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PETITIONER: N. E. HORO

       Vs.

RESPONDENT: JAHAN ARA JAIPAL SINGH

DATE OF JUDGMENT02/02/1972

BENCH: GROVER, A.N. BENCH: GROVER, A.N. BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 1840            1972 SCR  (3) 361  1972 SCC  (1) 771  CITATOR INFO :  RF         1973 SC1406  (2)

ACT: Representation of the People Act (43 of 1951), s. 123(2) and (7)-Scope of. Customary Law-Mundas-Marriage between Munda male and a  non- Munda-Whether wife becomes a Munda.

HEADNOTE: The  respondent, who was a Tamil by birth and  Christian  by religion,  had married a member of the Munda Schedule  Tribe in the State of Bihar.  On the death of her husband, who was a  member  of the Lok Sabha, she stood for election  from  a Parliamentary  (Schedule Tribe) Constituency in  the  State. Another candidate B filed objections to her nomination  that she  was not a Munda and her nomination was rejected by  the Returning,  Officer,  and the appellant  was  elected.   She filed an Election Petition for setting aside the election of the  appellant.   She alleged that according to,  the  Munda Customary  Law when a Munda male married outside the  tribe, if  his marriage was accepted by the tribe, he continued  to be  a  member of the tribe and his wife  also  acquired  its membership, and so, she became a Munda.  In the petition  it was  also  stated  that while  hearing  B’s  objections  the Returning Officer allowed irrelevant personal aspersions  to be cast against her and that the Returning Officer had been influenced by B. The High Court allowed the petition. Dismissing the appeal to this Court, on the questions :  (1) Whether  B. was a necessary party to the Election  Petition; (2)  Whether  the  marriage of the  respondent,  who  was  a divorcee,  was a nullity under s. 57 of the  Indian  Divorce Act, 1869, in that she married her Munda husband within. six months from the date of the decree being made absolute; and- (3)  Whether  the  petitioner  became member  of  the  Munda Tribe, HELD  : (1) According to s. 82(b) of the  Representation  of the People Act, 1951, a petitioner must join as a respondent any candidate against whom    allegations  of  any   corrupt practices  are  made in the election petition.  Section  123 deals with corrupt practices. The essential ingredient of s. 123(7)  on which reliance was placed, is to obtain,  procure etc. by a candidates  of  any  assistance  (other  than  the

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giving  of  a vote)for the furtherance of the  prospects  of that candidate’s election from any person in the service  of the  Government and belonging to the classes.  mentioned  in the sub-section.  In the present case, there was  absolutely no  allegation or suggestion that the Returning officer  was influenced by B for the purpose of rendering assistance  for the furtherance of the prospects of a candidate’s  election. The  influence,  mentioned  in the  election  petition,  had reference  only to the conduct of the Returning  Officer  is allowing   personal  aspersions  to  be  cast  against   the respondent.   The  allegations  do not also  amount  to  any suggestion of direct or indirect interference or attempt  to interfere on the part of a candidate with the free  exercise of any electoral right, and hence, do not amount to  undue influence  under s. 123(2).  Therefore, since there  was  no allegation  of any corrupt practice against B be was  not  a necessary party. [366 D-H;368 A-G] 362               2  The  respondent had contracted  a  marriage               with a Member of the Munda Tribe according  to               Munda  rites  and ceremonies and  not  as  one               ,Christian marrying another Christian.  In the               absence   of  any  pleadings  .Or  issues   or               material on record to show that in view of the               provision, of Is. 57 of the Indian Divorce Act                             there could not be a valid marriage ,a ccording               to  Munda  customary law,  such  a  contention               could not be allowed to be agitated for  the-               first time in this Court. [369 D-G]               3(i)    The    information    contained     in               authoritative   books   dealing   with   Munda               Customary  Law and the evidence  of  witnesses               who  had made special research in the  matter,               show that : (a) The Mundas are endogamous  and               intermarriage  with  non-Mundas  is   normally               prohibited;  (b) A Munda male along  with  his               family,  on  marrying  a  non-Munda  girl,  is often   excommunicated or outcasted;  (c)  the               rule  of  endogamy is, however, not  so  rigid               that  a  Munda cannot marry a  non-Munda  even               after performing special ceremonies; (d)  Such               marriages  have been and are being  sanctioned               by Parha Panchayat, and (e) Where a Munda male               and  his family are outcasted for  marrying  a               non-Munda  they are readmitted .to  the  tribe               after    certain   special   ceremonies    are               performed. [376 C-F]               In the present case, there is no evidence that               the deceased husband of the respondent was ex-               communicated  or  outcasted  because  he   had               married  a  non-Munda; on  the  contrary,  the               evidence is that the rule of endogamy has  not               been  observed in a rigid or strict form,  and               that  the marriage was accepted as  valid  and               was approved by the Parha Panchayat and  the               elders  of the Tribe.  Once the marriage of  a               Munda male with a non-Munda female is approved               or  sanctioned by Parha Panchayat they  become               members  ,of  the community.   The  contention               that  a person can be a Munda by  birth  alone               can  be  sustained  only  if  the  custom   of               endogamy    is   established   with,out    any               exception. [377 A-D]               (ii)  Munda is one of the specified tribes  or

