RAMESHBHAI DABHAI NAIKAversusSTATE OF GUJARAT & OTHERS

                        [2012] 2 S.C.R. 104


A                 RAMESHBHAI DABHAI NAIKA
                                 v.
                STATE OF GUJARAT & OTHERS
                 (Civil Appeal No. 654 of 2012) ·

                        JANUARY 18, 2012
B
    [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
  inter-caste marriage or marriage between a tribal and a
0
  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
have the caste of his father and, therefore, not entitled to 0
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       A

    (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       B
    AIR 2006.Kel.1               approved           Para 38

    176(2011) DLT 341            approved           Para 41

    2001 (3) GLT 45              referred to        Para 42
                                                                  c
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 654
of 2012.

    From the Judgment & Order dated 11.01.201 Oof the High
Court of Gujarat at Ahmadabad in LPA No. 392 of 2008.
                                                                  D
    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.                                            E

    The Judgment of the Court was delivered by

    AFTAB ALAM, J. 1. Leave granted.

      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 non-
  tribal, the High Court deemed everything else as of no
  relevance and declined to record any finding on whether the
0
  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
  born to a tribal mother, are bound to lose their tribal identity.
F
        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 (1879-               G
     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:-

          "In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu
          Barde 1995 supp. (2) SCC 549 and R. Chandevarappa
E         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
F
          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,
G         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
H
       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. "

                                               (emphasis added)
                                                                       c

       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
                                                                       F
 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
  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:-

          "~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
H
     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
    116      SUPREME COURT REPORTS                  [2012) 2 S.C.R.


A        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
B        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
c        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
D
         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
E        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
F        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."
G
                                                  (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               H
    118        SUPREME COURT REPORTS                 [2012] 2 S.C.R.


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 three-
B 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
  discharged the onus and the burden now lay upon the
0
  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
G         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    H
    120     SUPREME COURT REPORTS                 [2012) 2 S.C.R.


A       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
B        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
c       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
D
         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
E        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
F        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."
G
                                                (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".                       H
    122       SUPREME COURT REPORTS                 [2012] i's.C.R.


A        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."

    Sinha; J., however, proceeded to ·make certain other
    observations and in paragraph 27 of the judgment he said as
    follciws:-
C
        "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."
D
                                                   (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:
                                                                         B
    " 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
    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 non-
    scheduled 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.
                                                                         E
           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."

    42. The said circular letter has not been issued by the
                                                                         F
    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)
                                                                         H
    124       SUPREME COURT REPORTS                 [2012] 2 S,C.R.


A       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
  his Constitutional Law of India, Fourth Edition, pages 2669-
0
  2673 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. In Punit Rai's case, the question did not
  arise at all, and moreover, there was no majority concurrence
  on the question that a child inherits his caste from the father.
E Thus, the concurring judgment of Sinha J. must be interpreted
  by reference to Paragraphs 33, 34 and 47 of the judgment,
  where the learned Judge concurs with the majority on the
  question of fact. The .other observations in the concurring
  judgment cannot be said to constitute binding precedent.
F
          19. The question of the status of a child born to a scheduled
   tribe mother from a forward caste father again came up before
   the Court in Anjan Kumar v. Union of India and others, (2006)
   3 sec 257. Anjan Kumar, was the son -of a scheduled tribe
G mother and a Kayastha (forward caste) father. The question
   was whether he could be considered to belong to the scheduled
   tribe. On the facts of the case, ihe Court found that though the
   mother of the child indeed belonged to a scheduled tribe, the
  ;:hil~ was brought up in the environment of forward caste
H community- and_ he did not suffer any social disabilities or
     RAMESHBHAI DABHAI NAIKA v. STATE OF                     125
       GUJARAT & ORS. [AFTAB ALAM, J.]

backwardness. In paragraph 6 and 7 of the judgment the Court        A
observed as follows:-

