# RAMESHBHAI DABHAI NAIKA v. STATE OF GUJARAT & OTHERS

- **Citation:** [2012] 2 S.C.R. 104
- **Court:** Supreme Court of India
- **Decided:** 2012-01-18
- **Case number:** Civil Appeal No. 654 of 2012
- **Bench:** Aftab Alam, Ranjana Prakash Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rameshbhai-dabhai-naika-v-state-of-gujarat-others-28110
- **Pages:** 35

## Headnote

SOCIAL STATUS CERT/FICA TE: Scheduled Castel
Tribe - Status of a person, one of whose parents belongs to
C the Scheduled Caste/Tribe and the other comes from the
upper castes, or more precisely does not come from
Scheduled Caste/Tribe and entitlement of a person from such
parents to the benefits of affirmative action sanctioned by the
Constitution - Held: Rule laid down in *Valsamma Paul,
o **Punit Rai and ***Anjan Kumar is not an inflexible rule of
general application that in all cases and regardless of other
considerations, the offspring of an inter-caste marriage or a
marriage between a tribal and a non-tribal would take his/her
caste from the father - A careful examination of these cases
E together with some other decisions of Supreme Court would
clearly show that what was said in Valsamma in a certain
context was rather mechanically and inappropriately extended
and applied to different other fact situations as the law laid
down in Valsamma - In an inter-caste marriage or a marriage
F between a tribal and a non-tribal, the determination of the
caste of the offspring is essentially a question of fact to be
·decided on the basis of the facts adduced in each case - In
such marriages, there may be a presumption that the child
has the caste of the father - This presumption may be stronger
G in case where in the inter-caste marriage or a marriage
between a tribal and a non-tribal the husband belongs to a
forward caste - But by no means, the presumption is
conclusive or irrebuttable and it is open to the child of such
marriage to lead evidence to show that he/she was brought
H
104
RAMESHBHAI DABHAI NAIKA v. STATE OF
105
GUJARAT & ORS.
up by the mother who belonged to the scheduled caste/ A
scheduled tribe - In such situation, merely by virtue of being
the son of a forward caste father, he did not have any
advantageous start in life but on the contrary suffered the
deprivations, indignities, humilities and handicaps like any
other member of the community to which his/her mother
B
belonged - In the case in hand the tribal certificate of the
appellant was cancelled without adverting to any evidences
and on the sole ground that he was the son of a Kshatriya
father - The orders passed by the High Court and the Scrutiny
Committee, therefore, cannot be sustained - Matter remitted c
to Scrutiny Committee to take fresh decision - Evidence -
Presumption.
The mother of the appellant was a Nayak, one of the
scheduled tribes and the appellant himself and his other
siblings were also married to Nayaks. His father was a D
non-tribal. The Scrutiny Committee cancelled the tribal
certificate earlier obtained by the appellant on the sole
ground that his father was a non-tribal, belonging to the
Hindu caste Kshatriya. The High Court proceeded on the
basis that the issue was settled by the decisions of the
E
Supreme Court in *Valsamma Paul v. Cochin University
followed by **Punit Rai v. Dinesh Chaudhary and ***Anjan
Kumar v. Union of India and upheld the order of the
Committee.
F
The question which arose for consideration in the
instant appeal was as to what would be the status of a
person, one of whose parents belongs to the scheduled
castes/scheduled tribes and the other comes from the
upper castes, or more precisely does not come from
G
scheduled castes/scheduled tribes and what would be
the entitlement of a person from such parents to the
benefits of affirmative action sanctioned by the
Constitution.
Allowing the appeal, the Court
H
106
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
HELD: 1.1. The orders passed by the High Court and
the Scrutiny Committee are set aside and the case is .
remitted to the Scrutiny Committee to take a fresh
decision on the basis of the evidences that might be led
by the two sides. The High Court seemed to have read
B the decisions in *Valsamma Paul, **Punit Rai and ***Anjan
Kumar as laying down the rule that in all cases and
regardless of other considerations, the offspring of an .
inter-caste marriage or a marriage betwee

## Text

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A
B
[2012] 2 S.C.R. 104
RAMESHBHAI DABHAI NAIKA
v.
