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CASE NO.: Appeal (civil)  4413-4414 of 2003

PETITIONER: SOBHA HYMAVATHI DEVI                             

RESPONDENT: SETTI GANGADHARA SWAMY & ORS.            

DATE OF JUDGMENT: 28/01/2005

BENCH: C.J.I,G.P. MATHUR & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

P.K. BALASUBRAMANYAN, J.

1.              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 defeated candidates and one of them by a voter in the  constituency.  The election petition [E.P.No. 25 of 1999] 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 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 116A 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 100 of  the Act and that falls for decision before us, is whether the appellant  belongs to a Scheduled Tribe and hence qualified to contest the election  from a constituency 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 of Bhagatha Community, 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 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.   

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

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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 that  she was the daughter of Simhachalam through Murahari Rao.  But she  pleaded that she and five of her siblings, were the illegitimate children  of Murahari Rao, a Patnaik Sistu Karnam 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 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  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 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.  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 if there 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 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 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.  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.   

4.              Before the trial court, PWs, 1 to 11 were examined on  behalf of the Election Petitioners, in addition to marking Exhibits A.1  to A.6.  On behalf of the appellant, RWs. 1 to 10 were examined and  Exhibits B.1 to B.35 were marked.  Exhibits X.1 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, 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 brother of Kalavathi, the father of Kalavathi and

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three others were examined in addition to she herself getting examined.   Simhachalam  and Murahari Rao, 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 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, 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 these  witnesses which clearly go to prove that Murahari 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 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 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 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 appellant, stands strengthened by the presumption  available in law arising out of the long cohabitation of Murahari Rao  and Simhachalam.  The Privy Council in Mohabbat Ali Khan vs.  Muhammad Ibrahim Khan and others, 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 vs. Parvin Kumari  AIR 1952 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 on the evidence here, including  the documentary evidence relied on by the High Court, the presumption  arising from long cohabitation of Murahari 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. Balasubramanyam vs.  Suruttayan Alias Andalipadayachi and others., (1994) 1 SCC 460,  and in Ranganath Parmeshwar Panditrao Mali and another vs.  Eknath Gajanan Kulkarni and another, (1996) 7 SCC 681.  We may

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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 when Simhachalam was allegedly eight years  old, the same also can be presumed to have been terminated especially  in the context of the subsequent long cohabitation of Murahari 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 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 vs. 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 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 Rao and Simhachalam. Learned counsel could not  successfully challenge the finding of the High Court that the appellant  could not prove that her mother 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,  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 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 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 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  Bhagatha 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 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 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 Scheduled Tribe.  Learned counsel placed reliance on the

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decision of this Court in N.E. Horo vs. 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 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.) vs. Cochin  University and others, (1996) 3 SCC 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 recognized as a  member of the 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 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 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.   

10.     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 that community.  It is in that  context that the decision in Horo (supra) was relied on.  It is also  contended that the decision in Horo (supra) related to an 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 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 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 (Mrs.) vs. Cochin University and others (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 community, was held to enable a non- backward to claim reservation in terms of Articles 15(4) or 16(4) of the

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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  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 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) 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 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 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 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 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 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.   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

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certificate was issued merely on the say so of the appellant.   We have,  therefore, no hesitation in overruling this argument raised on behalf of  the appellant.  

12.     Before we part with this case, we wish to express our dismay  at the 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 concerned Legislative Assembly of Andhra Pradesh  invalid.  We, therefore, confirm that decision of the High Court and  dismiss these appeals with costs.