    "6.Undisputedly, the marriage of the appellant's mother
    (tribal woman) to one Lakshmi Kant Sahay (Kayastha) was
    a court marriage performed outside the village. Ordinarily,
                                                                    8
    the court marriage is performed when either of the parents
    of bride or bridegroom or the community of the village
    objects to such marriage. In such a situation, the bride or
    the bridegroom suffers the wrath of the community of the
    village and runs the risk of being ostraCised or                C
    excommunicated from the village community. Therefore,
    there is no question of such marriage being accepted by
    the village community. The situation will, however, stand on
    different footing in a case where a tribal man marries a
    non-tribal woman (forward class) then the offshoots of such
    wedlock would obviously attain the tribal status. However,      D
    the woman (if she belongs to a Forward Class) cannot
    automatically attain the status of tribal unless she has been
    accepted by the community as one of them, observed all
    rituals, customs and traditions which have been practiced
    by the tribals from time immemorial and accepted by the         E
    community of the village as a member of tribal society for
    the purpose of social relations with the village community.
    Such acceptance must be by the village community by a
    resolution and such resolution must be entered in the
    Village Register kept for the purpose. Often than not, such     F
    acceptance is preceded by feast/rituals performed by the
    parties where the elders of the village community
    participated. However, acceptance of the marriage by the
    community itself would not entitle the woman (forward
    class) to claim the appointment to the post reserved for        G
    the reserved category. It would be incongruous to suggest
    that the tribal woman, who suffered disabilities, would be
    able to compete with the woman (forward class) who does
    not suffer disabilities wherefrom she belongs but by reason
    of marriage to tribal husband and such marriage is              H
    126      SUPREME COURT REPORTS                  [2012] 2 S.C.R.


A    ···accepted by the community would entitle her for
        appointment to the post reserved for the Scheduled Castes
        and Scheduled Tribes. It would be a negation of
        constitutional goal.

         7. It is not disputed that the couple performed court
B
       · marriage outside the village; settled down in Gaya and
         their son, the appellant also born and brought up in the
         environment of forward community did not suffer any
         disability from the society to which he belonged. Mr .
      .: Krishnamani, learned Senior Counsel contended that the
c        appellant used to visit the village during recess/holidays
         and there was cordial relationship between the appellant
         and the village community, which would amount to the
         acceptance of the appellant by the village community. By
         no stretch of imagination, a casual visit to the relative in
D        other village would provide the status of permanent
         resident of the village or acceptance by the village
       . community as a member of the tribal community."

       20. The Court in paragraph 6 of the judgment, as quoted
E above, applied the test of acceptance in the community in which
  the woman gets married. But more importantly in paragraph 7
  of the judgment went into the specifics of the case on the
  question of upbringing of the appellant Anjan Kumar and
  recorded a finding of fact that he was "brought up ii) the
F environment of forward community (and) did not suffer from any
  disability from the society to which he belonged". Having
  arrived at the aforesaid finding of fact the Court proceeded to
  refer to several decisions, including Valsamma and the
  judgment of Sinha, J. in Punit Rai (in particular paragraph 27
G of the judgment) and in paragraph 14 came to observe and hold
  as follows:-

     , ·· "14. In view of the catena of decisions of this Court, the
          questions raised before us are no more res integra. The
          condition precedent for granting tribe certificate being that
H         one must suffer disabilities wherefrom one belongs. The
     RAMESHBHAI DABHAI NAIKA v. STATE OF                     127
       GUJARAT & ORS. [AFTAB ALAM, J.]
    offshoots of the wedlock of a tribal woman married to a         A
    non-tribal husband - Forward Class (Kayastha in the
    present case) cannot claim Scheduled Tribe status. The
    reason being such offshoot was brought up in the
    atmosphere of Forward Class and he is not subjected to
    any disability. A person not belonging to the Scheduled         B
    Castes or Scheduled Tribes claiming himself to be a
    member of such caste by procuring a bogus caste
    certificate is a fraud under the Constitution of India. The
    impact of procuring fake/bogus caste certificate and
    obtaining appointment/admission from the reserved quota         c
    will have far-reaching grave consequences. A meritorious
    reserved candidate may be deprived of reserved category
    for whoin the post is reserved. The reserved post will go
    into the hands of non-deserving candidate and in such
    cases it would be violative of the mandate of Articles 14
                                                                    0
    and 21 of the Constitution."

