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CASE NO.: Appeal (civil)  7306 of 2005

PETITIONER: Meera Kanwaria                                                           

RESPONDENT: Sunita & Ors.                                                            

DATE OF JUDGMENT: 08/12/2005

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of Special Leave Petition (Civil) No.2106 of 2005]

S.B. SINHA, J :

       Leave granted.

Background fact :

       The First Respondent herein was Rajput by caste.  She married one  Ghanshyam on 09.12.2000, who was a member of Scheduled Caste.  The  marriage was performed as per Vedic Hindu Rites.  She  applied for and  granted a certificate of being belonging to Scheduled Caste by birth by the  Sub Divisional Magistrate (S.D.M.), Rajouri Garden, New Delhi, describing  her as a daughter of Ramaye, who in fact was her husband’s elder brother’s  father-in-law.   

An inquiry  was caused to be made by the Sub Divisional Magistrate   upon receiving a complaint that the said certificate contained wrong  declaration as she was  daughter of one Chinna Singh and not of Ramaye.  The said allegations were found to be correct.  It was also found that the  First Respondent’s Jethani’s name was also co-incidentally Sunita.  On the  said premise, the certificate granted in her favour was cancelled by an order  dated 10.07.2002 and a criminal case under Sections 406, 420, 469 and 471  of the Indian Penal Code was registered.  The said criminal case is still  pending.

Election Proceedings :   The First Respondent herein contested an election for the Municipal  Councilor from Ward No.20, Subhash Nagar Ward of Municipal  Corporation of Delhi,  Assembly Constituency No.13, a seat reserved for a  Scheduled Caste woman.  She was declared elected.  The Appellant herein  was also a candidate.  Whereas the First Respondent got 14,757 votes, the  Appellant herein got 13,755 votes.

       One Krishan Lal filed an election petition before the District Judge,  Delhi in terms of the provisions of the Delhi Municipal Corporation Act,  1957, wherein, inter alia a prayer was made to the effect that the Appellant  herein be declared elected.  The contention of the election petitioner in the  said proceedings was that as the First Respondent herein was born in an  upper caste family, she could not have been considered to be belonging to  Scheduled Caste by reason of her marriage only.  The Appellant  indisputably was arrayed as Respondent No.2.  In the said proceedings, the  learned judge, inter alia, framed the following issues :

"4.     Whether the respondent No.1 belongs to a

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scheduled caste category ?

5.      Whether the respondent No.1 acquired the status of  scheduled caste by virtue of her marriage with a  Jatav notified as scheduled caste category for the  purpose of her eligibility to contest municipal  election in Delhi ?

6.      Whether the election of respondent No.1 as a  municipal councilor from Ward No.20 is liable to  be  declared  void on facts mentioned to the  petition ?   

7.      If issue No.6 is decided in affirmative whether  respondent No.2 is entitled to be declared elected  from Ward No. 20 as municipal councilor ?"  

Issue Nos. 4 and 5 were taken up for consideration together.  Relying,  inter alia, upon a decision of this Court in Mrs. Valsamma Paul v. Cochin  University and Others   [AIR 1996 SC 1011], the learned Judge opined :

       "25.    In view of the above testimony of  respondent No.1 in her cross-examination, no manner of  doubt is left in my mind except to hold that respondent  No.1 has manipulated a scheduled caste certificate by  hoodwinking the legal process.  By no means she can be  said to have acquired the status of scheduled caste merely  because of her marriage with scheduled caste person.   Hence, both these issues are decided against respondent  No.1"

Having regard to the aforementioned findings, the election of the First  Respondent herein was held to be void and of no effect and was  consequently set aside.  Issue No.7 was, however, not pressed.   

High Court Proceedings : A writ petition was filed there-against by the First Respondent before  the Delhi High Court.  The High Court in its judgment noticed several  decisions of this Court and  opined  that as the First Respondent was  accepted by her husband’s family and biradari, the judgment of the learned  District Judge was unsustainable.  The High Court distinguished Valsamma  Paul (supra) on the premise that ’principle of reservation contained in  Articles 15(4) and 16(4) of the Constitution of India would be different in a  case wherein individual claims entitlement to other benefits that may be due  to a person belonging to  Scheduled Caste’.  It was furthermore opined that  the learned District Judge committed an error in not accepting the contention  of the First Respondent  that she had not been accepted by the community of  her husband. Subsequent cancellation of the Scheduled Caste Certificate by  the S.D.M. was  held to be irrelevant.

