taken
back but ac£_ording to him that person mus•t be a Munda and no
non-Munda could be accepted a1 a member of the tribe.
Th.~
Munda could of couroo marrv a non-Munda but in the manner in
which the Munda usuallv married a Munda. The custom among
·the Mundas is chan2in2 and it is dvnamic and not static. The
other witnesses produced bv Shri Horo are not impressive and do
not afford much assistance in decidinl!' the points under discussion.
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AccordiDI!' to the observations of the High Court Shrl Horo
did not examine anv witness on his behalf who could say that he
had made a special s!udv and research of the marriage custom of
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the Munda tribe and that such a marria2e was not acceptable In the
present times in spite of all the chan11:es which have taken place In
the life and social structure of the ·community owing to tho Im·
pact of the various factors which have been mentioned In the
authoritative
studies of eminent Anthropologists
mentioned
before.
Our attllntlon has been drawn by Mr. Anthony to certain
decisions for the .proposition that in a tribe which is endogam<!us
birth alone can confer the status of membership of the tribal com·
munity. In V. V. Girl v. D. Suri Dora &: Others( 1)
one of the
questions raised, was whether respondent No. I in that case had
ceased to be a member of the Schedule Tribe at the material time
because he .had become a Kshtriya. This court obserwd that it
(ll 21 B. L. R. 188,
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