                                             (emphasis added)

     21. Here the Court said that, "the offshoot of the wedlock
of a tribal woman married to a non-tribal husband - Forward         E
Class (Kayestha in the present case) cannot claim Scheduled
Tribe status". But it was not on the reasoning of Valsamma that
in an inter-caste marriage or in a marriage between a tribal and
a non-tribal the woman gets transplantedJnto the community
of the husband and gets her caste from the husband (paragraph       F
31 of the judgment) or the reasoning in Sinha J's judgment that
in the absence of any statutory law a person would inherit his
caste from his father and not his mother even in a case of inter-
caste marriage". Here the reasoning is that, " .. such offshoot
was brought up in the atmosphere of Forward Class and he is         G
not subjected to any disability. That is exactly the reasoning of
Valsamma in paragraph 34 of the judgment and that as noted
above is the true ratio of the decision in Valsamma.

    22. It is, thus, clear that it is wrong and incorrect to read
Valsamma, Punit Rai and Anjan Kumar as laying down the rule         H
    128      SUPREME COURT REPORTS                [2012] 2 S.C.R.


A that in an inter-caste marriage or a marriage between a tribal
  and a non-tribal, the child must always be deemed to take his/
  her caste from the father regardless of the attending facts and
  circumstances of each case. Now, we propose to consider why
  the observation in Valsamma to the effect that an inter-caste
B marriage or a marriage between a tribal and a non-tribal the
  woman becomes a member of the family of her husband and
  takes her husband's caste (Paragraph 31 of the judgment) is
  not the ratio of that decision and more importantly what
  inequitable and anomalous results would follow if that
c proposition is taken to its next step to hold that the offspring of
  such a marriage would in all cases take the caste from the
  father.

         23. For the proposition that on marriage the woman takes
    the caste of her husband Valsamma relied on two nineteenth
D century Privy Council decisions, one in Bhoobum Moyee
    Debia v. Ram Kishore Acharj Chowdhry, (1865) 10 MIA 279
    and .. the other in Lu/loobhoy Bappoobhoy Cassidass
    Moolchund v. Cassibai, (1879-80) 71A 212. In Bhoobum
    Moyee Debia the respondent Chandrabullee Debia after the
E death of her son, who left behind an issueless widow (the
    appellant, Bhoobum Moyee Debia), in order to devest the
    widowed daughter-in-law, made an adoption on the strength of
    a deed of permission of adoption that was executed in her
    favour by her deceased husband (Gaur Kishore Acharj
F · Chaudhary). The adopted son filed a suit claiming the entire
    estate of Gaur Kishore Acharj Chaudhary, trying to defeat the
    claim of the appellant and devest her of the estate. He
    succeeded before the Sudder Dewanny Adawlut of Calcutta.
    But in appeal the Privy Council held that under the Hindu Law
G an adopted son takes by inheritance and not by device and as
    by that law in the case of inheritance, the person to succeed
    must be the heir of the full owner. In the facts of the case, the
    deceased son of Gaur Kishore Acharj Chaudhary and
    Chandrabullee Debia who was the husband of the appellant
H was the last full owner and at his death his wife, the appellant,
     RAMESHBHAI DABHAI NAIKA v. STATE OF                      129
       GUJARAT & ORS. [AFTAB ALAM, J.]
succeeded as his heir to her widow's estate. Consequently, the       A
adoption by Chandrabullee Debia was void as the power was
incapable of execution. After reaching this conclusion the Privy
Council further noted that an additional difficulty in holding the
estate of the widow to be devested "may perhaps be found in
the doctrine of Hindoo Law, that the husband and wife are one        B
and that as long as the wife survives, one half of the husband
survives; but it is not necessary to press this objection".

      24. The second decision of the Privy Council in Lulloobhoy
Bappoobhoy Cassidass Moolchund, raised the question C
whether the widow of a paternal first cousin of the deceased
became - by her marriage - a Gotraja-sapinda of the deceased,
and whether she was, therefore, entitled to succeed to the estate
in preference to male gotraja-sapindas who were more distant
heirs. The Privy Council, based on an interpretation of the
Mitakshara law as it prevailed in Bombay at that time, affirmed D
the widow's right of inheritance. The Privy Council observed,
"It is not disputed that on her marriage the wife enters the gotra
of her husband, and it can scarcely be doubted that in some
sense she becomes a sapinda of his family. It is not necessary
to cite authorities on this point.. .... Whether the right to inherit E
follows as a consequence of this sapinda relationship is the
question to be considered?" The Privy Council cited a passage
from the Achara Kanda of the Mitakshara which suggested that
sapinda relationship depended on having the particles of the
body of some ancestor in common. However, "the wife and the F
husband are sapinda relations to each other, because they
together beget one body (the son)". It was further observed; "If
then, as already pointed out, the wife upon her marriage enters
the gotra of her husband and, thus, becomes constructively in
consanguinity or relationship with him, and through him, with his G
family, there would appear to be nothing incongruous in her
being allowed to inherit as a member of that family under a
scheme of inheritance which did not adopt the principle of the
general incapacity of women to inherit. But, though it may be
 consisted with this theory of sapinda relationship to admit the H
    130       SUPREME COURT REPORTS                 [2012] 2 S.C.R.


