REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    654     OF 2012 (Arising out of S.L.P (CIVIL) NO.4282 of 2010)

Rameshbhai Dabhai Naika        … Appellant

versus

State of Gujarat & Others           … Respondents

J U D G M E N T  

Aftab Alam,J.

1.      Leave granted.

2. The question that once again arises before this Court is  

what would be the status of a person, one of  whose parents  

belongs to the scheduled castes/scheduled tribes and the other  

comes from the upper castes, or more precisely does not come  

from scheduled castes/scheduled tribes and what would be the

entitlement  of  a person from such parents to the benefits of  

affirmative action sanctioned by the Constitution. The Gujarat  

High Court has proceeded on the basis that the issue is settled  

by  the  decisions  of  this  Court  in  Valsamma Paul  v. Cochin  

University and others, (1996) 3 SCC 545 followed by Punit Rai  

v.  Dinesh Chaudhary, (2003) 8 SCC 204 and  Anjan Kumar v.  

Union of India and others, (2006) 3 SCC 257.  On the strength  

of  those  three  decisions  the  High  Court  upheld  the  order  

passed  by  the  Scrutiny  Committee  cancelling  the  tribal  

certificate earlier obtained by the appellant on the sole ground  

that his father was a non-tribal, belonging to the Hindu caste  

Kshatriya. The High Court  did not  advert  to the fact  that  the  

mother of  the appellant was undeniably a Nayak, one of  the  

scheduled  tribes  and  the  appellant  himself  and  his  other  

siblings were also married to Nayaks. The High Court also did  

not  refer  to  the  evidences adduced by the  appellant  on  the  

question  of  his  upbringing  as  a  member  of  the  Nayak  

community and his acceptance in that community (or for that  

matter  the  contra  evidence  produced  by  the  respondent

questioning his claim to be a member of the scheduled tribe). In  

view of the fact that his father was a non-tribal, the High Court  

deemed  everything  else  as  of  no  relevance  and  declined  to  

record  any  finding  on  whether  the  appellant  was,  in  fact,  

brought  up  as  a  tribal  and,  consequently,  shared  all  the  

indignities and handicaps and deprivations normally suffered by  

the tribal communities.

3. The appellant, thus, lost his tribal certificate and the Fair  

Price shop that was allotted to him on that basis. He has now  

brought the matter to this Court making the grievance that the  

High Court order does not impact him alone but as a result of  

the  order  of  the  High  Court  his  children  too,  though  

undisputedly born to  a tribal  mother,  are bound to  lose their  

tribal identity.

4. The  High  Court  seems to  have  read  the  decisions  in  

Valsamma Paul, Punit Rai and Anjan Kumar as laying down the  

rule that  in all cases and regardless of other considerations the  

offspring of  an inter-caste marriage or a marriage between a  

tribal and a non-tribal would take his/her caste from the father.

In the three decisions there are indeed observations (though by  

no  means forming  the  ratio  of  the  decisions)  that  may lend  

credence to such a view but the question is whether it can be  

said  to  flow  from  those  decisions,  as  an  inflexible  rule  of  

general application, that in every case of inter-caste marriage or  

marriage between a tribal and a non-tribal, the offspring must  

take  his/her  caste  from the  father.  The clear  answer,  to  our  

mind,  is  in  the  negative.  A careful  examination  of  the  three  

cases together with some other decisions of this Court would  

clearly  show  that  what  was  said  in  Valsamma  in  a  certain  

context  has  been  rather  mechanically  and  inappropriately  

extended and applied to different  other fact  situations as the  

law laid down in Valsamma.  

5. Valsamma was a Syrian Catholic woman (forward caste)  

who married a Latin  Catholic  man (backward  class) and the  

question  arose  whether  by  virtue  of  her  marriage  she  was  

entitled to appointment to a post of lecturer that was reserved  

for Latin Catholics (Backward Class Fishermen). The full bench  

of  the  Kerala  High  Court  held  that  though  Valsamma was

married according to the Canon law, being a Syrian Christian by  

birth, she could not by marriage with a Latin Catholic become a  

member  of  that  class  nor  could  she  claim  the  status  of  

backward class by marriage.  Dealing with the consequences of  

a woman marrying outside her caste the Court relied upon two  

old Privy Council decisions of the nineteenth century and came  

to  hold  that  when  a  woman  marries  outside  her  caste,  she  

becomes a member of  the caste of  the husband’s family.  In  

paragraph 31 of the judgment in Valsamma the Court said:

“It  is  well-settled law from  Bhoobum Moyee Debia  v. Ram  Kishore Acharj Chowdhry (1865) 10 MIA 279: 3 WR 15 that  judiciary recognized a century and a half  ago that a husband  and wife are one under Hindu law, and so long as  the wife  survives, she is half of the husband.  She is ‘Sapinda’ of her  husband  as  held  in  Lulloobhoy  Bappoobhoy  Cassidass  Moolchund  v. Cassibai  (1879-80)  7IA  212 .   It  would,  therefore, be clear that be it either under the Canon law or the  Hindu law, on marriage the wife becomes an integral part of  husband’s marital home entitled to equal status of husband as  a member of the family.  Therefore, the lady, on marriage,  becomes  a  member  of  the  family  and  thereby  she  becomes a member of the caste to which she moved.  The  caste  rigidity  breaks  down  and  would  stand  no  impediment to her becoming a member of the family to  which  the  husband  belongs and  she  gets  herself  transplanted.”  