STATE OF GUJARAT & OTHERS
(Civil Appeal No. 654 of 2012) ·
JANUARY 18, 2012
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]
SOCIAL STATUS CERT/FICA TE: Scheduled Castel
Tribe - Status of a person, one of whose parents belongs to
C the Scheduled Caste/Tribe and the other comes from the
upper castes, or more precisely does not come from
Scheduled Caste/Tribe and entitlement of a person from such
parents to the benefits of affirmative action sanctioned by the
Constitution - Held: Rule laid down in *Valsamma Paul,
o **Punit Rai and ***Anjan Kumar is not an inflexible rule of
general application that in all cases and regardless of other
considerations, the offspring of an inter-caste marriage or a
marriage between a tribal and a non-tribal would take his/her
caste from the father - A careful examination of these cases
E together with some other decisions of Supreme Court would
clearly show that what was said in Valsamma in a certain
context was rather mechanically and inappropriately extended
and applied to different other fact situations as the law laid
down in Valsamma - In an inter-caste marriage or a marriage
F between a tribal and a non-tribal, the determination of the
caste of the offspring is essentially a question of fact to be
·decided on the basis of the facts adduced in each case - In
such marriages, there may be a presumption that the child
has the caste of the father - This presumption may be stronger
G in case where in the inter-caste marriage or a marriage
between a tribal and a non-tribal the husband belongs to a
forward caste - But by no means, the presumption is
conclusive or irrebuttable and it is open to the child of such
marriage to lead evidence to show that he/she was brought
H
104
RAMESHBHAI DABHAI NAIKA v. STATE OF
105
GUJARAT & ORS.
up by the mother who belonged to the scheduled caste/ A
scheduled tribe - In such situation, merely by virtue of being
the son of a forward caste father, he did not have any
advantageous start in life but on the contrary suffered the
deprivations, indignities, humilities and handicaps like any
other member of the community to which his/her mother
B
belonged - In the case in hand the tribal certificate of the
appellant was cancelled without adverting to any evidences
and on the sole ground that he was the son of a Kshatriya
father - The orders passed by the High Court and the Scrutiny
Committee, therefore, cannot be sustained - Matter remitted c
to Scrutiny Committee to take fresh decision - Evidence -
Presumption.
The mother of the appellant was a Nayak, one of the
scheduled tribes and the appellant himself and his other
siblings were also married to Nayaks. His father was a D
non-tribal. The Scrutiny Committee cancelled the tribal
certificate earlier obtained by the appellant on the sole
ground that his father was a non-tribal, belonging to the
Hindu caste Kshatriya. The High Court proceeded on the
basis that the issue was settled by the decisions of the
E
Supreme Court in *Valsamma Paul v. Cochin University
followed by **Punit Rai v. Dinesh Chaudhary and ***Anjan
Kumar v. Union of India and upheld the order of the
Committee.
F
The question which arose for consideration in the
instant appeal was as to what would be the status of a
person, one of whose parents belongs to the scheduled
castes/scheduled tribes and the other comes from the
upper castes, or more precisely does not come from
G
scheduled castes/scheduled tribes and what would be
the entitlement of a person from such parents to the
benefits of affirmative action sanctioned by the
Constitution.
Allowing the appeal, the Court
H
106
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
HELD: 1.1. The orders passed by the High Court and
the Scrutiny Committee are set aside and the case is .
remitted to the Scrutiny Committee to take a fresh
decision on the basis of the evidences that might be led
by the two sides. The High Court seemed to have read
B the decisions in *Valsamma Paul, **Punit Rai and ***Anjan
Kumar as laying down the rule that in all cases and
regardless of other considerations, the offspring of an .
inter-caste marriage or a marriage between a tribal and a
non-tribal would take his/her caste from the father. In the
c three decisions, there were indeed observations (though
by no means forming the ratio of the decisions) that may
lend credence to such a view but the question is whether
it can be said to flow from those decisions, as an
inflexible rule of general application, that in every case of
0 inter-caste marriage or marriage between a tribal and a
non-tribal, the offspring must take his/her caste from the
father. The clear answer is in the negative. A careful
exarTiination of the three cases together with some other
decisions of this Court would clearly show that what was
said in *Valsamma in a certain context has been rather
E mechanically and inappropriately extended and applied
to different other fact situations as the law laid down in
*Valsamma. [Paras 4] [110-G-H; 111-A-B]
*Valsamma Paul v. Cochin University and others, (1996)
F 3 SCC 545: 1996 (1) SCR 128; **Punit Rai v. Dinesh
Chaudhary (2003) 8 SCC 204: 2003 (2) Suppl. SCR 743;
***Anjan Kumar v. Union of India and others (2006) 3 SCC
257: 2006 (2) SCR 212 - relied on.
·
G
Constitutional Law of India Fourth Edition By Seervai
- referred to.
1.2. The view expressed in *Valsamma judgment that
in an inter-caste marriage or a marriage between a tribal
and a non-tribal the woman must in all cases take her
H caste. from the husband, as a rule of Constitutional Law
RAMESHBHAI DABHAI NAIKA v. STATE OF
107
GUJARAT & ORS.
is a proposition, the correctness of which is not free from
A
doubt. And in any case it is not the ratio of the *Valsamma
decision and does not make a binding precedent. Taking
it to the next logical step and to hold that the off-spring
of such a marriage would in all cases get his/her caste
from the father is bound to give rise to serious problems.
