SOBHA HYMAVATHI DEVIversusSETTI GANGADHARA SWAMY AND ORS.

A                          SOBHA HYMA VATHI DEVI
                                           v.
                   SETT! GANGADHARA SWAMY AND ORS.

                                JANUARY 28, 2005

B                    [R.C. LAHOTI, CJ., G.P. MATHUR AND
                        P.K. BALASUBRAMANYAN, JJ.]


         Constitution of India, 1950 -Article 332 - Constituency reserved for
C Scheduled Tribes-Election ofappellant set aside by High Court on the ground
   that she belonged to a forward caste-Appellant was born of a forward caste
  father and Scheduled Tribe mother-Claim of appellant that her parents were
  not formally married, and she being illegitimate, belonged to caste of her
   mother and further that she was brought up as a member of Scheduled Tribe
   not substantiated-Claim of acquired membership in community of husband,
D who belonged to Scheduled Tribe, also not acceptable, since reservation would
   benefit only those who belonged to a Scheduled Caste/Tribe and not those
   who claim to acquire the status by marriage-Hence, election of Appellant
   rightly declared invalid-Election Laws.
                                                                                        ...

          Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward
E Classes) Regulation ofIssue ofCommunity Certificate Act, 1993-Section 3-
    Certificate under-Evidentiary value of-Held, such certificate is confined in
    its validity to elections to local authorities and co-operative institutions - It
    does not embrace an election to the Legislative Assembly or to the Parliament.

         Election of appellant to a Scheduled Tribe Assembly constituency
F   was challenged before High Court on ground that she belonged to a
    forward community, Patnaik Sisto Karnam and was hence not qualified
    to contest from a constituency reserved for Scheduled Tribe candidates.
    It was alleged that S, the appellant's mother belonged to the Bhagatha
    community, a notified Scheduled Tribe, who married M, a person
G   belonging to a forward community, Patnaik Sisto Karnam, and in that
    wedlock was born the appellant and five other children who were brought
    up as Sisto Karnams and not as persons belonging to the Bhagatha
    community.

           Appellant submitted that she was the daughter of S through M but
H                                         MS
                              S.H. DEVI v. S.G. SW AMY                     849
     pleaded that S had earlier married L who belonged to the Bhagatha A
     community which marriage was never terminated; that there was no
     marriage between S and M, though there was intimacy and co-habitation
     between them resulting in progeny, six in all including herself, all
     illegitimate; and that M had himself earlier m.arried his sister's daughter
     K, which marriage had also not been terminated, therefore, there was no
     possibility of M formally marrying S. The appellant further pleaded that B
     she had married A, her maternal uncle belonging to the Bhagatha
..   Community and being the wife of a person belonging to a Scheduled Tribe,
     she was also entitled to be treated as belonging to the Scheduled Tribe.

           The High Court held that M had married S, and six legitimate C
     children were born to them, that since a child took the caste of its father,
     the appellant had to be considered a Sista Karnam and not a member of
     the Bhagatha Community and further that the appellant could not claim
     the benefit of reservation to contest from a reserved constituency merely
     because of her marriage to a member of Scheduled Tribe when she herself
     belonged to a forward community and accordingly upheld the challenge D
     to the election of the appellant. Hence the appeals.

          Dismissing the appeals, the Court

           HELD: I. The High Court was right in declaring the election of the
     appellant to the concerned Legislative Assembly of Andhra Pradesh            E
     invalid. (861-8)

           2.1. The finding of the High Court that M and S were married and
     six children including the appellant were born in that wedlock and that it
     was not possible to hold that there was only a concubinage and the six
     children including the appellant were born out of that relationship and      F
     out of wedlock is unexceptionable. (855-E)

           2.2. The conclusion that there was a valid marriage between M and
     S stands strengthened by the presumption available in law arising out of
     the long cohabitation of M and S. (855-H; 856-A)
                                                                                  G
          Mohabbat Ali Khan v. Muhammad Ibrahim Khan and Ors., AIR (1929)
     PC 135 .and Gokal Chand v. Parvin Kumari, AIR (1952) SC 231, relied on.