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             tribal  communities  in the ’Schedule  to  the               Constitution  (Schedule  Tribes)  Order  1952.               The  term ’tribal  community’  is  of  wider               connotation  than the expression  ’tribe’.   A               "person who, according to the strict custom of               a  tribe, cannot be regarded ,as a  member  of               that tribe may be regarded as a member of that               tribal community.  Where a non-Munda woman  is               married  to a Munda male and the  marriage  is               approved and sanctioned by the Pahra Panchayat               of that tribe, and the marriage is valid,  she               may  not, on the assumption that ’the rule  of               endogamy  prevails,  become a  member  of  the               Munda tribe in the stick sense as not  having               been  born  in  the  tribe.   But  a  marriage               between   a  Hinduised  Munda and  a   Munda               converted to Christianity is permitted.   That               being so, the wife cannot be excluded from the large r group, namely, the tribal  community.               In  the present case the  respondent’s  manage               with  a  Munda male having been  approved  and               sanctioned by the Pahra panchayat of the Munda               tribe, it can be said that she became a member               of the Munda tribal community.  When a person,                             in course ,of time, has been assimilat ed  into               the community that person cannot be denied the               rights  and privileges which may be  conferred               on  that  community, even  though  tribal,  by               Constitutional provisions. [377 E, H; .378  A-               El

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 909 of 1971. Appeal  under s. 116-A of the Representation of  the  People Act, 1951 from the judgment and order dated May 21, 1971  of the Patna High Court in Election Petition No. 2 of 1970. 363 Frank  Anthony, A. T. M. Sampath and E. C. A Agrawala,  for. the appellant. L.  M. Singhvi, Basudeva Prasad, Ravinder Narain and  P.  C. Bhartari, for the respondent. The judgment of the Court was delivered by Grover,  J. This is an appeal from a judgment of  the  Patna High  Court  holding  that  the  nomination  papers  of  the respondent  Smt.  Jahan Ara Jaipal Singh had been  illegally rejected  by  the Returning Officer.  For  that  reason  the election of the returned candidate Shri N. E. Horo from  the 51  Khunti Parliamentary (Scheduled Tribe)  Constituency  in the State of Bihar was set aside. On  May  1, 1970 the Election Commission of India  issued  a notification  calling  upon  the  above-named  Parliamentary Constituency  to  elect  a Member to the Lok  Sabha  in  the vacancy caused by the death of late Shri Jaipal Singh.   The last date for filing the nomination papers was May 8,  1970. The  date  for scrutiny was May 9,  1970.   Several  persons filed nomination papers including Theodore Bodra and others. Two   nomination,  papers  were  filed  on  behalf  of   the respondent  who  was a Congress (Ruling) candidate  for  the aforesaid by-election.  According to the respondent she  was the widow of late Shri Jaipal Singh and was a member of  the Munda  Scheduled  Tribe in the State of, Bihar.   She  filed certain  certificates  to  that  effect.   Bodra  filed   an

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objection   petition  to  the  nomination  papers   of   the respondent.  The Returning Officer, after hearing arguments, passed  an  order  rejecting the nomination  papers  of  the respondent.    The  nomination  papers  of  all  the   other candidates were accepted.  After the polling took place, the result of the election was announced on June 3, 1970 and the appellant  Shri Horo was declared elected to the Lok  Sabha. On July 8, 1970 the respondent filed an, election petition. In  the election petition it was stated inter alia that  the petitioner  (who is now respondent before us) was the  widow of  Late  Shri  Jaipal  Singh  and  belonged  to  the  Munda Scheduled  Tribe although she was a Christian  by  religion. It was averred in paragraph 3 of the petition that according to the Munda Customary Law when a Munda male married outside the Munda Tribe if his marriage is accepted by the Tribe  he continues  to  be a member of that Tribe and his  wife  also acquires its membership.  It was pleaded that the wife being a member of her husband’s family had the right of succession to  her  husband’s  property  as well.  In  para  4  of  the petition  it was stated that the petitioner was a  Tamil  by birth.  She married late Shri Jaipal Singh in the year 1954 364 according  to  the  rights  and rituals  of  Mundas  in  the presence of Parha Raja, Parha Munda, Parha Pahan,  relatives of  the deceased and the members of the Tribe at Morabadi  a Mohalla of Ranchi.  In paragraph 5 the ceremonies which were performed according ’to Munda custom were mentioned.   These ceremonies inter alia were the washing of the wife’s feet by the elder sister of the husband and the holding of the feast of the male goat meat and drinks of Handia etc.  A new  name was given by her mother-in-law to the petitioner, that  name being  Lankashri.   All these functions  were  witnessed  by Parha  Raja, Parha Munda, Parha Pahan and other  members  of the  Tribe.  In paragraph 6 more details were given  of  the various  other  ceremonies  also  which  were  performed  in connection  with  the  marriage.   After  referring  to  the relevant  provisions  of the Representation  of  People  Act 1951,  hereinafter called the ’Act’, it was stated that  the Returning Officer had illegally allowed irrelevant  personal aspersions  to  be  .cast  against  the  petitioner  by  her opponents.   It was alleged that the Returning  Officer  had been  influenced by Bodra who was the Chairman of the  Bihar Legislative Council.  The decision of the Returning  Officer that  the status of a Munda could be acquired only by  birth and  not by marriage and that the petitioner did not  belong to  the Munda Scheduled Tribe was challenged principally  on the ground that the Returning Officer had not considered the custom  by  which  if  a Munda  male  marries  a  women  not belonging  to Munda Tribe and that is accepted by the  Tribe the wife acquires the membership thereof. In  his written statement the returned candidate  Shri  Horo maintained that even though the election petitioner might be iving  as  wife  of late Shri Jaipal  Singh  she  was  never married  in  accordance with the custom of the  Munda  Tribe prevalent in Chhota Nagpur.  It was denied that she was ever accepted  as  a  member of the Munda community  as  no  such custom  is prevalent in that community.  It was denied  that the  ceremonies  and  rituals  mentioned  in  the   election petition  had been performed in respect of the  marriage  of the election petitioner with the late Shri Jaipal Singh.  In paragraph 25 of the written statement it was asserted that a non-Munda  merely  by virtue of the marriage  with  a  Munda could  not ipso facto become a Munda.  If a person  was  not born  of a father belonging to a Scheduled Tribe he  or  she could  not legally claim to be a member of the  said  Tribe.