8
Take for instance the case of a tribal woman getting
married to a forward caste man and who is widowed or
is abandoned by the husband shortly after marriage. She
goes back to her people and the community carrying with
her an infant or may be a child still in the womb. The child
C
is born in the community from where her mother came
and to which she went back and is brought up as the
member of that community suffering all the deprivations,
humiliations, disabilities and handicaps as a member of
the community. It is difficult to hold that the child would
0
have the caste of his father and, therefore, not entitled to
any benefits, privileges or protections sanctioned by the
Constitution. In an inter-caste marriage or a marriage
between a tribal and a non-tribal the determination of the
caste of the offspring is essentially a question of fact to
be decided on the basis of the facts adduced in each
E
case. In an inter-caste marriage or a marriage between a
tribal and a non-tribal there may be a presumption that
the child has the caste of the father. This presumption
may be stronger in the case where in the inter-caste
marriage or a marriage between a tribal and a non-tribal
F
the husband belongs to a forward caste. But by no
means the presumption is conclusive or irrebuttable and
it is open to the child of such marriage to lead evidence
to show that he/she was brought up by the mother who
belonged to the scheduled caste/scheduled tribe. By G
virtue of being the son of a forward caste father he did
not have any advantageous start in life but on the
contrary suffered the deprivations, indignities, humilities
and handicaps like any other member of the community
to which his/her mother belonged. Additionally, that he
H
108
SUPREME COURT REPORTS
[2012] 2 S.C.R ..
A was always treated a member of the community to which
her mother belonged not only by that community but by
people outside the community as well. In the case in hand
the tribal certificate has been taken away from the
appellant without adverting to any evidences and on the
8 sole ground that he was the son of a Kshatriya father. The
orders passed by the High Court and the Scrutiny
Committee, therefore, cannot be sustained. [Paras 35-37,
43-44) [134-F-H; 135-A-C; 137-E-H; 138-A-D]
Rajendra Shrivastava vs. State of Maharashtra (2010)
C 112 Born LR 762; Indira v. State of Kerela AIR 2006.Kel.1;
Kendriya Vidyalaya Sangathan v. Shanti Acharya Sisingi
176(2011) DLT 341 - approved.
Sobha Hymavathi Devi v. Setti Gangadhara Swamy &
D Others (2005) 2 SCC 244: 2005 (1) SCR 848; Bhoobum
Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 MIA
279; Lu/loobhoy Bappoobhoy Cassidass Moolchund v.
Cassibai (1879-80) 71A 212; V. V. Giri v. Dippala Suri Dora
and others (1960) 1 SCR 426; Indra Sawhney v. Union of
E India 1992 supp (3) SCC 217: 1992 ( 2 ) Suppl. SCR 454;
State of A.P. v. M. Radha Krishna Mwthy (2009) 5 SCC 117:
2009 (4) SCR 67; Arabinda Kumar Saha v. State of Assam
2001 (3) GLT 45 - referred to
Case Law Reference:
F
,1996 (1) SCR 128
relied on
Para 2
2003 (2) Suppl. SCR 743 relied on
Para 2
2006 (2) SCR 212
relied on
Para 2
G
2005 (1) SCR 848
referred to
Para 10
2003 (2) Suppl. SCR 743 referred to
Para 14
(1865) 10 MIA 279
referred to
Para 23
H
(1879-80) 71A 212
referred to
Para 23
RAMESHBHAI DABHAI NAIKA v. STATE OF
109
GUJARAT & ORS.
(1960) 1SCR 426
referred to
Para 29
(2010) 112 Born LR 762
approved
Para 31
1992 (2) Suppl. SCR 454 referred to
Para 33
2009 (4) SCR 67
referred to
Para 33
AIR 2006.Kel.1
approved
Para 38
176(2011) DLT 341
approved
Para 41
2001 (3) GLT 45
referred to
Para 42
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 654
of 2012.
From the Judgment & Order dated 11.01.201 O of the High
Court of Gujarat at Ahmadabad in LPA No. 392 of 2008.
Aman Ahluwalia, Sanjay R. Hegde, S. Nithin, Tenzln
Tsering, Anil Kumar Mishra, Sanjeev Kumar, Jitender K.
Pandey, Rajiv Pandey, Venkateswara Rao Anumolu,
Hemantika Wahi, Jesal, Suveni Bane~ee, Rojabin Pradhan for
the appearing parties.
The Judgment of the Court was delivered by
AFTAB ALAM, J. 1. Leave granted.
A
B
c
D
E
2. The question that once again arises before this Court
F
is what would be the status of a person, one of whose parents
belongs to the scheduled castes/scheduled tribes and the other
comes from the upper castes, or more precisely does not come
from scheduled castes/scheduled tribes and what would be the
entitlement of a person from such parents to the benefits of G
affirmative action sanctioned by the Constitution. The Gujarat
High Court has proceeded on the basis that the issue is settled
by the decisions of this Court in Va/samma Paul v. Cochin
University and others, (1996) 3 SCC 545 followed by Punit Rai
v. Dinesh Chaudhary, (2003) 8 SCC 204 and Anjan Kumar v.