Maintainability of the Appeal :         Mr. R.K. Jain, the learned Senior Counsel appearing on behalf of the  First Respondent, at the outset, would take a preliminary objection as regard  the Appellant’s locus standi to maintain this appeal  drawing our attention to  the findings of the learned Trial Judge that the Appellant herein did not file  any written statement nor any oral arguments were advanced on her behalf.   Strong reliance, in this behalf, has been placed on Thammanna v. K. Veera  Reddy and Others [(1980) 4 SCC 62].  We are not persuaded to accept the  said contention.

       In Thammanna (supra), this Court found that at no stage of the

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proceedings, the Appellant before it took any part in the proceedings.   Having regard to Section 116-C of the Representation of the People Act,   1951, it was held that the person would be entitled to maintain an appeal if  the following conditions are satisfied :   "(1)    that the subject-matter of the appeal is a conclusive  determination by the High Court of the rights with  regard to all or any of the matters in controversy,  between the parties in the election petition,

(2)     that the person seeking to appeal has been a party  in the election petition, and          (3)     that he is a "person aggrieved", that is a party who  has been adversely affected by the determination."

       As of fact it was found that condition nos.1 and 3 had not been  satisfied holding :   "\005Before the High Court the appellant did not, at any  stage join the contest. He did not file any written  statement or affidavit. He did not engage any counsel. He  did not cross-examine the witnesses produced by the  election-petitioner and the contesting Respondent 1. He  did not appear in the witness-box. He did not address any  arguments. In short, he did nothing tangible to participate  in  the  proceedings  before  the  High Court." It was further noticed therein that the Appellant was not a necessary party to  the election petition and, thus, it was not obligatory for the election  petitioner to join him as a respondent.   The said decision has no application in the instant case, as the  Appellant herein took part in the election petition through her counsel,.  although she might not have filed a written statement. She was a necessary  party.  A prayer was made in the election petition that she be declared to  have been elected.  We have noticed hereinbefore that the election petition  succeeded in part.  In the appeal preferred there-against by the First  Respondent, the Appellant alone was the contesting respondent.  Prayer (b)  made in the Election Petition, was to her benefit.  She filed the present  appeal only because she is aggrieved by the decision of the High Court.

Contentions : On merits Ms. Pinky Anand, the learned counsel appearing on behalf  of the Appellant, submitted that the judgment of the High Court is  unsustainable as the same runs counter to a three-Judge Bench decision of  this Court in Sobha Hymavathi Devi v. Setti Gangadhara Swamy and Others  [(2005) 2 SCC 244] wherein one of us (Balasubramanyan, J.)  was a  member.           It was urged that the certificate obtained by the First Respondent was  a fraud on the Constitution.  Reliance, in this behalf, has been placed on  Lillykutty v. Scrutiny Committee, S.C. & S.T. and Others [JT 2005 (12) SC  569].         Mr. Jain, on the other hand, would submit that in the facts and  circumstances of this case, the alleged fraud committed by the First  Respondent would not be deterrent for the purpose of holding that she  became a member of the Scheduled Caste as her marriage was accepted by  the community.  Placing strong reliance on the decisions of this Court in  C.M. Arumugam v. S. Rajgopal and Others [(1976) 1 SCC 863], The  Principal, Guntur Medical College, Guntur and Others v. Y. Mohan Rao  [(1976) 3 SCC 411] and Kailash Sonkar v. Smt. Maya Devi [(1984) 2 SCC  91], it was argued that in view of the finding of fact arrived at by the High  Court that she had been accepted by the community, the impugned judgment  should not be interfered with.         It was submitted that even in the decisions of this Court in  Sobha  Hymavathi Devi (supra) and Lillykutty (supra), the question which fell for

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consideration was as to whether upon marriage by a girl belonging to a  forward class with a boy who belongs to Scheduled Caste or Scheduled  Tribe, the caste will change as thereby she stands transplanted in her  husband’s family. Findings of the District Judge :         Before adverting to the questions of law raised before us, we would  notice the findings of fact arrived at by the learned District Judge.  The  learned District Judge relied upon a circular letter of the Central Government  wherein it was stated :

"The guiding principle is that no person who was  not a scheduled caste/tribes by birth will be deemed to be  member of scheduled caste or scheduled tribe merely  because he or she married person belonging to scheduled  or scheduled tribes.