A   widow so to inherit, the existence of the right has still to be
    established."

         25. In the first of the two Privy Council decisions, the issue
  of sapinda relationship did not really arise and the case was
8 decided on an altogether different basis. In the second decision,
  it is only observed that the wife enters the gotra of the husband.
  There may be many gotras within a certain caste, and it is
  unclear if this doctrine of Hindu Customary law can be applied
  in the post-Constitution era to determine the caste of a child
C from an inter-caste marriage or a marriage between a tribal and
  non-tribal.

        26. Without any disrespect, it seems a matter of grim irony
  that two nineteenth century decisions of the Privy Council that
  were rendered in their time to advance and safeguard the
D interests of Hindu widows should be relied upon and used for
  complete effacement of the caste and the past life of a woman
  as a result of her marrying into a different caste. The Privy
  Council decisions were rendered about a century and a quarter
  ago in cases of inheritance, in a completely different social and
E historical milieu, when cases of inter-caste marriage would be
  coming to the court quite rarely. We are not quite sure of the
  propriety or desirability of using those decisions in a totally
  different context in the post-Constitutional, independent India
  where there is such great consciousness and so much effort
F is being made for the empowerment of women and when
  instances of inter-caste marriage are ever on the increase. It
  also needs to be considered how far it would be proper to
  invoke the customary Hindu law to alter the caste status of a
  woman in an inter-caste marriage or a marriage between a
G tribal and non-tribal and to assign to the woman the caste of
  her husband when such a marriage may itself be in complete
  breach of the Hindu customary law.
      27. We may also recall that Valsamma Paul was a case
  where a Syrian Catholic woman (forward caste) had married
H a Latin Catholic man (backward class). The parties were
     RAMESHBHAI DABHAI NAIKA v. STATE OF                     131
       GUJARAT & ORS. [AFTAB ALAM, J.]
Christians but the Court applied the Hindu Customary law             A
observing, "It would, therefore, be clear that be it either under
the Canon law or the Hindu law, on marriage the wife becomes
an integral part of husband's marital home entitled to equal
status of husband as a member of the family. The Court, thus,
put the Canon law at par with the Hindu Customary law. Now,          B
surely the same reasoning cannot apply if a Muslim of a forward
caste marries a Muslim tribal e.g. a Lakshdweep Gaddi or a
Bakriwal from Jammu and Kashmir. One wonders whether in
those cases too the woman can be said to take the caste of
her husband applying the reasoning of Valsamma.                      c
    28. Further, whether and to what extent the Hindu
Customary law would govern members of scheduled tribes (as
opposed to scheduled castes) would depend on the extent to
which the given tribe was hinduised prior to the adoption of the
Constitution of India.                                               D
      29. The view expressed in Valsamma that in inter-caste
marriage or in a marriage between a tribal and a non-tribal the
woman gets transplanted into the family of her husband and
takes her husband's caste is clearly not in accord with the view
expressed by the Constitution Bench of the Court in V. V. Giri       E
v. Dippala Suri Dora and others, (1960) 1 SCR 426 that it is
well nigh impossible to break or even to relax the inflexible and
exclusive character of the caste system. In V.V. Giri the election
of the returned candidate was challenged on the ground that
he had ceased to be a member of the Scheduled Tribe and              F
had become a Kashtriya. In support of the allegation evidences
were led that from 1928 onwards he had described himself and
the members of his family as belonging to the Kashtriya caste.
Oral evidence was led to show that he had for some years past
adopted the customs and rituals of the Kashtriya caste and           G
marriages in his family were celebrated as they would be
among the Kashtriya and homa was performed on such
occasions. It was also shown that his family was connected by
marriage ties with some Kashtriya families, that a Brahmin priest
officiated at the religious ceremonies performed by him and he       H
    132         SUPREME COURT REPORTS                     [2012] 2 S.C.R.