H
110
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A Union of India and others, (2006) 3 SCC 257. On the strength
of those three decisions the High Court upheld the order passed
by the Scrutiny Committee cancelling the tribal certificate earlier
obtained by the appellant on the sole ground that his father was
a non-tribal, belonging to the Hindu caste Kshatriya. The High
B Court did not advert to the fact that the mother of the appellant
was undeniably a Nayak, one of the scheduled tribes and the
appellant himself and his other siblings were also married to
Nayaks. The High Court also did not refer to the evidences
adduced by the appellant on the question of his upbringing as
c a member of the Nayak community and his acceptance in that
community (or for that matter the contra evidence produced by
the respondent questioning his claim to be a member of the
scheduled tribe). In view of the fact that his father was a nontribal, the High Court deemed everything else as of no
0 relevance and declined to record any finding on whether the
appellant was, in fact, brought up as a tribal and, consequently,
shared all the indignities and handicaps and deprivations
normally suffered by the tribal communities.
3. The appellant, thus, lost his tribal certificate and the Fair
E Price shop that was allotted to him on that basis. He has now
brought the matter to this Court making the grievance that the
High Court order does not impact him alone but as a result of
the order of the High Court his children too, though undisputedly
F
born to a tribal mother, are bound to lose their tribal identity.
4. The High Court seems to have read the decisions in
Valsamma Paul, Punit Rai and Anjan Kumar as laying down
the rule that in all cases and regardless of other considerations
the offspring of an inter-caste marriage or a marriage between
G a tribal and a non-tribal would take his/her caste from the father.
In the three decisions there are indeed observations (though
by no means forming the ratio of the decisions) that may lend
credence to such a view but the question is "Yhether it can be
said to flow from those decisions, as an inflexible rule of
H general application, that in every case of inter-caste marriage
RAMESHBHAI DABHAI NAIKA v. STATE OF
111 .
GUJARAT & ORS. [AFTAB ALAM, J.]
or marriage between a tribal and a non-tribal, the offspring
A
must take his/her caste from the father. The clear answer, to
our mind, is in the negative. A careful examination of the three
cases together with some other decisions of this Court would
clearly show that what was said in Valsamma in a certain
context has been rather mechanically and inappropriately
B ·
extended and applied to different other fact situations as the
law laid down in Valsamma.
5. Valsamma was a Syrian Catholic woman (forward
caste) who married a Latin Catholic man (backward class) and
the question arose whether by virtue of her marriage she was
C
entitled to appointment to a post of lecturer that was reseNed
for Latin Catholics (Backward Class Fishermen). The full bench
of the Kerala High Court held that though Valsamma was
married according to the Canon law, being a Syrian Christian
by birth, she could not by marriage with a Latin Catholic D
become a member of that class nor could she claim the status
of backward class by marriage. Dealing with the
consequences of a woman marrying outside her caste the
Court relied upon two old Privy Council decisions of the
nineteenth century and came to hold that when a woman
E
marries outside her caste, she becomes a member of the
caste of the husband's family. In paragraph 31 of the judgment
in Valsamma the Court said:
"It is well-settled law from Bhoobum Moyee Debia v. Ram
F
Kishore Acharj Chowdhry (1865) 10 MIA 279: 3 WR 15
that judiciary recognized a century and a half ago that a
husband and wife are one under Hindu law, and so long
as the wife suNives, she is half of the husband. She is
'Sapinda' of her husband as held in Lulloobhoy
Bappoobhoy Cassidass Moolchund v. Cassibai (1879G
80) 71A 212. It would, therefore, be clear that be it either
u_nder the Canon law or the Hindu law, on marriage the
wife becomes an integral part of husband's marital home
entitled to equal status of husband as a member of the
H
112
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
·family. Therefore, the lady, on marriage, becomes a
member of the family and thereby she becomes a member
of the caste to which she moved. The caste rigidity breaks
· down and would stand no impediment to her becoming a
member of the family to which the husband belongs and
B
she gets herself transplanted."
(emphasis added)
6. Having said that in an inter-caste marriage the woman
takes on the caste of her husband, the Court proceeded to
C
consider the next question which was, ''whether a lady marrying
a Scheduled Caste, Scheduled Tribe or OBC citizen, or one
transplanted by adoption or any other voluntary act, ipso facto,
becomes entitled to claim reservation under Article 15(4) or
16(4) as the case may be?" This question the Court firmly
D
answered in the negative and in paragraph 34 of the judgment
observed and held as follows:-
E
F
G
H
"In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu
Barde 1995 supp. (2) SCC 549 and R. Chandevarappa
v. State of Kamataka (1995) 6 SCC 309: JT (1995) 7 SC
93, this Court had held that economic empowerment is a
fundamental right to the poor and the State is enjoined
under Articles 15(3), 46 and 39 to provide them
opportunities. Thus, education, employment and economic
empowerment are some of the programmes the State has
evolved and also provided reservation in admission into
educational institutions, or in case of other economic
benefits under Articles 15(4) and 46, or in appointment to
an office or a post under the State under Article 16(4).