           2.3. The presumption which may be drawn from long cohabitation
     is rebuttable, and if there are circumstances which weaken or destroy that H
    850                    SUPREME COURT REPORTS                   (2005] I S.C.R.

A presumption, the Court cannot ignore them. However on the evidence
    here, including the documentary evidence relied on by the High Court,
    the presumption arising from long cohabitation of M and S of a valid
    marriage between them, gets strengthened and there is no material
    circumstance which can be said to rebut such presumption arising from
    long cohabitation. [856-CJ
B
         S.P.S. Balasubramanyam v. Suruttayan Alias Andalipadayachi and Ors.,
    (199411 SCC 4611 and Ranganath Parmeshwar Panditrao Mali and Anr. v.
    Eknath Gajanan Kulkarni and Anr., [1996) 7 SCC 681, referred to.

          3. There is no merit in the challenge to the finding that the appellant
C   had failed to prove that S had earlier married L or that there was any
    subsisting relationship between S and L which could stand in the way of
    a valid marriage between M and S. Even assuming that there was any
    earlier marriage between S and L at a time when S was allegedly eight
    years old, the same also can be presumed to have bee11 terminated
D   especially in the context of the subsequent long cohabitatio~'of M and S
    and the evidence on the side of the appellant herself that the said marriage
    was never consummated and that S had left L immediately after marriage
    and had never lived with him. [855-F; 856-E-F)

          Raja Ram v. Deepa Bai, (1973) MPLJ 626, held applicable.
E
           4. The finding rendered by the High Court that the appellant had
    failed to show that her father had earlier married K, his sister's daughter,
    is also fully justified. (855-GI

          5. The document Exh. 10 and the entry therein marked as Exh. X-
F   11 relating to the appellant, show her caste as Si~tu Karnam and not as
    Bhagatha. This entry was at an undisputed point of time. Moreover, the
    evidence also shows that she was always being educated at Visakhapatnam
    and she was never living as a tribal in Bhimavaram.village to which her
    mother's family belongs. [857-G I

G         6. There was nothing to show that the marriage of the appellant with
    A took place in the customary mode followed by the Bhagatha Community.
    On the other hand, the available evidence tends to indicate that the
    marriage was more in the form followed by Sisto Karnams, the community
    to which her father belonged. Secondly, there is nothing to show that the
H   appellant was accepted by the Bhagatha Community of Bhimavaram as
                          S.H. DEVI v. S.G. SWAMY                           851

a member of that community. In fact, the indication available was that A
the appellant hardly resided in Bhimavaram village to which her maternal
grand-father belonged and there was no occasion for that community to
treat her as a member of that community. There is also nothing to show
that the appellant followed the way of life of that community. [858-E-F[

      7. Article 332 of the Constitution speaks of reservation of seats for B
Scheduled Tribes in Legislative Assemblies. The object is clearly to give
representation in the legislature to Scheduled Tribe candidates, considered
to be deserving of such special protection. To permit a non-tribal under
cover of a marriage to contest such a seat would tend to defeat the very
object of such a reservation. (859-CJ                                       C
      Valsamma Paul (Mrs.) v. Cochin University and Ors., [1996( 3 SCC
545, followed.

     N.E. Horo v. Smt. Jahan Ara Jaipal Singh, AIR (1972) SC 1840, partly
over-ruled.
                                                                                  D
     Bhoobun Muyee v. Ram Kishore, (1865) to MIA 279 and Lulloobhoy
Bappoobhoy Cassidass MiJolchund v. Cassibai, (1879-80) 7 IA 212, referred
to.