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It  was asserted that since the election petitioner was  not the  daughter of a member of the Munda Tribe she  could  not claim  to  be  a  member  of  that  Scheduled  Tribe.    The allegations of mala fides made against the Returning Officer were described as baseless and extraneous. During  the pendency of the election petition the Lok  Sabha was dissolved on December 27, 1970.  A petition was filed 365 before  the  High  Court on behalf of  Shri  Horo  that  the election  petition  should  be dismissed  as  having  become infructuous.   The court made an order on January  14,  1971 holding that the election petition could not be dismissed on that ground. On  the pleadings of the parties seven issues  were  framed. Issues 1, 2 and 3 which are material need be mentioned. (1)  Is the election petition maintainable ? (2)  Whether the petitioner was the legally married wife  of late  Shri  Jaipal Singh according to the  custom  of  Munda Tribe prevalent in Chhota Nagpur ? (3) Whether the petitioner could legally acquire the  status of  a  Munda by virtue of her marriage to late  Shri  Jaipal Singh  and whether she had been accepted as a member of  the Munda Tribe by the said Tribe ? It may be mentioned that so far as issue No. 1 was concerned the  objection  taken  was that the  election  petition  was defective  on  account  of  the  non-joinder  of   necessary parties.   When  the election petition was filed  only  Shri Horo the returned candidate was impleaded but subsequently a petition  was  filed on behalf of  the  election  petitioner making  a prayer that the other contesting  candidates  were also  necessary parties and should be impleaded.  The  court directed that they be added as parties.  Shri Bodra who  was one of the contesting parties was consequently impleaded  as a party.  Later on it was prayed on behalf of the petitioner that  on  a  further consideration it  was  found  that  the persons  who had been subsequently added were not  necessary parties and their names might be deleted.  Bodra’s name  was therefore  deleted.   The argument raised  before  the  High Court was that Bodra being a necessary party to the petition under  cl.  (b)  of s. 82 of the  Act  the  petition  became defective as soon as his name was struck off at the instance of the election petitioner.  The High Court was of the  view that  although in paragraph 21 of the election  petition  an allegation  had  been  made that Bodra  had  influenced  the Returning Officer, no evidence was led on that point and the case  of  the election petitioner was based  solely  on  the ground  that  the nomination paper had  been  illegally  and improperly  rejected.   No  relief had been  sought  on  the ground  that  undue  influence had  been  exercised  on  the Returning Officer by Bodra.  The High Court was also of  the view that the allegation made in the election petition  that Bodra had exercised his influence in getting the  nomination paper  of  the  election petitioner rejected  did  not  fall within  the ambit and scope of sub-s. (7) of s. 123  of  the Act.  The contention that the petition was not  maintainable was consequently rejected. On  the  main issues, namely (2) and (3)  it  was  expressly stated  in the judgment that the factum of the  marriage  of the elec- 366 tion petitioner with the late Shri Jaipal Singh had not been disputed.   The real controversy between the parties in  the High Court centered round the point whether the marriage was in  such form that the wife acquired the membership  of  the Tribe.  According to the arguments on behalf of Shri Horo as

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the election petitioner was not a Munda she could not belong to the Munda Tribe and that by marriage such a status  could never  be  acquired.  The High Court examined  the  evidence relating  to  the  question  whether  the  marriage  of  the election  petitioner  with late Shri jaipal Singh  had  been performed  in  accordance with the Munda custom and  was  in such  form that she was accepted and treated as a member  of the  Munda  Tribe.  The court also  considered  the  various authoritative  books and other works relating to the  Mundas and  came to the conclusion that on a survey of the  entire, evidence  and  the  circumstances there  was  no  reason  to discredit  the evidence which had been led on behalf of  the petitioner  that  she  was married according  to  the  Munda custom and that it was with the approval and sanction of the Tribe  that she had been accepted as a member of  the  Munda tribe. The  first contention raised by Mr. Frank Anthony on  behalf of  the  appellant  relates  to issue No.  1.  It  has  been maintained  by him that Bodra was a necessary party.   Apart from  the fact that he was the only person who had  filed  a written  objection to the nomination of the  respondent  the election petition filed by the respondent contained  serious allegations  of corrupt practice against Bodra.  As  he  had been given up as a party although impleaded at one stage the petition   became  defective  and  was   not   maintainable. According  to clause (b) of s. 82 of the Act the  petitioner must  join  as  a  respondent  any  candidate  against  whom allegations  of  any  corrupt  practices  are  made  in  the petition.  Section 86(1) provides that the High Court  shall dismiss  any election petition which does not  comply  inter alia with the provisions of s. 81. There  can be little doubt that if the allegations  made  in the   election  petition  against  Bodra  amounted  to   the commission of a corrupt practice by him it was obligatory on the  part  of  the  election petitioner to  join  him  as  a respondent  to  the petition.  It is equally clear  that  in that  event  the  petition  would  have  become  liable   to dismissal.   For finding out what a corrupt practice  is  we have to turn to s. 123 of the Act.  According to Mr. Anthony the allegations made against Bodra fell within sub-s. (7) of s. 123 which is in the following terms : S.  123  "The  following  shall be  deemed  to  be  corrupt, practices for the purposes of this Act:-- 367 .lm15 (7) The obtaining or procuring or abetting or attempting  to obtain  or  procure by a candidate or his agent or,  by  any other person with the consent of a candidate or his election agent, any assistance other than the giving of vote for  the furtherance  of the prospects of that candidate’s  election, from  any  person  in  the service  of  the  Government  and belonging to any of the following classes, namely :- (a)  gazetted officers; (b)  stipendary judges and magistrates; (c)  members of the armed forces of the Union: (d)  members of the police forces; (e)  excise officers; (f)  revenue  officers other than village  revenue  officers known as lambardars, malguzars, patels, deshmykhs or by  any other  name, whose duty is to collect land revenue  and  who are remunerated by a        share of, or commission on,  the amount  of  land revenue collected by them but  who  do  not discharge any police functions; and (g)  such  other  class of persons in  the  service  of  the Government as may be prescribed.