Therefore, when a member is transplanted into the Dalits,
Tribes and OBCs, he/she must of necessity also have had
undergone the same handicaps, and must have been
subjected to the same disabilities, disadvantages,
indignities or sufferings so as to entitle the candidate to
avail the facility of reservation. A candidate who had the
RAMESHBHAI DABHAI NAIKA v. STATE OF
113
GUJARAT & ORS. [AFTAB ALAM, J.]
advantageous start in life being born in. Forward Caste
A
and had march of advantageous life but is transplanted in
Backward Caste by adoption or marriage or conversion,
does not become eligible to the benefit of reservation
either under Article 15(4) or 16(4), as the case may be.
Acquisition of the status of Scheduled Caste etc. by
B
volun~ary 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. "
c
(emphasis added)
7. Proceeding further, in paragraph 35 of the judgment,
the Court expressly held that acceptance by the community, a
test that was earlier applied by the Court in cases of conversion
and reconversion, would have no application to judge
D
Valsamma's claim to the post reserved for Latin Catholics by
virtue of her marriage in that caste.
8. The court, thus, gave two reasons for disallowing
Valsamma, the benefit of reservation under Articles 15 & 16
E
of the Constitution; first, being born in a forward caste she had
an advantageous start in life and she had not gone through the
same disabilities, disadvantages, indignities or sufferings as
other members of the backward class and secondly claiming
the benefits of reservation by getting transplanted into a
backward class by means of marriage, that is to say, through
voluntary mobility would amount to a fraud on the Constitution.
9. On a careful reading of the judgment it becomes clear
that the ratio of the Valsamma decision lies in paragraph 34
F
of the judgment as quoted above. What was said earlier in
G
paragraph 31 of the judgment was in the facts of that case and
it would be an error to take it as the ratio of the decision. More
. importantly, it would be very wrong to take paragraph 31 of the
Valsamma judgment as a premise for drawing the corollary or
the deduction that the child born from an inter-caste marriage
H
114
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
or a marriage between a tribal and a non-tribal would invariably
take his caste from the father. But before examining Valsamma
in any greater detail it would be useful to see how it was used,
applied and "improved upon" in later decisions of the Court.
· ·10. Valsamma was a case of reservation under Articles
8
15 & .16 of the Constitution. A case of reservation of seats in
the Legislative Assembly under Article 332 of the Constitution
came to be considered by a three judge bench of the Court in
Sabha Hymavathi Devi v. Setti Gangadhara Swamy & Others
(2005) 2 sec 244. The case of Sobha Hymavathi Devi, in
C certain aspects on facts, is very similar to Valsamma. The
election of Sobha to the Andhra Pradesh Legislative Assembly
from· a constituency reserved for Scheduled Tribes was
challenged on the ground that she belonged to a forward
community, Patnaik Sistu Karnam, and was, therefore, not
D
qualified to contest the election from the constituency reserved
for Scheduled Tribes. Denying the allegations of the election
petitioner Sobha raised three pleas; first, both her parents
belonged to Scheduled Tribes; secondly, in case her father was
held to come from a forward caste she was actually brought
E
up by her mother, who undeniably belonged to a scheduled
tribe, as a member of the tribal community and thirdly she
marri~d a Scheduled Tribe person and, therefore, became a
member of the Scheduled Tribe. She had, therefore, the status
of a Scheduled Tribe and was qualified to contest the election
F
from .the constituency reserved for the Scheduled Tribes. The
Court examined Sobha's first and second pleas fully in light of
the factual evidence and came to reject the two pleas on the
basis of the findings of fact. Dealing with the second plea, in
paragraph 8 of the judgment, the Court held and observed as
G follows:-
H
"~laborating 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
RAMESHBHAI DABHAI NAIKA v. STATE OF
115
GUJARAT & ORS. [AFTAB ALAM, J.]
her mother belonged and that she had married a person
A
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
B
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 recognised
as a member belonging to the Bhagatha community, c
cannot be accepted in the face of the evidence discussed
by the High Court including the documentary evidence
relied on by it. The document Ext. 10 and the entry therein
marked as Ext. X-11 relating to the appellant, show her
caste as Sistu Karnam and not as Bhagatha. This entry
0
was at an undisputed point of time. Moreover, the evidence
also shows that she was always being educated at
Vishakhapatnam and she was never living as a .tribal in
Bhimavaram village to which her mother's family belongs.
There is no reason for us to differ from the conclusion of
the High Court on.this aspect."