A   wore the sacred thread.

        30. Rejecting the contention of the election petitioner
    Gajendragadkar J. (as his Lordship then was) speaking for
    himself and three other Honourable Judges on the Bench
    observed in Paragraph 25 of the judgment as follows:
8
          "In dealing with this contention it would be essential to bear
          in mind the broad and recognized features of the
          hierarchical social structure prevailing amongst the Hindus.
          It is not necessary for our present purpose to trace the
c         origin and growth of the caste system amongst the Hindus.
          It would be enough to state that whatever may have been
          the origin of Hindu castes and tribes in ancient times,
          gradually castes came to be based on birth alone. It is well
          known that a person who belongs by birth to a depressed
D         caste or tribe would find it very difficult, if not impossible,
          to attain the status of a higher caste amongst the Hindus
          by virtue of his volition, education, culture and status. The
          history of social reform for the last century and more has
          shown how difficult it is to break or even to relax the rigour
E         of the inflexible and exclusive character of the caste
          system 1• It is to be hoped that this position will change, and
          in course of time the cherished ideal of casteless society
          truly based on social equality will be attained under the
          powerful impact of the doctrine of social justice and equality
          proclaimed by the Constitution and sought to be
F
          implemented by the relevant statutes and as a result of the
          spread of secular education and the growth of a rational
          outlook and of proper sense of social values; but at
          present it would be unrealistic and utopian to ignore the
          difficulties which a member of the depressed tribe or caste
G         has to face in claiming a higher status amongst his co-
          religionists."
    1.   In Valsamma (Para 31) a bench of two judges, using similar words said
         just the opposite:"The caste rigidity breaks down and would stand no
         impediment to her becoming a member of the family to which the husband
H        belongs".
      RAMESHBHAI DABHAI NAIKA v. STATE OF                    133
        GUJARAT & ORS. [AFTAB ALAM, J.]

       31. The observation made by Gajendragadkar J. half a          A
  century ago was tellingly shown to be true in Rajendra
  Shrivastava vs. State of Maharashtra, (2010) 112 BomLR
  762, a case that came before the Full Bench of the Bombay
  High Court. In Rajendra Shrivastava a Scheduled Caste
  woman, who had married a man from an upper caste, accused          B
  her husband and his family members of subjecting her to cruelty
  and abusing her in the name of her caste. A case was
  accordingly instituted against the accused, including the
  husband, under Sections 498A, 406, 494, 34 of the Indian
  Penal Code read with the provisions of Section 3(1)(ii) and        c
  Section 3(1 )(x) of the Scheduled Castes and the Scheduled
  Tribes (Prevention of Atrocities) Act, 1989. In the anticipatory
  bail application filed on behalf of the husband it was contended
  that on getting married with him the complainant had assumed
1 his caste and lost her identity as a Scheduled Caste person.
                                                                     0
  She could, therefore, make no complaint under the provisions
  of the SC/ST (Prevention of Atrocities) Act. It goes without
  saying that in support of the contention raised on behalf of the
  husband strong reliance was placed upon the observations
  made in Valsamma in Paragraph 31 of the judgment.
                                                                     E
      32. The full bench before which the matter came up for
 consideration on reference framed the following issue as
 arising for consideration:

      "If a woman who by birth belongs to a scheduled caste or       F
      a scheduled tribe marries to a man belonging to a forward
      caste, whether on marriage she ceases to belong to the
      scheduled caste or the scheduled tribe?"

      33. The full bench of the Bombay High Court examined
 Va Isam ma in light of two Constitutional Bench decisions of this   G
 Court, namely, Indra Sawhney v. Union of India, 1992 supp (3)
 SCC 217 and V. V. Giri v. D. Suri Dora, (supra). The full bench
 also considered the law of precedent and referred to the
 decision of this Court in State of A.P. v. M. Radha Krishna
 Murthy, (2009) 5 SCC 117. It finally came to hold that the          H
    134       SUPREME COURT REPORTS                  (2012] 2 S.C.R.