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Explanation(1)  In  this  section  the  expression   "agent" includes  an election agent, a polling agent and any  person who is held to have acted as an agent in connection with the election with the consent of the candidate. (2) For the purposes of clause (7) a person shall be  deemed to  assist  in  the  furtherance  of  the  prospects  of   a candidates’s  election  if he acts as an election  agent  of that candidate". The  allegations against Bodra are contained in para  21  of the election petition which may be set out :               "That the Returning Officer, while hearing the               objections   illegally   allowed    irrelevant               personal  aspersions  to be cast  against  the               petitioner by her opponents and the  aforesaid               Shree Theodore Bodra even after protests  made               by  and on behalf of the petitioner,  Shrimati               Jahanara Jaipal Singh, against the same’. plain  reading  of the above paragraph shows  that  no  such alletion  was made that Bodra had influenced  the  Returning Officer I-L887 Sup CI/72 368 for  the  purpose mentioned in S. 123(7) of  the  Act.   The essential ingredient of that provision is to obtain, procure etc. by a candidate of any assistance (other than the giving of  a  vote) for the furtherance of the  prospects  of  that candidate’s  election  from  any person in  service  of  the Government  and  belonging to the classes mentioned  in  the sub-section.    There   is  absolutely  no   allegation   or suggestion  in  para  21  that  the  Returning  Officer  was influenced by Bodra for the purpose of rendering  assistance for the furtherance of the prospects of the election of  any candidate.   All that has been stated in that  paragraph  is that  while  hearing  the objection  the  Returning  Officer allowed  irrelevant personal aspersions to be  cast  against the election petitioner by her opponents and Bodra.  It  was further stated that on inquiry the election petitioner  came to  learn that the Returning Officer had been influenced  by Bodra.  This influence apparently can have reference only to the  conduct  or act of the Returning  Officer  in  allowing personal   aspersions  to  be  cast  against  the   election petitioner.   Even  by  stretching the language  it  is  not possible  to  discover any of the  ingredients  which  would constitute  a corrupt practice under s. 123(7) of  the  Act. Faced with this situation Mr. Anthony sought to rely on sub- s. (2) of S. 123 the relevant part of which is as follows :               "(2)  Undue  influence, that is  to  say,  any               direct or indirect interference or attempt  to               interfere on the part of the candidate or  his               agent, or of any other person with the consent               of  the candidate or his election  agent  with               the free exercise of any electoral right:              Provided that--"........" It  is  not  possible  to  comprehend  how  the   allegation contained  in  para  21 can be understood  to  amount  to  a suggestion of direct or indirect interference, or attempt to interfere  on the part of the candidate etc. with  the  free exercise  of  any  electoral  right.   We  are   accordingly satisfied  that  no allegation of any corrupt  practice  had been  made  in  the  election  petition  against  Bodra  and therefore  he was not a necessary party within S. 82 of  the Act.   In  this view of the matter it is  not  necessary  to examine  the  criticism of Mr. Anthony of that part  of  the judgment  of  the High Court according to which one  of  the reasons  given  for deciding issue No. 1 in  favour  of  the

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present respondent was that no relief had been sought on the ground  that  undue  influence had ’been  exercised  on  the Returning  Officer by Bodra and that no evidence was led  on that point. On  issues 2 and 3 Mr. Anthony has raised three main  points The  first  was that the respondent who was a  Christian  by birth, was a divorcee and according to her own statement the decree 369 nisi  in the divorcee proceedings had been made absolute  on May 6, 1954.  According to her she got married to late  Shri Jaipal Singh on May 7, 1954.  This marriage was a nullity as under  s.  57 of the Indian Divorce Act 1869 she  could  not enter  into a second marriage until after the expiry of  six months  from  the date the decree had  been  made  absolute. Secondly  the High Court had palpably erred in holding  that the  respondent  had become a member of the Munda  tribe  by marrying  Shri Jaipal Singh and set aside the order  of  the Returning  Officer who had held that she was a Christian  by birth  and Munda tribe being an ethnic group its  membership could not be acquired by marriage but could be acquired only by  birth.   Thirdly  it has been strongly  urged  that  the respondent failed to prove the custom that a non-Munda could be initiated into tribe as its full fledged member either by performance  of  certain rituals and ceremonies  or  by  the acceptance as such by the tribe or its panchayat. As regards the first point it was never canvassed or  argued before  the High Court.  No plea was taken by Shri  Horo  in the written statement that there could be no valid  marriage between  the respondent and late Shri Jaipal Singh owing  to the provisions contained in s. 57 of the Indian Divorce  Act 1869  until after the lapse of. a period of six months  from the  date the decree of divorce was made absolute.  None  of the  issues which was framed by the High Court  involve  the question  now sought to be agitated based on the  provisions of  s.  57  of  the Indian Divorce  Act.   It  appears  that advantage  is sought to be taken from the statement  of  the respondent about the various dates when the decree  absolute was  granted  and  the date when  the  marriage  took  place between  the respondent and the late Shri Jaipal Singh.   In the absence of any pleadings or issues no material has  been placed on the record to show that in view of the  provisions of  S.  57 of the aforesaid Act there could not be  a  valid marriage  according to the Munda customary law.  It must  be remembered  that the respondent contracted a  marriage  with late  Shri  Jaipal  Singh  according  to  Munda  rites   and ceremonies  and  not  as  one  Christian  marrying   another Christian.  Nor was the matter pursued in  cross-examination of the respondent and she was not asked as to how she  could get over the bar of S. 57 in theway of remarriage  before the  expiry of the prescribed period.In these  circumstances we do not consider that such a pointcan be allowed to be agitated for the first time before this Court. On the second and the third points, a great deal of reliance has been placed on the following statement in the well known book of S. C. Roy "Mundas and their country", 1912 Edn.               "The  Munda  tribe  is divided  into  a  large               number  of  exogamous  groups  called   kilis.               According to 370               Munda  tradition, all the members of the  same               Kili  are descended from one common  ancestor.               But such a tradition may not be quite  correct               with  regard  to the original  kilis.   Though               exogamous as regards the kilis, the Mundas are