E
(emphasis added)
11. It was only then that the Court considered the third plea
of Sabha that having married a person belonging to a
F
Scheduled Tribe she had acquired membership of that
community and consequently she must be treated as a member
of the Scheduled Tribe. Dealing with this plea the Court referred
to the decision in Valsamma and applied it to the case of
reservation of a seat in the Legislative Assembly under Article
G
332 of the Constitution. In Paragraph 10 of the judgment the
Court held and observed as follows:-
"Even otherwise, we have difficulty in accepting the position
that a non-tribal who marries a tribal could claim to contest
a seat reserved for tribals. Article 332 of the Constitution
H
A
B
c
D
E
F
G
116
SUPREME COURT REPORTS
[2012) 2 S.C.R.
speaks of reservation of seats for Scheduled Tribes in
Legislative Ass~mblies. The object is clearly to give
representation in the Legislature to Scheduled Tribe
candidates, considered to be deserving of such special
protection. To permit a non-tribal under cover of a marriage
to contest such a seat would tend to defeat the very object
of such a reservation. The decision of this Court in
Valsamma Paul v. Cochin University supports this view.
Neither the fact that a non-backward female married a
backward male nor the fact that she was recognised by
the community thereafter as a member of the backward
community, was held to enable a non-backward to claim
reservation in terms of Article 15(4) or 16(4) of the
Constitution .... Thereafter, this Court noticed that
recognition by the community was also important. Even
then, this Court categorically laid down that the recognition
of a lady as a member of a backward community in view
of her marriage would not be relevant for the. purpose of r
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."
(emphasis added)
12. What is of importance in Sobha Hymavathi Devi is that
the Court did not take the fact that Sobha's father was a man
of forward caste as conclusive of her caste status. The Court
H
RAMESHBHAI DABHAI NAIKA v. STATE OF
117
GUJARAT & ORS. [AFTAB ALAM, J.]
did not shut out the plea raised by Sobha that she must be
A
considered as belonging to the scheduled tribe because her
mother who was herself a tribal brought her up as a member
of her community and raised her as a tribal even though her
father might have come from a forward caste. On the contrary
the Court examined the plea raised by Sobha in light of
B
evidences adduced by the parties and negated it on the basis
of a pure finding of fact. Though the Court referred to and
approved Valsamma for rejecting Sobha's plea that she had
acquired the status of a tribal by virtue of her marriage to a tribal
man, it did not take Valsamma as an authority that in a c
marriage between a tribal and a non-tribal, the caste of the
father would be determinative of the caste of the child.
13. The third plea raised by Sobha in support of her being
a tribal and the claim of Valsamma were both based on their
voluntary action in marrying a tribal man. In both cases the Court
D
held that getting transplanted into the tribal community through
voluntary mobility cannot be the basis for the Forward caste/
non-tribal woman to avail of the benefits of reservation under
Article 15 & 16 (in Valsamma) or under Article 332 of the
Constitution (in Sobha Hymavathi Devi). But in neither of the
E
two cases the question of a child born of an inter-caste marriage
or a marriage between a tribal and a non-tribal was directly in
issue.
14. This question came up directly for consideration in
F
Punit Rai v. Dinesh Chaudhary (2003) 8 SCC 204. The
election of Dinesh Chaudhary (the respondent in the appeal
before this Court) to Bihar Legislative Assembly from a
constituency reserved for scheduled castes was challenged on
the ground that he was born to Kurmi parents and he did not
G
belong to any scheduled castes. The respondent did not deny
that his father Bhagwan Singh was a Kurmi and he was married
to a Kurmi woman. He, however, set up the case that Bhagwan
Singh had taken a second wife Deo Kumari Devi who was a
Pasi (scheduled caste) and he was born to Deo Kumari Devi
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A from Bhagwan Singh and he was, thus, fully eligible to contest
from the reserved constituency. He also relied upon a circular
issued by the State of Bihar according to which a child born to
a non-scheduled caste father and a scheduled caste mother
would be counted in the category of scheduled caste. A threeB judge bench of the Court before which the case came up for
hearing handed down two separate, though concurring,
judgments, one by Brijesh Kumar, J., speaking for himself and
for V.N. Khare, CJ, and the other by Sinha, J. It is significant to
note that the judgment by Brijesh Kumar,J. is based on the
c finding that the respondent failed to establish that Bhagwan
Singh had taken a Pasi woman as the second wife and he was
born to her from Bhagwan Singh. The Court held that the fact
that Bhagwan Singh was a Kurmi and he was married to a
Kurmi woman being admitted, the election petitioner had
0 discharged the onus and the burden now lay upon the
respondent to establish that Bhagwan Singh had marri~d
second time and his second wife was a Pasi who had given
birth to the respondent and the . respondent had completely
failed to establish that. In paragraphs 14 and 15 of the judgment
E by the two judges it was observed and held as follows:
"14. The case of the parties is clear from their pleadings
and the evidence adduced by them as indicated above.