      8. Whether it be a reservation under Articles 15(4) or 16(4) or 330 E
and 332, the said reservation would benefit only those who belong to a
Scheduled Caste or Scheduled Tribe and not those who claim to a~quire
the status by marriage, like the appellant in this case. Thus, the High Court
was fully justified in coming to the conclusion that the appellant could not
claim the right to contest a seat reserved for a Scheduled Tribe in terms
of Article 332 of the Constitution of India merely by virtue of her marriage F
to a person belonging to a Scheduled Tribe. (860-B-CJ

      9. Section 3 of the Andhra Pradesh (Scheduled Castes, Scheduled
Tribes and Backward Classes) Regulation of Issue of Community
Certificate Act, 1993 indicates that a certificate thereunder, insofar as it
relates to elections, is confined in its validity to elections to local authorities G
and co-operative institutions. It does not embrace an election to the
Legislative Assembly or to the Parliament. Therefore, it cannot be said
that the High Court, exercising jurisdiction under the Representation of
The People Act in an Election Petition is precluded from going into the
question of status of a candidate or proceeding to make an independent H
    852                    SUPREME COURT REPORTS                  [2005] l S.C.R.

A   inquiry into that question in spite of the production of a certificate under
    the Act. At best, such a certificate could be used in evidence and its
    evidentiary value will have to be assessed in the light of the other evidence
    let in. Therefore, nothing turns on the factum of a certificate being issued
    by the concerned authority under the Act of 1993. Moreover, no proper
    inquiry preceded the issuance of such a certificate and it was issued merely
B   on the say so of the appellant. (860-E-H]

         CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4413-4414
    of 2003.

          From the Judgment and Order dated 2.5.2003 of the Andhra Pradesh
C High Court in E.P. Nos. 26 and 27 of 1999.
        Ms. K. Amareswari, Guntur Prabhakar, Ms. T. Anamika and B.
    Ramamurthy for the Appellant.

         K. Radhakrishnan, S. Udaya K. Sagar, Ms. Bina Madhavan and
D   Vinayagan for M/s. Lawyer's Knit & Co., for the Respondents.

          T.V. Ratnam (NP) for the Respondent No.5

          The Judgment of the Court was delivered by

E         P.K. BALASUBRAMANY AN, J. I. The election of the appellant from
    Sringavarapukota 28 S.T. Assembly constituency in Vizianagaram District of
    Andhra Pradesh to the legislative assembly in the elections of the year 1999
    was challenged under the Representation of the People Act before the High
    Court of Andhra Pradesh in three Election Petitions. Two of them were by
F   defeated candidates and one of them by a voter in the constituency. The
    election petition [E.P.No. 25of1999] filed by one of the defeated candidates
    abated due to the death of the petitioner therein during the pendency of the    ~
    election petition in the High Court. The other two election petitions were
    allowed by the High Court upholding the challenge to the election of the
    appellant on the ground that the appellant was not qualified to contest from
G   a constituency reserved for Scheduled Tribe candidates. Thus the election of
    the appellant was set aside. Aggrieved thereby, the appellant has filed these
    appeals under Section l l 6A of the Representation of the People Act, 1951.