A observations made in Paragraph 31 of the decision in
  Valsamma cannot be read as the ratio laying down that on
  marriage, a wife is automatically transplanted into the caste of
  her husband. In Paragraph 12 of the judgment it held as
  follows:-
B
       "When a woman born in a scheduled caste or a scheduled
       tribe marries to a person belonging to a forward caste, her
       caste by birth does not change by virtue of the marriage.
       A person born as a member of a scheduled caste or a
       scheduled tribe has to suffer from disadvantages,
c      disabilities and indignities only by virtue of belonging to the
       particular caste which he or she acquires involuntarily on
       birth. The suffering of such a person by virtue of caste is
       not wiped out by a marriage with the person belonging to
       a forward caste. The label attached to a person born into
D      a scheduled caste or a scheduled tribe continues
       notwithstanding the marriage. No material has been
       placed before us by the applicant so as to point out that
       the caste of a person can be changed either by custom,
       usage, religious sanction or provision of law."
E
         34. We fully endorse the view taken by the Bombay High
    Court and we feel that in the facts of the case that was the only
    correct view.

       35. In light of the discussion made above it is clear that
F the view expressed in Paragraph 31 of the Valsamma judgment
  that in an inter-caste marriage or a marriage between a tribal
  and a non-tribal the woman must in all cases take her caste
  from the husband, as a rule of Constitutional Law is a
  proposition, the correctness of which is not free from doubt. And
G in any case it is not the ratio of the Valsamma decision and
  does not make a binding precedent.

      36. It is also clear to us that taking it to the next logical step
  and to hold that the off-spring of such a marriage would in all
H cases get his/her caste from the father is bound to give rise to
      RAMESHBHAI DABHAI NAIKA v. STATE OF                      135
        GUJARAT & ORS. [AFTAB ALAM, J.]

  serious problems. Take for instance the case of a tribal woman       A
  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 is born
  in the community from where her mother came and to which             B
  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. Can
  it still be said that the child would have the caste of his father
  and, therefore, not entitled to any benefits, privileges or          c
  protections sanctioned by the Constitution.

     37. Let us now examine how the issue has been dealt with
 by some of the High Courts.

      38. A full bench decision of the Kerala High Court in Indira     D
 v. State of Kera/a, AIR 2006 Ker. 1, is a case in point.

       39. The Government of Kerala had issued G.O. (Ms) No.
 298 dated 23/6/1961 stating that children born of inter-caste
 marriages would be allowed all educational concessions if             E
 either of the parents belonged to scheduled caste/scheduled
 tribe. Later, on a query made by the Kerala Public Service
 Commission, the Government clarified vide a G.O. (Ms) dated
 25/1/1977 that the Government Order dated 23/6/1961 could
 be adopted for determining the caste of the children born of          F
 such inter-caste marriage for all purposes. Resultantly, such
 children were treated as belonging to scheduled caste or
 scheduled tribe if either of their parents belonged to SC/ST.
 After the decision of this Court in Punit Rai (supra) and in light
 of the separate though concurring judgment of Sinha J. the
 State of Kerala cancelled the earlier G.O. (Ms) dated 23/6/1961       G
 and its clarification dated 25/1/1977 and replaced it by another
 order G.O. (Ms) No. 11/2005/SCSTDD dated 20/6/2005
 directing that the competent authorities would issue Scheduled
 Caste/Scheduled Tribe community certificates to the children
 born from inter-caste marriage only as per the caste/community        H
    136        SUPREME COURT REPORTS               [2012) 2 S.C.R.


A of his/her father subject to the conditions of acceptance,
  customary traits and tenets as stipulated in the judgments of
  the Supreme Court. The validity of the Government Order dated
  201612005 came up for consideration before the full bench of
  the Kerala High Court. The High Court considered the
B decisions of this Court in a number of cases including
  Valsamma, Sobha Hymavathi Devi and Punit Rai and in
  Paragraph 21 of the judgment came to hold as follows:

           "The Government, vide order G.O. (Ms) No. 25/2005/
           SCSTDD dated 201612005 directed the competent
c          authority to issue SC/ST community certificates to the
           children born out of intercaste married couples as per the
           caste/community of the father subject to the conditions of
           acceptance, customary traits and tenets stipulated in Punit
           Rai's case and Sobha Hymavathi Devi's case. The above
D          government order would also be applicable to the
           children born out of intercaste married couple if the
           mother belongs to SC/ST community. Subject to the
          ,above direction, rest of the directions contained in G.O.
           (Ms) No. 11/05/ and G.O. (Ms) No. 25/2005 would stand."
E
        40. We are in agreement with the view taken by the Kerala
    High Court.