The petitioner challenged the status of respondent Dinesh
Chaudhary as a Scheduled Caste person belonging to the
F
SC. community. Precisely what was indicated in support
of that case is that the father of Dinesh Chaudhary and
Naresh Chaudhary is Bhagwan Singh who is Kurmi by
caste married to Jago Devi, also a Kurmi lady. The High
Court has also observed that a person born in a Kurmi
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family normally would be presumed that he is Kurmi by
caste. In this background the initial burden of the petitioner
would stand discharged and it would shift upon the
respondent to prove his case which, in normal course of
things, would be and is within his special knowledge. A
H
case wtiich has been set up by the respondent through his
RAMESHBHAI DABHAI NAIKA v. STATE OF
119
GUJARAT & ORS. [AFTAB ALAM, J.]
witnesses as well, that his father had taken a fancy to Deo
A
Kumari Devi, a resident of Village Adai, who is Pasi by
caste and married her, who gave birth to two children
including the respondent, would normally be not in the
knowledge of the people in general, particularly when
according to the case of the respondent himself Jago Devi
B
lived in another village and she was nev.er brought from
there by Bhagwan Singh. More so, when Bhagwan Singh,
a Kurmi by caste, is living with his wife Jago Devi, also a
Kurmi, in their village Jehanabad. The best evidence, as
also according to the High Court to prove the case of the c
respondent, was to produce Bhagwan Singh and Oeo
Kumari Devi but they have been withheld after being cited
as witnesses for the respondent. These facts clearly make
out a case for drawing an adverse inference that in case
they had been produced they would not have supported
D
the case of the respondent. Kundan Lal Ralfaram v.
Custodian, Evacuee Property AIR .1961 SC 1316, T.S.
Murugesam Pillai v. M. D. Gnana. Sambandha Pandara
Sannadhi AIR 1917 PC 6 and Thiru John v. Returning
Officer (1977) 3 sec 540, may also be referred on the
E
point.
·
15 ....... Apart from the above, the appellant had also
discharged his burden by proving the fact that the father
of Respondent 1 is Bhagwan Singh, a Kurmi by caste
married to Jago Devi, also a Kurmi by caste. The natural
F
inference in such circumstances would be that the
respondent would, in normal course of events, be a Kurmi
by caste. If there is anything contrary to the normal course
of events, as pleaded in this case, of another marriage of
Bhagwan Singh in some other village, namely, Adai with
G
Deo Kumari Devi who never came to live with Bhagwan
Singh in his village nor Bhagwan Singh ever lived there,
Such facts in the special knowledge of the respondent have
to be proved by him alone. The respondent was under duty
to prove his case both ways, namely, in view of the special
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A
B
c
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E
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knowledge of facts pleaded and again in view of the fact
that the appellant had discharged his initial burden of
showing that the respondent was Kurmi by caste being the
son of Bhagwan Singh, a Kurmi married to Jago Devi, also
a Kurmi. The other decision which has been referred to
on behalf of the respondent is reported in Dolgobinda
Paricha v. Nimai Charan Misra AIR 1959 SC 914. It in
·Connection with the fact that the evidence of the brother of
Deo Kumari Devi that Bhagwan Singh had married her,
was relevant for the purposes of relationship of one person
to another since the brother of Deo Kumari Devi, is a
person who is a member of the family or otherwise has
special means of knowledge of the particular relationship.
The decision is in reference to Section 50 of the Evidence
Act. It may be observed that the evidence of persons who
, belong to Village Adai including the brother of Deo Kumari
Devi have been examined by the respondent to establish
the allegation of marriage between Bhagwan Singh ancf
Deo Kumari Devi. Undoubtedly, the evidence of the brother
of Deo Kumari Devi would be relevant for the relationship
between Bhagwan Singh and Deo Kumari Devi but his
evidence would not be of any help, in view of the adverse
inference drawn under Section 114(g) of the Evidence Act
· 'due to withholding of the best evidence available on the
point. When the persons concerned are not coming forward
to the Court to depose about the alleged relationship and
an adverse inference has been drawn that if they had come
to the Court to depose, their evidence would have gone
against the respondent, in such circumstances, there is no
occasion to act upon the statement of OW 5, the brother
of Deo Kumari Devi or other witnesses."
(emphasis added)
15. Once again it is to be seen that the judgment by the
two judges went into the facts of the case in detail and
H considered the effect of the evidences led (or rather not led!)