          2. The question that fell for decision before the High Court in the
    Election Petitions filed under Section 81 read with Section I 00 of the Act
H   and that falls for decision before us, is whether the appellant belongs to a
            S.H. DEVI v. S.G. SWAMY [BALASUBRAMANYAN, J.]                853
Scheduled Tribe and hence qualified to contest the election from a constituency A
reserved for a Scheduled Tribe. According to the Election Petitioners, the
appellant belonged to a forward community, Patnaik Sistu Karnam, while
according to the appellant, she belongs to the Bhagatha Community, which
was a notified Scheduled Tribe. The High Court, on evaluation of the pleadings
and the evidence adduced before it, came to the conclusion that the appellant
was a Patnaik Sistu Karnam and was not a member ofBhagatha Community, B
a Scheduled Tribe community. It was thus that the election of the appellant
was set aside. The High Court posed the question whether the Election
Petitioners have established that the appellant did not belong to Bhagatha
Community as claimed by her and on coming to the conclusion that they
have established that she belonged to the Patnaik Sistu Karnam community C
and further finding that the said community was not a Scheduled Tribe,
granted the relief to the Election Petitioners,. What is contended in these
appeals on behalf of the appellant, is that the said finding by the High Court
was not justified and the appellant was entitled to be treated as belonging to
Bhagatha Community, a Scheduled Tribe.
                                                                               D
       3. Certain facts are not in dispute. One Sobha Rama Raju belonged to
Bhagatha Community. He had two wives, Mallamma and Gowramma. Through
Mallamma he had a daughter Simhachalam. The appellant is the daughter of
Simhachalam. According to the Election Petitioners,, Simhachalam had married
one Murahari Rao belonging to the Patnaik Sistu Karnam caste and in that
wedlock, was born the appellant and five other children. The appellant admitted E
that she was the daughter of Simhachalam through Murahari Rao. But she
pleaded that she and five of her siblings, were the illegitimate childr-.:n of
Murahari Rao, a Patnaik Sistu Kamam and Simhachalam, of the Bhagatha
Community. Simhachalam had earlier married Ladda Appala Swamy who
belonged to the Bhagatha Community and that marriage was never terminated F
and there was no marriage between Simhachalam and Murahari Rao, though
there was intimacy and cohabitation between them resulting in progeny, six
in all including herself, all illegitimate. To add strength to her contention, the
appellant also raised a plea that Murahari Rao had himself earlier married his
Sister's daughter Kalavathi and that marriage had also not been terminated
and, therefore, there was no possibility of Murahari Rao, her father formally G
marrying Simhachalam, her mother. The appellant further pleaded that she
had married one Appala Raju, her maternal uncle belonging to the Bhagatha
Community and being the wife of a person belonging to a Scheduled Tribe,
she was also entitled to be treated as belonging to the Scheduled Tribe. Thus
she had the status of a Scheduled Tribe and hence was qualified to contest H
    854                     SUPREME COURT REPORTS                  (2005) l S.C.R.

A the election from a constituency reserved for Scheduled Tribes. The Election
  Petitioners,, on the other hand, denied that Simhachalam had earlier married
  Ladda Appala Swamy as alleged by the appellant and also denied that Murahari
  Rao, her father, had earlier married Kalavathi as claimed by the appellant.
  They pleaded that Murahari Rao and Simhachalam were married and all the
  six children including the appellant were born to them in a lawful wedlock.
B The High Court, on the evidence, came to the conclusion that there was no
  evidence to establish that the mother of the appellant Simhachalam had earlier
  married Ladda Appala Swamy. It further held that even ifthere was any such
  marriage, the same must be taken to have been terminated before Simhachalam        •
  started living with Murahari Rao. The High Court held that Murahari Rao
C had married Simhachalam, the mother of the appellant, and six legitimate
  children were born to Murahari Rao and Simhachalam. Since a child took the
  caste of her father, the appellant had to be considered a Sistu Karnam and
  could not be considered to be a member of the Bhagatha Community. The
  High Court also held that the appellant had failed to establish that there was
  a marriage between Murahari Rao and Kalavathi as alleged by her. There
D was, thus, no impediment in Murahari Rao formally and legally marrying
  Simhachalam and begetting six children through her. It then considered the
  question whether by virtue of the marriage of the appellant with Appala Raju,
  her maternal uncle who belonged to the Bhagatha Community, she could be
  considered to be a member of the Bhagatha Community, a Scheduled Tribe.
                                                                                     '·
E The High Court, based on a decision of this Court, held that she could not
  claim the benefit of reservation to contest from a reserved constituency merely
  because of her marriage to a Scheduled Tribe when she herself belonged to
  a forward community. It was on these findings that the challenge to the
  election of the appellant was upheld.