(emphasis added)

6. Having said that  in  an inter-caste marriage the  woman  

takes on  the  caste  of  her  husband,  the  Court  proceeded  to  

consider the next question which was, “whether a lady marrying  

a  Scheduled Caste,  Scheduled Tribe or  OBC citizen,  or  one  

transplanted by adoption or any other voluntary act, ipso facto,  

becomes entitled  to  claim  reservation  under  Article  15(4)  or  

16(4)  as  the  case  may  be?”  This  question  the  Court  firmly  

answered in the negative and in paragraph 34 of the judgment  

observed and held as follows:-

“In  Murlidhar  Dayandeo  Kesekar v.  Vishwanath  Pandu  Barde  1995 supp. (2) SCC 549  and  R. Chandevarappa v.  State of Karnataka (1995) 6 SCC 309: JT (1995) 7 SC 93,  this  Court  had  held  that  economic  empowerment  is  a  fundamental right to the poor and the State is enjoined under  Articles 15(3), 46 and 39 to provide them opportunities. Thus,  education, employment and economic empowerment are some  of the programmes the State has evolved and also provided  reservation  in  admission  into  educational  institutions,  or  in  case of other economic benefits under Articles 15(4) and 46,  or in appointment to an office or a post under the State under  Article 16(4).  Therefore, when a member is transplanted  into  the  Dalits,  Tribes  and  OBCs,  he/she  must  of  necessity also have had undergone the same handicaps,  and must have been subjected to the same disabilities,  disadvantages, indignities or sufferings so as to entitle  the  candidate   to  avail  the  facility  of  reservation.   A  candidate who had the 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 of 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. “  

     (emphasis added)

7. Proceeding further, in paragraph 35 of the judgment, the  

Court expressly held that acceptance by the community, a test  

that was earlier applied by the Court in cases of conversion and  

reconversion, would have no application to judge  Valsamma’s  

claim to the post reserved for Latin Catholics by virtue of her  

marriage in that caste.

8. The  court,  thus,  gave  two  reasons  for  disallowing  

Valsamma, the benefit of reservation under Articles 15 & 16 of  

the Constitution; first, being born in a forward caste she had an  

advantageous start  in life and she had not gone through the  

same  disabilities,  disadvantages,  indignities  or  sufferings  as  

other members of  the backward class and secondly claiming  

the  benefits  of  reservation  by  getting  transplanted  into  a  

backward class by means of marriage, that is to say, through  

voluntary mobility would amount to a fraud on the Constitution.

9. On a careful  reading of  the judgment  it  becomes clear  

that the ratio of the Valsamma decision lies in paragraph 34 of  

the  judgment  as  quoted  above.  What  was  said  earlier  in  

paragraph 31 of the judgment was in the facts of that case and  

it would be an error to take it as the ratio of the decision. More  

importantly, it would be very wrong to take paragraph 31 of the  

Valsamma judgment as a premise for drawing the corollary or  

the deduction that the child born from an inter-caste marriage  

or a marriage between a tribal and a non-tribal would invariably  

take his caste from the father. But before examining Valsamma  

in any greater detail it would be useful to see how it was used,  

applied and “improved upon” in later decisions of the Court.  

10. Valsamma was a case of reservation under Articles 15 &  

16 of  the  Constitution.  A case of  reservation  of  seats in  the  

Legislative Assembly under Article 332 of the Constitution came  

to be considered by a three judge bench of the Court in Sobha  

Hymavathi Devi v. Setti Gangadhara Swamy & Others (2005) 2  

SCC  244.  The  case  of  Sobha  Hymavathi  Devi,  in  certain  

aspects on facts, is very similar to  Valsamma. The election of

Sobha to  the  Andhra  Pradesh  Legislative  Assembly  from  a  

constituency reserved for Scheduled Tribes was challenged on  

the ground that she belonged to a forward community, Patnaik  

Sistu Karnam, and was, therefore, not qualified to contest the  

election from the constituency reserved for Scheduled Tribes.  

Denying the allegations of the election petitioner Sobha raised  

three  pleas;  first,  both  her  parents  belonged  to  Scheduled  

Tribes; secondly, in case her father was held to come from a  

forward caste she was actually brought up by her mother, who  

undeniably belonged to a scheduled tribe, as a member of the  

tribal  community  and  thirdly  she  married  a  Scheduled  Tribe  

person  and,  therefore,  became a  member  of  the  Scheduled  

Tribe. She had, therefore, the status of a Scheduled Tribe and  

was  qualified  to  contest  the  election  from  the  constituency  

reserved  for  the  Scheduled  Tribes.  The  Court  examined  

Sobha’s  first  and  second  pleas  fully  in  light  of  the  factual  

evidence and came to reject the two pleas on the basis of the  

findings of fact. Dealing with the second plea, in paragraph 8 of  

the judgment, the Court held and observed as follows:-

“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  recognised  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 Ext.  10 and the entry therein marked as Ext. X-11 relating to  the appellant, show her caste as Sistu Karnam and not as  Bhagatha. This entry was at an undisputed point of time.  Moreover, the evidence also shows that she was always  being  educated  at  Vishakhapatnam  and  she  was never  living  as  a  tribal  in  Bhimavaram  village  to  which  her  mother’s  family  belongs.  There  is  no  reason for  us  to  differ  from  the  conclusion  of  the  High  Court  on  this  aspect.”