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             endogamous   so  far  as  other   tribes   are               concerned.   Thus, there can now be  no  valid               marriage, according to Munda custom, between a               Munda  and the member of any other  ’kolarian’               tribe,  such as the Santals, the  Kharias  the               Asurs, or the Bir-hors". According  to Roy the family came to be evolved from  tribes and  sub-tribes.   Communal marriage was superseded  by  the individual  marriage and Matriarchal Age was  superseded  by Patriarchal.   Kinship  came  to be traced  not  as  before, through  a  common  female  ancestor  but  through  a   male ancestor.   D.  N.  Mazumdar in his work  on  the  Ho  tribe entitled "Affairs of a Tribe", 1950 Edn. points out that the rule  of  endogamy  has its base  in  superstitious  belief. According  to him villages which are closely allied by  ties of  marriage are those which share the same God and  Spirits and  the  same Deonwa.  The influence of Deonwas,  in  other words,  the knowledge of the Bongas of an  area,  determines the  limit  of exogamy, for there is a risk in  marrying  in villages  the  Bongas of which are unknown;  (pp.  237-238). From the account given by S. C. Roy himself it appears  that according  to the Munda custom the rule of endogamy  is  not absolute; for instance, in the case of Munda female  married or  unmarried  found  to have gone astray with a  man  of  a different  caste  or tribe, it is said, that the  latter  is summoned  before a Panchayat and a heavy fine is imposed  on the lover and the fine, if realised, is paid as compensation to  the parents of the seduced maiden or the husband of  the married female and the seducer is compelled to take the girl or  woman  as a wife or a mistress and in  case  of  refusal (which  is rare) to submit to the orders of  the  Panchayat. The  family of the seduced female remains outcaste  until  a purificatory  ceremony  is performed and  thus  restored  to caste.  The members of the family then cook rice. and  pulse and   themselves  distribute  the  food  to  the   assembled relatives; (see pp. 544-545.) The  question  that has to be enquired into is  whether  the strict rule of endogamy of the Munda tribe has been deviated from  and whether custom has sanctioned such deviation.   D. W. Mazumdar in his work "Races and Cultures of India"  deals with  tribal organisations in Chapter 17.  According to  him the  definition that is found in the current  literature  on the subject is given in the Imperial Gazetteer which is,  "A tribe  is  a collection of families bearing a  common  name, speaking a common dialect occupying or professing to  occupy a common territory and is 371 not usually endogamous though originally it might have  been so".   Endogamy is an essential feature of the tribe  though intertribal  marriages are breaking the limits of  endogamy. It  is  further stated by him that "the  importance  of  the blood bond or the kinship group is forced to the background, the communal economy of the clan is superseded by individual desire for gain and property, money assumes an importance it seldom had before, and the ties of reciprocity and mutuality of obligation are reoriented to suit new conditions.  Tribal custom  and  practices which established  social  life  lose their value and the choice of ’leader and of mate is  guided by  different  considerations".  The Munda tribe  cannot  be said to be immune from the above process of change in  their social  Organisation.   Changes in  their  belief,  customs, traditions  and  practices have taken place  under  the  in- fluence  of  Hinduism, Christianity, and on account  of  the impact of western education, urbanisation, industrialisation and   improved  means  of  communication.   The   sense   of