F       4. Before the trial court, PWs, I to 11 were examined on behalf of the
  Election Petitioners, in addition to marking Exhibits A. I to A.6. On behalf
  of the appellant, RWs. I to I0 were examined and Exhibits B. I to B.35 were
  marked. Exhibits X. I to X.32 were marked through witnesses summoned.
  The evidence on the side of Election Petitioners was to the effect that the
  father of the appellant had married Simhachalam, the mother of the appellant,
G that they were living together; that they had begotten six children including
  the appellant; that they were recognized as husband and wife in the village
  and that the children were brought up as Sistu Karnams and not as persons
  belonging to the Bhagatha Community. On behalf of the appellant, her father,
  her mother, her husband, Kalavathi, the alleged wife of Murahari Rao, the
H brother of Kalavathi, the father of Kalavathi and three others were examined
           S.H. DEVI v. S.G. SWAMY [BALASUBRAMANY AN . .I.)             855
in addition to she herself getting examined. Simhachalam and Murahari Rao, A
the mother and father of the appellant, even while admitting parenthood, tried
to give evidence that they were never formally married. An attempt was
made by the other relatives to support that story. But the trial court, on a
proper appreciation of the evidence, in the light of the circumstances disclosed
and the admissions made by these witnesses, came to the conclusion that the
plea of absence of marriage between Murahari Rao and Simhachalam could B
not be accepted in the light of the evidence available and in the light of the
long cohabitation and the birth of six children including the appellant and the
presumption arising therefrom.

       5. We were taken elaborately through the judgment of the High Court, C
the pleadings and the evidence of the witnesses examined on either side with
particular reference to the evidence of the appellant as RW-1, her father RW-
2, her mother, RW-7 and RW-4, 8 and 10, Kalavathi, her brother and her
father. On going through the evidence of these witnesses, we are inclined to
agree with the conclusion of the High Court that there are enough admissions
in the evidence of ttrese witnesses which clearly go to prove that Murahari D
Rao and Simhachalam, the parents of the appellant, long cohabited together,
begot children and were recognized as husband and wife by the community.
This especially in the context of the documentary evidence adduced in the
High Court which were again brought to our notice by learned counsel for
the respondents. In short, we find that the finding of the High Court that E
Murahari Rao and Simhachalam were married and the six children including
the appellant were born in that wedlock and that it was not possible to hold
that there was only a concubinage and the six children including the appellant
were born out of that relationship and out of wedlock is unexceptionable.
Similarly, we also do not find much merit in the challenge to the finding that
the appellant had failed to prove that Simhachalam had earlier married Ladda F
Appala Swamy or that there was any subsisting relationship between
Simhachalam and Ladda Appala Swamy which could stand in the way of a
valid marriage between Murahari Rao and Simhachalam. Equally, we find
that the finding rendered by the High Court that the appellant had failed to
show that her father Murahari Rao had earlier married Kalavathi, his sister's G
daughter, is also fully justified especially if one were to read the evidence of
Kalavathi, her brother, her father and RW-9, examined on behalf of the
appellant.

    6. We find that the conclusion that there was a valid marriage between
Murahari Rao, the father of the appellant and Simhachalam, the mother of the H
    856                    SUPREME COURT REPORTS                   [2005) l S.C.R.

A appellant, stands strengthened by the presumption available in law arising out
  of the long cohabitation ofMurahari Rao and Simhachalam. The Privy Council
  in Mohabbat Ali Khan v. Muhammad Ibrahim Khan and Ors., AIR (1929)
  PC 135, held that the law presumes in favour of marriage and against
  concubinage, when a man and a woman have cohabited continuously for a
  number of years. This Court in Gokal Chand v. Parvin Kumari, AIR ( 1952)
B SC 231, held that continuous cohabitation of a man and a woman as husband
  and wife and their treatment as such for a number of years may raise the
  presumption of marriage. But the presumption which may be drawn from
  long cohabitation is rebuttable, and if there are circumstances which weaken
  or destroy that presumption, the Court cannot ignore them. We must say that
C on the evidence here, including the documentary evidence relied on by the
  High Court, the presumption arising from long cohabitation ofMurahari Rao
  and Simhachalam of a valid marriage between them, gets strengthened and
  there is no material circumstance which can be said to rebut such presumption
  arising from long cohabitation. The arising of a presumption, though rebuttable,
  has also been noticed by this Court in S.P.S. Ba!asubramanyam v. Suruttayan
D Alias Andalipadayachi and Ors., [1994] I SCC 460, and in Ranganath
  Parmeshwar Panditrao Mali and Anr. v. Eknath Gajanan Kulkarni and Anr.,
  (199617 SCC 681. We may also incidentally notice that even assuming that
  there was any earlier marriage between Simhachalam, the mother of the
  appellant and Ladda Appala Swamy at a time whenI Simhachalam was allegedly
E eight years old, the same also can be presumed to have been terminated
  especially in the context of the subsequent long cohabitation ofMurahari Rao
  and Simhachalam and the evidence on the side of the appellant herself that
  the alleged marriage between Simhachalam and Ladda Appala Swamy was
  when Simhachalam was eight years old; that the said marriage was never
  consummated and that Simhachalam had left Ladda Appala Swamy
F immediately after marriage and had never lived with him. It is undisputed
  that divorce was permitted in the community. In this context the ratio of the
  decision in Raja Ram v. Deepa Bai, (1973) MPLJ 626 could be applied.
  Thus, on the whole, we agree with the finding of the High Court that there
  was a valid marriage between Murahari Rao and Simhachalam, the father and
G the mother of the appellant and that the appellant was a legitimate daughter
  of that union.