       N.E. Horo (supra) was also distinguished on the ground that therein  the lady who married a person belonging to Munda tribe had proved the  custom by which she was admitted in tribunal community after her marriage,  which fact is absent in the instant case, stating : "\005It shall be significant to mention that respondent No.1  in her cross-examination has admitted that her marriage  had taken place as per Vaidic Hindu Rites and no special  ceremony was held either before or at the time of  marriage or after her marriage for conversion of her caste  from Rajput to Jatav.  She further testified that no  panchayat or Jatav Community was held to accept her as  a member of Jatav caste.  However, the respondent No.1  has testified in para 3 of the affidavit Ex.R-1 filed in her  evidence-in-chief that she was fully accepted by the  Biradari/Community of Jatavs as its member.  In order to  prove her said point the respondent No.1 has examined  her father-in \026law, husband and three more releatives of  her husband who all have testified that they had accepted  the marriage of respondent No.1 with a Jatav husband  and that they had attended that wedding.  Confronted  with this situation, the counsel for the petitioner asked  respondent No.1 in her cross-examination to explain the  word "Biradari" used in her affidavit Ex.P1.  Since  clarified the meaning of word "Biradari" employed by  her in para 3 of her affidavit R1 by saying that by the  word "Biradari" she means elders of her husband’s  family.  This position taken by respondent No.1 in her  cross-examination does not vindicate her point that she  was admitted into Jatav Community by any custom or  any other Hindu Tradition."

Caste issue :         It is not disputed that the marriage took place as per Vedic Hindu  Rites. The marriage was attended by her father-in-law, husband and three  more relatives, who stated that they had accepted the marriage with her Jatav  husband and they had attended that wedding.  The term "Biradari" has also  been explained  by the First Respondent stating that the same denotes elders  of her husband’s family.  It is one thing to say that a lady belonging to a  forward caste has been accepted by the community to which her husband  belongs; but it is another thing to say that her marriage has been accepted  only by her husband’s family.  The question as regard change of caste in  view of her marriage although may be relevant in relation to Hindus, but  when the question of change of caste is referable to the category belonging  to a special class of citizens who require protective discrimination and  affirmative action, a different rule will apply.  The burden of proof therefor  indisputably would be on the person who affirms the same.,   In Punit Rai v. Dinesh Chaudhary [(2003) 8 SCC 204], wherein one of  us was a member, this Court opined :

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 "On behalf of the respondent, the citation of certain  decisions has also been furnished but those decisions  would be of no help to the respondent. Reliance has been  placed upon Jeet Mohinder Singh v. Harminder Singh  Jassi7 where it has been held that a party upon whom the  burden lies to prove a fact, but fails to discharge his onus,  it is not open for him to bank upon the plea of non- examination of witness by the other party. The appellant,  it was held, cannot be permitted to derive strength from  the weakness of the case of the other party. We feel that  this case would not be applicable in the facts and  circumstances of the case in hand. On the other hand, the  onus to prove facts within the special knowledge of  Respondent 1, would lie upon him alone to prove those  facts. We have already held that best evidence of the  respondent’s case that his mother was a Pasi has been  withheld. In this connection, we may peruse Section 106  of the Evidence Act also which reads as under:  "106. When any fact is especially within the  knowledge of any person, the burden of proving that fact  is upon him.""

       It was further opined :

"Determination of caste of a person is governed by the  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, therefore, will be the determinative factor in  absence of any law.  

       This Court held that the State will have no jurisdiction to reserve a  constituency for a person who does not belong to the reserved category for  whose benefit it was constituted except  by way of a legislation, stating :

"If a customary law is to be given a go-by for any  purpose whatsoever and particularly for the purpose of  enlarging the scope of a notification issued by the  President of India under clause (1) of Article 341 of the  Constitution of India, the same must be done in terms of  a statute and not otherwise."

       Reference, in this connection, may be made to a Constitution Bench  decision of this Court in E.V. Chinnaiah etc. v. State of A.P. and Others   [(2005) 1 SCC 394], wherein it was held :

"Reservation must be considered from the social  objective angle, having regard to the constitutional  scheme, and not as a political issue and, thus, adequate  representation must be given to the members of the  Scheduled Castes as a group and not to two or more  groups of persons or members of castes.