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individualism and lack of love for, the traditional code  of conduct  and social taboos ,ire stated to be apparent  among the emerging urban-industrial oriented adivasi communities. D.  N. Mazumdar has made an intensive study of the  rule  of endogamy  among  the Ho tribe which is an off-shoot  of  the Munda   tribe.   A  reference  to,  the  Ho  practice   may, therefore,  help us in understanding the practice among  the Mundas.   According to D. N. Mazumdar "A Ho does  not  marry outside  the tribe as a rule but there is today no legal  or social prohibition against his doing so.  Though tribal code has  relaxed considerably those who work in the  mining  and industrial  centers  in  and outside  Kolhan  contract  such alliances and when they come back to their villages they are not  outcasted  by  the society;" (pp.  124125,  "Races  and Cultures of India").  At another place he records :-               "The  endogamy  of  the tribe  is  not  sacred               today,  with  the result that  many  marriages               have  taken  place between the Hos  and  other               tribes.  Liaison between Diku men and Ho girls               is increasing, and cases that have occurred in               Chaibassa  during  the last ten  years  or  so               would  fill  a volume.  Thus, there  being  no               longer ,my deterrent to mating with strangers,               social authority vested in the Killi punch has               to  exercise  its  prerogative  to  ensure   a               compliance  with  social  traditions.    Killi               exogamy  has  not  led  to  an  indiscriminate               alliance  between the different killis and  as               far  as our knowledge goes, taboo on  marriage               outside a particular local area can be  traced               to  a  dread of unfamiliar  Bongas,  who  were               conceived    as   hostile,.   and    therefore               dangerous". (p. 236). 372 L.  P. Vidyarthi in his work mentioned before based  on  his study  of  the  social life of the Oraon  and  Munda  tribes living  in the city of Ranchi points out that a good  number of  cases of marriage between tribals and  non-tribals  have occurred  and  that in his investigation he came  across  53 cases of non-tribal males marrying tribal girls.  He  points out that greater percentage of love marriages and  marriages by ’Kept’ have been socially disapproved while 83.3% and 100 %  of  arranged  and  legal  (civil)  marriages  have   been approved. (See pages 102-103). We may how deal with the evidence produced by the parties on the  above points.  P.W. I who was working as District  Wel- fare  Officer in May 1970 at Ranchi and who belongs  to  the Munda tribe stated that if a Munda male married a  non-Munda girl and such marriage was accepted by the society it  would be a valid and proper marriage.  The wife would,  therefore, be  accepted  as  a member of the  tribe.   He  had  himself married  an Oraon girl and his wife though a  non-Munda  has been  accepted as a member of the Munda tribe.   He  further deposed  that  if the Munda married a non-Munda a  feast  is given  and if the elders of the society accept the  marriage and participate in the feast that by itself would show  that the  tribal society has accepted the marriage and  the  wife has become a member of the tribe.  P.W. 2 who is a nephew of the  late Shri Jaipal Singh gave details of  the  ceremonies which were performed when the marriage between his uncle and the  respondent took place.  After the performance of  those ceremonies the members of the tribe and the family  declared that  the  respondent had been accepted as a member  of  the tribe.  He himself is married to a non-Munda girl though  he was  married according to Munda marriage rights as  well  as

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according to Hindu law.  P.W. 3 who was at the material time working  as  Assistant Director in Sociology,  Bihar  Tribal Welfare Institute, stated that he had been doing research on the   subject   of   Bihar  Tribal   Marriage   and   Family Transformation with special reference to Family law.  One of his  major  duties  was to ascertain  from  the  members  of different  tribes  facts  relating to  the  subject  of  his research.  According to his evidence a Munda male can  marry a  non-Munda  girl.  After adopting a special  procedure  in some  cases a non-Munda wife is accepted as a member of  the tribe.   A  certain procedure or formality has  to  be  gone through.  The council of elders of the tribal people has  to be  consulted and the special reason for the marriage is  to be  stated.  Then various rituals are gone through  and  the marriage is allowed by the elders.  He gave instances where, a Munda male had married a non-Munda girl and their marriage had  been  accepted  by the tribal  people.   One  of  these instances  given by him related to persons belonging to  the Santhals  and  Ho tribes.  He maintained  that  the  customs prevalent among these tribes were broad- 373 ly  the same as among the Mundas.  In  cross-examination  he stated  that  he  had met the members  of  the  Munda  elder council and he had remained in touch with that council since 1952.  He had made special research of Jojo Hatu which was a Munda village.  He claimed to have submitted a report to the government in which he had collected hundreds of cases where a girl of a particular tribe had married outside her  tribe. P.W. 4 was the Superintendent of the Anthropological  Survey of  India, Ministry of Education.  As an  Anthropologist  he had  to  undertake full study in different  parts  of  India mostly  among  the tribal community.  He had  studied  Munda tribal  custom  which assignment had been given  to  him  in 1965-66.   In course of the research he found that  a  Munda could  marry  a non-Munda girl even before  1954.   He  gave three  kinds of unusual marriages one of which was  where  a Munda   male  married  a  non-Munda  female.    The   social consequences  of that marriage was called Jati  Bora.   That meant  that the Munda male had committed an offence  against the whole community.  Normally he would be ostracised  along with his family but there was a process by which he and  his wife could be admitted into the community.  This process was known  ’Niyar’  which means "to bring in or take  in".   The offending party invites the members of the Parha gives  them a feast at which a white goat is sacrificed and the blood is smeared  on  the  body of the boy and the  girl  along  with Tarmolik  and  then they are allowed to sit along  with  the members  of  the community in the same Pankti.   After  that they  are formally considered as members of  the  community. He  was  specifically asked a question with  regard  to  the manner in which a Munda boy marrying a non-Munda girl  would be  accepted by the community and his reply was that in  his opinion  the Parha was the ultimate authority in the  matter of  acceptance of a non-Munda girl in the community.   If  a Parha  accepted her that was final. in cross-examination  he stated that if a marriage of the nature under discussion  is not approved by Parha he did not think it would be  accepted by the members of the society.  It may be mentioned that the evidence  of this witness has been subjected to a good  deal criticism  by  Mr. Anthony for the reason that he  was  only expressing an opinion on the last matter and was not  making a def inite statement of fact.  P.W. 5, who was attached  to the office of the Deputy Commissioner, Palamau, gave an  ac- count of the ceremonies which were performed of the marriage between   the  respondent  and  late  Shri   Jaipal   Singh.