        7. Learned counsel for the appellant, in spite of her efforts, could not
  show any serious flaw in the appreciation of evidence by the High Court
  while coming to the conclusion that there was a marriage between Murahari
H Rao and Simhachalam. Learned counsel could not successfully challenge the
                     S.H. DEVI v. S.G. SWAMY [BALASUBRAMANY AN, J.]                857
    ..,
          finding of the High Court that the appellant could not prove that her mother A
          Simhachalam was earlier married to Ladda Appala Swamy and that marriage
          was subsisting or that the father of the appellant Murahari Rao had earlier
          married Kalavathi and that marriage was subsisting. Learned counsel, no
          doubt, contended that the appellant must be treated to be an illegitimate
          daughter of Murahari Rao and Simhachalam and if so treated, the appellant
          could be considered to be a person of the caste of her mother and so viewed, B
          could be considered to belong to Bhagatha Community, a Scheduled Tribe.
          Learned counsel further contended that in any view, since the appellant had
          married Appala Raju, a person belonging to the Bhagatha Community, and
          she having been brought up as a member of the Bhagatha Community and
          accepted by that community as a member thereof, her status as a member of      c
          the Bhagatha Community had to be upheld especially in the context of the
          certificate issued to her by the concerned authority under the Andhra Pradesh
          (Scheduled Castes, Scheduled Tribe and Backward Classes) Regulation of
          Issue of Community Certificate Act, 1993.

                8. Elaborating her argument, learned counsel for the appellant contended D
          that even though the appellant was born to Murahari Rao, a Sistu Karnam,
          she was still being treated as a member of the Bhagatha Community to which
    >
          her mother belonged and that she had married a person belonging to the


•
          Bhagatha Community; that the Bhagatha Community had always accepted
          her as belonging to that community and in such a situation, she must be
          considered to belong to the Bhagatha Community, a Scheduled Tribe and
                                                                                           E
          hence eligible to contest from a constituency reserved for the Scheduled
          Tribes. That the appellant had married Appala Raju, her maternal uncle
          belonging to the Bhagat ha Community, is not in dispute. But the claim of the
          appellant that she was being brought up and was being recognized as a
          member belonging to the Bhagatha Community, cannot be accepted in the F
          face of the evidence discussed by the High Court including the documentary
    >     evidence relied on by it. The document Exh. 10 and the entry therein marked
          as Exh. X-11 relating to the appellant, show her caste as Sistu Karnam and
          not as Bhagatha. This entry was at an undisputed point of time. Moreover,
          the evidence also shows that she was always being educated at Visakhapatnam
          and she was never living as a tribal in Bhimavaram village to ,which her G
          mother's family belongs. There is no reason for us to differ from the conclusion
          of the High Court on this aspect. Faced with this position, learned counsel for
          the appellant pitched her case on the fact that the appellant had married a
          person belonging to a Scheduled Tribe and had thereby acquired membership
          in that community and consequently, she must be treated as a member of the H
    858                     SUPREME COURT REPORTS                  [2005) I S.C.R.