The very fact that the members of the Scheduled  Castes are most backward amongst the backward classes  and the impugned legislation having already proceeded  on the basis that they are not adequately represented both  in terms of clause (4) of Article 15 and clause (4) of  Article 16 of the Constitution, a further classification by  way of micro-classification is not permissible. Such

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classification of the members of different classes of  people based on their respective castes would also be  violative of the doctrine of reasonableness. Article 341  provides that exclusion even of a part or a group of castes  from the Presidential List can be done only by  Parliament. The logical corollary thereof would be that  the State Legislatures are forbidden from doing that. A  uniform yardstick must be adopted for giving benefits to  the members of the Scheduled Castes for the purpose of  the Constitution. The impugned legislation being  contrary to the above constitutional scheme cannot,  therefore, be sustained."

       The burden must be fully discharged beyond all reasonable doubts.  In  N.E. Horo  (supra), this Court held :          "Even if a female is not a member of tribe by  virtue of birth. She having been married to a tribal after  due observance of all formalities and after obtaining the  approval of the elders of the tribe would belong to the  tribal community to which her husband belongs on the  analogy of the wife taking the husband domicile."

       Yet again in Valsamma Paul (supra), it was held :

       "A candidate who had the advantageous start in  life being born in forward caste 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 or reservation either under Article  15(4) or 16(4), as the case may be.  Acquisition of the  status of Scheduled Caste etc. by voluntary 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\005"

       It is, therefore, beyond any doubt or dispute that a person who is a  high caste Hindu and not subjected to any social or educational or  backwardness in his life; by reason of marriage alone cannot ipso facto  become a member of Scheduled Caste or Scheduled Tribe.  In absence of  any strict proof he cannot be allowed to defeat the very provisions made by  the State for reserving certain seats for disadvantaged people.         The High Court may or may not be right in holding that no special  ceremony was required for conversion from upper caste to Jatav, but the  finding of fact arrived at by the learned  District Judge that her marriage had  taken place as per Vedic Hindu Rites and her marriage has been accepted by  her Biradari meaning thereby elders of her husband’s family only cannot be  held to be the same as that she had been accepted by the community of her  husband.   We may notice that in State of Kerala and Another  v. Chandra  Mohanan [(2004) 3 SCC 429], a three-Judge Bench after noticing the said  decisions opined : "The customary laws of a tribe not only govern his  culture, but also succession, inheritance, marriage,  worship of Gods etc. The characteristics of different  tribes despite the fact that they have been living in the  same area for a long time are different. They indisputably  follow different Gods. They have different cultures. Their  customs are also different."

       It was further observed :

"Before a person can be brought within the purview  of the Constitution (Scheduled Tribes) Order, 1950, he  must belong to a tribe. A person for the purpose of  obtaining the benefits of the Presidential Order must

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fulfil the condition of being a member of a tribe and  continue to be a member of the tribe. If by reason of  conversion to a different religion a long time back, he/his  ancestors have not been following the customs, rituals  and other traits, which are required to be followed by the  members of the tribe and even had not been following the  customary laws of succession, inheritance, marriage etc.  he may not be accepted to be a member of a tribe. In this  case, it has been contended that the family of the victim  had been converted about 200 years back and in fact the  father of the victim married a woman belonging to a  Roman Catholic, wherefrom he again became a Roman  Catholic. The question, therefore, which may have to be  gone into is as to whether the family continued to be a  member of a Scheduled Tribe or not. Such a question can  be gone into only during trial." . In Lillykutty (supra), Thakker, J., speaking for the Division Bench  clearly held that once a certificate is cancelled, the election is also liable to  be cancelled.  It may be true that in terms of the rules framed under the Delhi  Municipal Corporation Act, it was not necessary for the First Respondent  herein to produce the caste certificate  at the time of filing of nomination as a  declaration in that behalf subserve the purpose.  But such a caste certificate  was necessary having regard to the fact that in the event a dispute or doubt  arises as regard the question as to whether the conditions precedent for filing  the nomination are fulfilled or not.  The Returning Officer was required to   arrive at a prima facie finding that the candidate belonged to Scheduled  Caste.  She applied for grant of a Scheduled Caste Certificate on the basis  that she was Scheduled Caste by birth.  Her claim has been found to be  incorrect.  Unless it is established as of fact that she had been accepted as a  member of Scheduled Caste by the community as contra-distinguished from  acceptance of her marriage by her husband’s family, in our opinion, she  cannot claim the benefit of her reservation.         We, therefore, with respect, express our disapproval to the findings of  the High Court.         In Sobha Hymayathi Devi (supra), it was held           