       41. A division bench of the Delhi High Court in Kendriya
  Vidyalaya Sangathan v. Shanti Acharya Sisingi, 176(2011)
F DLT 341, after considering a number of decisions of this Court
  summed up the legal position as to the offspring of an inter-
  caste marriage or a marriage between a tribal and a non-tribal
  in clauses 3 and 4 under Paragraph 30 of the judgment as
  follows:
G
       "Ill The offshoot of wedlock between Scheduled Caste/
        Scheduled Tribe male and a female belonging to forward
        community can claim Scheduled Caste/Scheduled Tribe
        status for Indian society is patriarchal society where the
H       child acquires the caste of his father.
      RAMESHBHAI DABHAI NAIKA v. STATE OF                  137
        GUJARAT & ORS. [AFTAB ALAM, J.]

     IV The offshoot of wedlock between Scheduled Caste/         A
     Scheduled Tribe female and a male belonging to forward
     community cannot claim Scheduled Caste/Scheduled
     Tribe status unless he demonstrates that she has suffered
     the disabilities suffered by the members of the community
     of his mother."                                             B

      42. In Arabinda Kumar Saha v. State of Assam, 2001 (3)
 GLT 45 a division bench of the Gauhati High Court had a case
 before it in which a person whose father belonged to the upper
 caste and mother to a scheduled caste claimed scheduled C
 caste status. The court found and held that though the father of
 the writ petitioner was admittedly a forward caste man he was
 brought up as a member of the scheduled caste. This was
 evident from the fact that the writ petitioner had not only been
the office holder of Anushchit Jati Karamchari Parishad but the
scheduled caste community treated the appellant as belonging . 0
to scheduled caste and even the non-scheduled caste people
treated him as scheduled caste, in as much as in his college
 career and in his service career he was treated as a person
 belonging to a scheduled caste.
                                                                  E
     43. In view of the analysis of the earlier decisions and the
discussion made above, the legal position that seems to
emerge is that in an inter-caste marriage or a marriage
between a tribal and a non-tribal the determination of the caste
of the offspring is essentially a question of fact to be decided F
on the basis of the facts adduced in each case. The
determination of caste of a person born of an inter-caste
marriage or a marriage between a tribal and a non-tribal cannot
be determined in complete disregard of attending facts of the
case. In an inter-caste marriage or a marriage between a tribal G
and a non-tribal there may be a presumption that the child has
the caste of the father. This presumption may be stronger in
the case where in the inter-caste marriage or a marriage
between a tribal and a non-tribal the husband belongs to a
forward caste. But by no means the presumption is conclusive H
     138     SUPREME COURT REPORTS                 [2012] 2 S.C.R.


A or irrebuttable and it is open to the child of such marriage to
  lead evidence to show that he/she was brought up by the mother
  who belonged to the scheduled caste/scheduled tribe. By virtue
  of being the son of a forward caste father he did not have any
  advantageous start in life but on the contrary suffered the
B deprivations, indignities, humilities and handicaps like any other
  member of the community to which his/her mother belonged.
  Additionally, that he was always treated a member of the
   community to which her mother belonged not only by that
   community but by people outside the community as well.
c      44. In the case in hand the tribal certificate has been taken
  away from the appellant 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. The orders passed
D by the High Court and the Scrutiny Committee are, accordingly,
  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. It is made absolutely clear that
  this Court is not expressing any opinion on the merits of the
E case of the appellant or the private contesting respondent.

         45. Before parting with the records of the case, we would
   like to put on record our appreciation for the assistance that
   we got from Mr. Sanjay R. Hegde counsel appearing for the
 F appellant and Mr. Sanjeev Kumar counsel appearing for
   respondent No. 6. The assistance we received from the amicus
   curiae, Mr. Aman Ahluwalia was especially invaluable.
          46. In the result, the appeal is allowed but in the facts of
     the case there will be no order as to costs.
 G
     D.G.                                           Appeal allowed.