A Scheduled Tribe. Learned counsel placed reliance on the decision of this
    Court in NE. Horo v. Smt. Jahan Ara Jaipal Singh, AIR (1972) SC 1840,
    to contend that once a marriage of a male pertaining to a Scheduled Tribe
    with a female pertaining to a non Scheduled Tribe was approved or sanctioned
    by the concerned Panchayat they became members of the community and
    even if a female is not a member of a tribe by virtue of birth, but she had
B   been married to a tribal after due observance of all formalities and after
    obtaining the approval of the elders of the tribe, she would belong to the
    tribal community to which her husband belongs on the analogy of the wife
    taking the domicile of the husband. Learned counsel also referred to the
    decision in Valsamma Paul (Mrs.) v. Cochin University and Ors., [1996] 3
c   sec 545, in support, though the said decision has been relied on by the High
    Court for negating the claim of the appellant in that regard.

          9. What is contended by learned counsel for the appellant is that on the
    marriage of the appellant with Appala Raju in the customary form of the
    Bhagatha Community, the appellant had been recognizetl as a member of the
D   Bhagatha Community and accepted as such by the members of that community
    and consequently, the appellant must be taken to have acquired membership
    of the Bhagatha Community. First of all, we must point out that the High
    Court, in our view, has rightly held that there was nothing to show that the     •
    marriage of the appellant with Appala Raju took place in the customary mode
E   followed by the Bhagatha Community. On the other hand, as noticed by the
    High Court, the available evidence tends to indicate that the marriage was
    more in the form followed by Sistu Karnams, the community to which her
    father belonged. Secondly, as noticed by the High Court, there is nothing to
    show that the appellant was accepted by the Bhagatha Community of
    Bhimavaram as a member of that community. As discussed by the High
F   Court based on the evidence in the case, the indication available was that the
    appellant hardly resided in Bhimavaram village to which her maternal grand-
    father belonged and there was no occasion for that community to treat her as
    a member of that community. There is also nothing to show that the appellant
    followed the way of life of that community.

G       I0. What then remains is the fact that the appellant though assigned the
  caste of her father Murahari Rao, namely, the Sistu Karnam community, had
  married a tribal belonging to the Bhagatha Community. On the basis of this
  marriage, it is argued that she must be taken to have acquired membership
  in the community of her husband and consequently treated as a member of
H that community. It is in that context that the decision in Horo (supra) was            -
                  SR DEVI v. S.G. SWAMY [BALASUBRAMANY AN, J.]                  859
       relied on. It is also contended that the decision in Haro (supra) related to an A
       election dispute and consequently, the ratio of that decision should govern
       the present case. We have already indicated that there is nothing to show that
      the marriage of the appellant with Appala Raju was sanctioned or approved
      by the elders of the Bhagatha Community or the concerned Panchayat .or was
       in tribal form or that the formalities attending such a tribal marriage were B
      observed and the marriage was performed after obtaining the approval of the
      elders of the tribe. Even otherwise, we have difficulty in accepting the position
      that a non-tribal who marries a tribal could claim to contest a seat reserved
••    for tribals. Article 332 of the Constitution speaks of reservation of seats for
      Scheduled Tribes in Legislative Assemblies. The object is clearly to give
      representation in the legislature to Scheduled Tribe candidates, considered to C
      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 Va/samma Paul (Mrs.) v.
      Cochin University and Ors., (supra), supports this view. Neither the fact that
      a non-backward female married a backward male nor the fact that she was
      recognized by the community thereafter as a member of the backward D
      community, was held to enable a non-backward to claim reservation in terms
      of Articles 15(4) or 16(4) of the Constitution. Their Lordships after noticing
      Bhoobun Moyee v. Ram Kishore, (1865) 10 MIA 279, and Lulloobhoy
      Bappoobhoy Cassidass Moolchund v. Cassibai, (1879-80) 7 IA 212, held
      that a woman on marriage becomes a member of the family of her husband E
      and thereby she becomes a member of the caste to which she has moved. The
      caste rigidity breaks down and would stand as no impediment to her becoming
      a member of the family to which the husband belongs and to which she gets
      herself transplanted. Thereafter, this Court noticed that recognition by the
      community was also important. Even then, this Court categorically laid down
      that the recognition of a lady as a member of a backward community in view F
      of her marriage would not be relevant for the purpose of entitlement to
      reservation under Article 16(4) of the Constitution for the reason that she as
      a member of the forward caste, had an advantageous start in life and a
      marriage with a male belonging to a backward class would not entitle her to
      the facility of reservation given to a backward community. The High Court G
      has applied this decision to a seat reserved in an election in terms of Article
      332 of the Constitution. We see no reason why the principle relating to
""'   reservation under Articles 15(4) and 16(4) laid down by this Court should not
      be extended to the constitutional reservation of a seat for a Scheduled Tribe
      in the House of the People or under Article 332 in the Legislative Assembly.
      The said reservations are also constitutional reservations intending to benefit H
    860                      SUPREME COURT REPORTS                    [2005] 1 S.C.R.