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According  to  him the elders of the  community  unanimously decided  that since permission had been given by the  elders they would be taken as members of the tribe.  He denied  the suggestion  that it was on account of the influence of  late Shri  Jaipal  Singh that Pahans had given  sanction  to  the marriage.  According to him there had been other cases  also where such sanction had been given. 374 P.W. 8 who claimed to be a Parha Raja of three Parhas, viz., Takara Parha, Sada Parha and Sagha Parha comprising 36  vil- lages  also  gave evidence about the ceremonies  which  were performed at the marriage of late Shri Jaipal Singh with the respondent.   After  the performance of the  ceremonies  the Samaj of the Munda tribe accepted the marriage, according to him.  He deposed to other instances where Munda had  married non-Mundals.  He had attended a marriage of a Munda who  had married a Ho girl.  Sanction was given by the elders to that marriage.   It  is unnecessary to refer to the  evidence  of P.W.  10  who is also a Pahan and who claimed to  have  been present at the time of the marriage in question.  He made  a statement which has been subjected to justifiable  criticism by  Mr.  Anthony about the document Exht-3.   His  evidence, therefore,  does  not  deserve consideration.   Out  of  the witnesses  examined on behalf of the respondent mention  may be  made of the statement of Shri Horo himself who  appeared as R.W. 6. After stating that the late Shri Jaipal Singh who was a leader of the Jharkhand Party and was an Adivasi and a Munda  professing the Christian religion, he  affirmed  that the respondent did not have the right and status of a  Munda on the basis of established custom.  He admitted that  there was  a custom that a Munda who had been excommunicated  from the  tribe  could be taken back but according  to  him  that person must be a Munda and no non-Munda could be accepted as a  member of the tribe.  The Munda could of course  marry  a non-Munda  but  in  the manner in which  the  Munda  usually married  a Munda.  The custom among the Mundas  is  changing and  it  is  dynamic and not static.   The  other  witnesses produced  by Shri Horo are not impressive and do not  afford much assistance in deciding the points under discussion. According  to- the observations of the High Court Shri  Horo did not examine any witness on his behalf who could say that he  had  made a special study and research of  the  marriage custom  of the Munda tribe and that such a marriage was  not acceptable in the present times in spite of all the  changes which  have taken place in the life and social structure  of the  community  owing to the impact of the  various  factors which  have been mentioned in the authoritative  studies  of eminent Anthropologists mentioned before. Our  attention  ha,, been drawn by Mr.  Anthony  to  certain decisions  for  the  proposition that in a  tribe  which  is endoganotus birth alone can confer the status of  membership of  the tribal community.  In V. V. Giri v. D. Suri  Dora  & Others(1)   one  of  the,  questions  raised,  was   whether respondent  No. 1 in that case had ceased to be a member  of the  Schedule  Tribe  at the material time  because  be  had become a Kshtriya.  This court observed that it (1)  21 E. T. R. 188. 375 was  essential  to  bear in mind the  broad  and  recognised features  of  the hierarchical  social  stricture  prevalent amongst the Hindus.  It was considered enough to state  that whatever might have been the origin of the Hindu castes  and tribes  in ancient times, gradually status came to be  based on  birth  alone.   It was pointed out  that  a  person  who belonged  by birth to a depressed caste or tribe would  find

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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.  We are unable  to see  how this case can be of any assistance in deciding  the matter  before  us,  namely,  whether a  non  Munda  can  by marriage  be  recognised as a member of the Munda  tribe  in certain circumstances. The High Court, after discussing the evidence and  referring to   other  authoritative books like "Tribes and  Castes  of Bengal" by H.  H.  Risley  and "Encyclopedia  Mundarica"  by Rev.   John  Hoffman as also the statement  in  Encyclopedia Britannica,  Vol. 15, and the Encylopaedia of  Religion  and Ethics  by James Hastin ings, Vol.  IX, apart from the  work of  J. Reid, I.C.S., on Chhota Nagpur Tenancy Act,  observed that  although  originally  very  severe  restrictions  were imposed  amongst the Mundas as far as marriage in their  own Kili   or   seat  was  concerned,  the  process   of   Munda assimilation to the larger Indian society facilitated by im- proved communications and the introduction of formal  system of  education  was being accelerated under  the  independent Government of India.  In Encyclopedia Britannica, Vol. 15 in the  Chapter relating to Mundas it is also mentioned.   "The Munda speaking people, with the other Indian tribal  groups, are  being  encouraged to adopt new customs  and  to  become fully participating members of Indian society". (page  991). Similarly  in  the Encyclopedia of Religion  and  Ethics  by James Hastings, Vol.  IX, it has been stated as to how Munda customs  are being changed with the impact of the  influence of  Christianity.  Referring to the Chapter in Reid’s  book it has been noticed by the High Court that according to  the Munda conception a wife becomes a member of the Kili of  her husband by legal fiction.  The High Court further relied  on the  decision in Wilson Reads v. C. S. Booth(1) in which  it was held that the question whether a person can be regarded as  a  member  of the Khasi tribe was  a  question  of  fact depending  upon the evidence produced in the case.  It  was said  that  the  whole  object of reserving  a  seat  for  a particular tribe was to afford the community, ;is a whole, a right  of representation and therefore the question  of  the membership  of  a particular individual  of  that  community could  not  be considered divorced from the very  object  of legislation.   Thus the conduct of the community  which  had been  given the right of special representation. the  manner and how the (1) A. T. R 558 Assam 128 376 community  regarded a particular individual and whether  the community as a whole intended to take the individual  within its  fold  were  all matters which  would  be  relevant  for consideration  of the question whether a  particular  person could  be regarded as a member of the-Scheduled Tribe.   The High  Court  was  alive  to  the  fact  and  this  point  of distinction has been greatly emphasised by Mr.  Anthony-that in that case the appellant claimed to be a Khasi, his father being a European and his mother a member of the Khasi tribe. Even  though the facts were different, the approach in  such matters  which commended itself to the Assam High Court  can hardly be regarded as unsound. It  appears  to us, on a full consideration  of  the  entire material.  that the following matters stand  established  in the present case :--               (1)  The  Mundas  are  endogamous  and  inter-               marriage    with   non-Mundas   is    normally               prohibited.               (2) That a Munda male along with his family on