RAMESHBHAI DABHAI NAIKA v. STATE OF
121
GUJARAT & ORS. [AFTAB ALAM, J.)
by the respondent in support of his case. And again it was on
A
i a finding of fact that the Court held that the respondent failed
to establish his scheduled caste status. The judgment by two
judges, like the decision in Sobha Hymavathi Devi, did not
proceed on the basis that the respondent would get his caste
from his father and his father being admittedly Kurmi the
B
respondent could not have a caste status other than Kurmi. The
Court did not disallow the respondent from taking the plea tha
he was the child of a Pasi mother and, thus, belonged to a schedul
ed caste. But in that endeavour the respondent failed on a ti
ding of fact. 16. It is equally important to note that the j c
dgment by the two judges does not rule out the possibility of
the child from an inter-caste marriage taking his/her cast
status from the mother, if such a provision was made
in a circular issued by the Government and, in paragraph
of the judgment, made the following observations:- "A pers
D
n born in a Kurmi family, which details have been provided,
would normally be taken to be a Kurmi by caste. But it is
only in special circumstances, as may have been provided
under a circular of the Government of Bihar, that the caste
of the mother would be taken as the caste of the children,
E
if she happens to be a Scheduled Caste, married to a
non-Scheduled Caste."
17. Sinha,J., the third member on the B.ench wrote a
separate, though concurring judgment. He applied the test of
F
acceptance by the community for rejecting the respondent's
claim that he qualified as a 'Pasi' (scheduled caste). In
paragraphs 33 and 34 of the judgment Sinha,J. observed as
follows-
"33. In the instant case there is nothing on record to show
G
that the respondent has ever been treated to be a member
of the Scheduled Caste. In fact evidence suggests that he
has not been so treated. He as well as his brothers and
1
other members of his family are married to persons
belonging to his own caste i.e. "Kurmi".
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34. There was no attempt on the part of the respondent
herein to bring on record any material to the effect that he
was treated as a member of the "Pasi" community.
Furthermore, no evidence has been brought on record to
· show that the family of the respondent had adopted and
B
had been practicing the customary traits and tenets of the
"Pasi" community."
C
D
Sinha; J., however, proceeded to ·make certain other
observations and in paragraph 27 of the judgment he said as
follciws:-
"27. The caste system in India is ingrained in the Indian .
·mind. A person, in the absence of any statutory law, would
inherit his caste from his father and not his mother even in
a case of inter-caste marriage."
(emphasis added)
And in paragraphs 41 and 42 of the judgment as under:-
'.'41. Determination of caste of a person is governed by the
E
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,
F
therefore, will be the determinative factor in absence of any
law."
Here there is no reference to Valsamma but the connection is
'
.
obvious. It is only the next logical step to what was said in
paragraph 31 of Valsamma. If as a result of inter-caste marriage
G the woman gets transplanted into the family of the husband and
takes her husband's caste it would logically follow that1:he·child.
born from the marriage can take his/her caste only from· the
father. We shall pr.esently consider the highly illogical
H
RAMESHBHAI DABHAI NAIKA v. STATE OF
123
GUJARAT & ORS. [AFTAB ALAM, J.]
consequences of this logical derivation but before that it needs
A
to be noticed that Sinha, J. rejected the government circular
also that provided that the caste of the mother might be taken
as the caste of the child. In the same paragraph (41) Sinha,J.
observed:
" Reliance, however, has been placed upon a circular
dated 3-3-1978 said to have been issued by the State of
Bihar which is in the following terms:
"Subject: Determination of the caste of a child born from
B
a non-Scheduled Caste Hindu father and a Scheduled
C
Caste mother.
Sir,
In the aforesaid subject as per instruction I have to
0
state for the determination of a child born from a nonscheduled Caste father and a Scheduled Caste mother,
upon deliberation it has been decided that the child born
from such parents will be counted in the category of
Scheduled Caste.
2. In such cases before the issue of caste certificate
there will be a legible enquiry by the Block Development
Officer, Circle Officer/Block Welfc~re Officer."
E
F
42. The said circular letter has not been issued by the
State in exercise of its power under Article 162 of the
Constitution of India. It is not stated therein that the
decision has been taken by the Cabinet or any authority
authorized in th.is behalf in terms of Article 166(3) of the
Constitution of India. It is trite that a circular letter being an
G
administrative instruction is not a law within the meaning
of Article 13 of the Constitution of India. (See Dwarka Nath
Tewari v. State of Bihar AIR 1959 SC 249)."
(emphasis added)
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18. He, thus, rejected the circular issued by the State of
Bihar as invalid and of no consequence. However, the judgment .
by the two judges, as seen above expressly acknowledged that
in special circumstances, as may be provided in the
Government Circular, the caste of the mother may be taken as
s the caste of the children. Therefore, the view taken by Sinha J.
on the circular is clearly at variance with the judgment of the
two Judges on that issue. On the question of the child inheriting
the caste of the mother the judgment by the two judges is silent
a~ the question did not arise for consideration in view of the
c finding of fact that the respondent's father, a kurmi, had not
married the pasi woman. It is, therefore, difficult to clothe the
observation by Sinha J. on this point with precedent value,
especially in view of the fact that the question did not arise at
all after the decision of the majority of two judges. Seervai in
0
his Constitutional Law of India, Fourth Edition, pages 26692673 esp. Para 25.102 explains that a 'decision' refers to the
determination of each question of law which arose and was ·
decided in that case.