A   the really underprivileged and not those who come to the class by way of
    marriage. To the extent the decision in Horo (supra) can be said to run
    counter to the above view, it cannot be accepted as correct. Even otherwise,
    in the absence of evidence on the relevant aspects regarding marriage in
    tribal form and acceptance by the community, the decision in Horo (supra)
B   cannot come to the rescue of the appellant. On a consideration of the relevant
    aspects, we are of the view that whether it be a reservation under Articles
     15(4) or 16(4) or 330 and 332, the said reservation would benefit only those
    who belong to a Scheduled Caste or Scheduled Tribe and not those who
    claim to acquire the status by marriage, like the appellant in this case. Thus,
     in our view, the High Court was fully justified in coming to the conclusion
C   that the appellant could not claim the right to contest a seat reserved for a
     Scheduled Tribe in terms of Article 332 of the Constitution of India merely
    by virtue of her marriage to a person belonging to a Scheduled Tribe.

         11. What remains is the argument based on the certificates allegedly
  issued under The Andhra Pradesh (Scheduled Castes, Scheduled Tribes and
D Backward Classes) Regulation of Issue of Community Certificate Act, 1993.
  The High Court has not accepted the certificates as binding for the reason
  that the evidence showed that the certificates were issued based on the influence
  exercised by the appellant as a member of the Legislative Assembly, one
  after another, immediately on an application being made and without any due
E or proper enquiry. We are impressed by the reasons given by the High Court
  for not acting on these certificates. That apart, a reference to Section 3 of the
  Act would indicate that a certificate thereunder, insofar as it relates to elections,
  is confined in its validity to elections to local authorities and co-operative
  institutions. It does not embrace an election to the Legislative Assembly or
  to the Parliament. Therefore, in any view of the matter, it cannot be said that
F the High Court, exercisingjurisdiction under The Representation of The People
  Act in an Election Petition is precluded from going into the question of status
  of a candidate or proceeding to make an independent inquiry into that question          -<
   in spite of the production of a certificate under the Act. At best, such a
  certificate could be used in evidence and its evidentiary value will have to be
   assessed in the light of the other evidence let in in an Election Petition.
G Therefore, nothing turns on the factum of a certificate being issued by the
   concerned authority under the Act of 1993. We are also satisfied as the High
   Court was satisfied, that no proper inquiry preceded the issuance of such a
   certificate and such a certificate was issued merely on the say so of the
   appellant. We have, therefore, no hesitation in overruling this argument raised
H on behalf of the appellant.
                   S.H. DEVI v. S.G. SWAMY [BALASUBRAMANY AN, J.]                861
              12. Before we part with this case, we wish to express our dismay at the A
        extent to which a person could go to sustain her seat in the legislature. The
        appellant brands her five siblings and herself as bastards, and her mother a
        concubine. We desist from making any further observations on this aspect.

               13. On an anxious reconsideration of all relevant aspects, we are satisfied
        that the High Court was right in declaring the election of the appellant to the B
        concerned Legislative Assembly of Andhra Pradesh invalid. We, therefore,
        confirm that decision of the High Court and dismiss these appeals with costs.

        B.B.B.                                                    Appeals dismissed.




)




    )




~·