"\005First of all, we must point out that the High Court,  in our view, has rightly held that there was nothing to  show that the marriage of the appellant with Appala Raju  took place in the customary mode followed by the  Bhagatha community. On the other hand, as noticed by  the High Court, the available evidence tends to indicate  that the marriage was more in the form followed by Sistu  Karnams, the community to which her father belonged.  Secondly, as noticed by the High Court, there is nothing  to show that the appellant was accepted by the Bhagatha  community of Bhimavaram as a member of that  community. As discussed by the High Court based on the  evidence in the case, the indication available was that the  appellant hardly resided in Bhimavaram village to which  her maternal grandfather 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." Overruling N.E. Horo v. Smt. Jahan Ara Jaipal Singh [AIR 1972 SC 1840],  it was held :

"\005 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

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candidates, considered to be deserving of such special  protection. To permit a non-tribal under cover of a  marriage to contest such a seat would tend to defeat the  very object of such a reservation. The decision of this  Court in Valsamma Paul v. Cochin University supports  this view. Neither the fact that a non-backward female  married a backward male nor the fact that she was  recognised by the community thereafter as a member of  the backward community, was held to enable a non- backward to claim reservation in terms of Article 15(4)  or 16(4) of the Constitution. Their Lordships after  noticing Bhoobum Moyee Debia v. Ram Kishore Acharj  Chowdhry and Lulloobhoy Bappoobhoy Cassidass  Moolchund v. Cassibai held that a woman on marriage  becomes a member of the family of her husband and  thereby she becomes a member of the caste to which she  has moved. The caste rigidity breaks down and would  stand as no impediment to her becoming a member of the  family to which the husband belongs and to which she  gets herself transplanted. Thereafter, this Court noticed  that recognition by the community was also important.  Even then, this Court categorically laid down that the  recognition of a lady as a member of a backward  community in view of her marriage would not be relevant  for the purpose of entitlement to reservation under  Article 16(4) of the Constitution for the reason that she as  a member of the forward caste, had an advantageous start  in life and a marriage with a male belonging to a  backward class would not entitle her to the facility of  reservation given to a backward community. The High  Court has applied this decision to a seat reserved in an  election in terms of Article 332 of the Constitution. We  see no reason why the principle relating to reservation  under Articles 15(4) and 16(4) laid down by this Court  should not be extended to the constitutional reservation  of a seat for a Scheduled Tribe in the House of the People  or under Article 332 in the Legislative Assembly. The  said reservations are also constitutional reservations  intending to benefit the really underprivileged and not  those who come to the class by way of marriage. To the  extent the decision in Horo6 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 cannot come to  the rescue of the appellant\005"   

       In Sandhya Thakur v. Vimla Devi  Kushwah and Ors. [JT 2005 (1) SC  556,  this Court held :         "In the light of the decision in Valsamma Paul v.  Cochin University and Others (supra) and our decision  rendered today in Sobha Hymavathi Devi v. Setti  Gangadhara Swamy, which were heard along with this  appeal, it must be held that the appellant, who by birth  did not belong to a backward class or community, would  not be entitled to contest a seat reserved for a backward  class or community, merely on the basis of her marriage  to a male of that community\005"  

       The High Court, thus, committed a manifest error in coming to the  conclusion that the purposes of reservation under Articles 15(4) and 16(4) of  the Constitution, on the one hand, and Articles 330 and 332, on the other,   are different.           Sobha Hymavathi Devi  (supra), thus,   although recognized that in a  given case acceptance of such a marriage by the community may be held to

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subserve the purpose but in no uncertain terms held that reservation of a seat  for a Scheduled Tribe in the House of the People or under Article 332 in the  Legislative Assembly are constitutional reservations.   In all the decisions relied upon by Mr. Jain, namely, Arumugam  (supra), Mohan Rao (supra) and Kailash Sonkar (supra), this Court was  concerned with conversion and re-conversion having taken place while the  person concerned was minor.  In such a case, the doctrine of revival of the  caste was applied.  We, however, as at present advised need not dilate  further on the said question as nothing turn out therefrom for the purpose of  this case.         For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly. The Appeal is allowed.  No costs.