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             marrying   a  non-Munda  girl  is  often   ex-               communicated or outcasted.               (3) That the rule of endogamy is not so  rigid               that  a Munda cannot marry a  non-Munda  after               performing special ceremonies.               (4)  That  such marriages have  been  and  are               being sanctioned by the Parha Panchayat.               (5)  That  where a Munda male and  his  family               are’  outcasted for marrying a non-Munda  they               are  admitted  to  the  tribe  after   certain               special ceremonies are performed. Even in the account given by S.C. Roy as well as by P.W. 4 a Munda  male is excommunicated for marrying a non-Munda  girl but  such excommunication is not automatic.  It is  left  to the discretion of the panchayat.  If the panchayat  approved of  a particular marriage with a non-Munda then no  question of excommunication arises.  Thus several inroads appears  to have  been made on the rigid system of endogamy which  might have  existed  at  one time but over  the  course  of  years several  matters are left to be decided by the panchayat  or elders of the tribe itself.  There is no evidence whatsoever that  the  late  Shri Jaipal  Singh  was  excommunicated  or outcasted  because  he  had married  a  non-Munda.   On  the contrary  there is abundant evidence that his  marriage  was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe. Reverting  to  the argument that a  non-Munda  women  cannot become a member of the Munda tribe by marriage even if the 377 marriage  be  valid because the Mundas are  a  patriarchical society  and  constitute an ethnic group,  we  have  already referred  to the evidence of the witnesses produced  by  the respondent who had made, special research in the matter  and even   if  we  exclude  the  opinion  of  P.W.  4  who   was Superintendent  of Anthropological Survey of India that  the Parha was the final authority in the matter of acceptance of an  non-Munda  girl  in the community but the  rest  of  his evidence cannot be brushed aside.  From all this evidence it is proved that once the marriage of a Munda male with a non- Munda  female  is  approved  or  sanctioned  by  the   Parha panchayat  they  become  members  of  the  community.   They contention  of  Mr. Anthony that a person can  be  Munda  by birth alone can be sustained only if the custom of  endogamy is established without any exception.  We have already  held that  the rule of endogamy has not been proved to  exist  in the  rigid  or strict form canvassed by Mr.  Anthony.   That rule  has not been strictly followed and the marriage  of  a Munda  male  with a non-Munda woman has been  and  is  being approved  and sanctioned by the Parha panchayat.  If a  non- Munda  woman’s  marriage with a Munda male is  valid  it  is difficult  to say that she will not become a member  of  the Munda  tribe.  The, concept of a tribe is bound  to  undergo changes,  when  numerous social, economic,  educational  and other  like factors in a progressive country  start  having their impact.  It is noteworthy that a Hinduised Munda and a Munda   converted  to  Christianity  can   inter-marry   and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas.  Mr. Horo himself  in all  fairness affirmed that custom among the Mundas was  not static  but  was dynamic and was changing.  We do  not  find cogent  or weighty reasons for disagreeing with the view  of the High Court on the points under discussion. We may also refer to Article 330 of the Constitution accord- ing to which the seats reserved for the Scheduled Tribes are to  be reserved in the House of the People, inter alia,  for

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members  of  these  Tribes.  Under S. 33 (2) of  the  Act  a candidate  for  a reserved seat has to  file  a  declaration specifying  a  particular caste or tribe of which  he  is  a member.   Article 342(1) empowers the President  to  specify ’the  tribes  or tribal communities or parts  of  or  groups within  tribes  or tribal communities which shall,  for  the purposes  of  the Constitution, be deemed  to  be  Scheduled Tribes  in relation to the State or Union territory  as  the case  may  be.   In Parts 1 to 12 of  the  Schedule  to  the Constitution (Scheduled Tribes) Order 1952 are specified the tribes  or tribal communities or parts of or  groups  within the tribes or tribal communities who are to be deemed to  be Scheduled tribes.  Munda is one of such specified tribes  or tribal  communities.   It  can well be said  that  the  term "tribal   community"  has  a  wider  connotation  than   the expression  "tribe".  A person who, according to the  strict custom of a tribe’. 378 cannot  be  regarded as a member of that tribe may  well  be regarded as a member of that tribal community.  Where a non- Munda  woman is married to a Munda male and the marriage  is approved and sanctioned by the Parha Panchayat of that tribe and  the  marriage is valid she may not, on  the  assumption that  the rule of endogamy prevails, become a member of  the Munda  tribe in the strict sense as not having been born  in the  tribe.   She  cannot, however, be_  excluded  from  the larger group, namely, the tribal community.  The High  Court has  taken  the  view  that the use  oil  the  term  "tribal communities" in addition to the term "tribes" in Article 342 shows  that  a wide import and meaning should  be  given  to these  words and even if the respondent is not a  member  of the  Munda tribe by virtue of birth she having been  married to a Munda after due observance of all formalities and after obtaining  the  approval of the elders of the  tribes  would belong to the tribal community to which her husband  belongs on  the anology of the wife taking the  husband’s  domicile. Even   without  invoking  the  doctrine  of   domicile   the respondent’s marriage with late Shri Jaipal Singh who was  a Munda  having  been  approved and sanctioned  by  the  Parha Panchayat of the Munda tribe it can be said that she  became a  me mber of the Munda tribal community.  We have not  been shown  any infirmity in the reasoning of the High  Court  on this point.  When a person, in the course of time, has  been assimilated  in  the community it is somewhat  difficult  to comprehend  how  that person can be denied  the  rights  and privileges  which  may be conferred on that  community  even though tribal by constitutional provisions. In  the result this appeal fails and it is dismissed but  in view  of  the  nature of the points involved  we  leave  the parties to bear their own costs in this Court. V.P.S.                              Appeal dismissed. 379