      (emphasis added)

11. It was only then that the Court considered the third plea of  

Sobha that having married a person belonging to a Scheduled  

Tribe  she  had  acquired  membership  of  that  community  and  

consequently  she  must  be  treated  as  a  member  of  the  

Scheduled Tribe. Dealing with this plea the Court referred to the  

decision in Valsamma and applied it to the case of reservation  

of a seat in the Legislative Assembly under Article 332 of the

Constitution. In Paragraph 10 of  the judgment the Court held  

and observed as follows:-

“Even otherwise, we have difficulty in accepting the position  that a non-tribal who marries a tribal could claim to contest a  seat reserved for tribals. Article 332 of the Constitution 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  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. …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.”  

   (emphasis added)

12. What is of  importance in  Sobha Hymavathi  Devi is that  

the Court did not take the fact that Sobha’s father was a man of  

forward caste as conclusive of her caste status. The Court did  

not  shut  out  the  plea  raised  by  Sobha that  she  must  be  

considered as belonging to  the  scheduled tribe  because her  

mother who was herself a tribal  brought her up as a member of  

her community and raised her as a tribal even though her father  

might  have come from a forward caste.  On the contrary the  

Court examined the plea raised by Sobha in light of evidences  

adduced by the parties and negated it on the basis of a pure  

finding  of  fact.  Though  the  Court  referred  to  and  approved  

Valsamma for rejecting Sobha’s plea that she had acquired the  

status of a tribal by virtue of her marriage to a tribal man, it did  

not take Valsamma as an authority that in a marriage between  

a  tribal  and  a  non-tribal,  the  caste  of  the  father  would  be  

determinative of the caste of the child.  

13. The third plea raised by Sobha in support of her being a  

tribal  and the  claim of  Valsamma  were  both  based on  their  

voluntary action  in  marrying  a  tribal  man.  In  both  cases the

Court held that getting transplanted into the tribal  community  

through voluntary mobility cannot be the basis for the Forward  

caste/non-tribal  woman to avail  of  the benefits of  reservation  

under Article 15 & 16 (in Valsamma) or under Article 332 of the  

Constitution (in Sobha Hymavathi Devi).  But in neither of  the  

two  cases  the  question  of  a  child  born  of  an  inter-caste  

marriage or a marriage between a tribal and a non-tribal was  

directly in issue.  

14.   This question came up directly for consideration in  Punit   

Rai  v.  Dinesh Chaudhary (2003) 8 SCC 204.  The election of  

Dinesh Chaudhary (the  respondent  in  the appeal  before this  

Court) to  Bihar  Legislative  Assembly  from  a  constituency  

reserved for scheduled castes was challenged on the ground  

that he was born to Kurmi parents and he did not belong to any  

scheduled castes. The respondent did not deny that his father  

Bhagwan Singh was a Kurmi and he was married to a Kurmi  

woman.  He, however, set up the case that Bhagwan Singh had  

taken  a  second  wife  Deo  Kumari  Devi  who  was  a  Pasi  

(scheduled caste) and he was born to Deo Kumari Devi from

Bhagwan Singh and he was, thus, fully eligible to contest from  

the reserved constituency.  He also relied upon a circular issued  

by the State of Bihar according to which a child born to a non-

scheduled caste father and a scheduled caste mother would be  

counted  in  the  category  of  scheduled  caste.  A three-judge  

bench of the Court before which the case came up for hearing  

handed down two separate, though concurring, judgments, one  

by Brijesh Kumar, J., speaking for himself and for V.N. Khare,  

CJ, and the other by Sinha, J.  It is significant to note that the  

judgment by Brijesh Kumar,J. is based on the finding that the  

respondent failed to establish that Bhagwan Singh had taken a  

Pasi woman as the second wife and he was born to her from  

Bhagwan Singh.  The Court held that the fact  that Bhagwan  

Singh was a  Kurmi  and he was married  to  a  Kurmi  woman  

being admitted, the election petitioner had discharged the onus  

and the burden now lay upon the respondent to establish that  

Bhagwan Singh had married second time and his second wife  

was  a  Pasi  who  had  given  birth  to  the  respondent  and  the  

respondent  had  completely  failed  to  establish  that.   In  

paragraphs 14 and 15 of the judgment by the two judges it was

observed and held as follows:  

“14. The case of the parties is clear from their pleadings and  the  evidence  adduced  by  them  as  indicated  above.  The  petitioner  challenged  the  status  of  respondent  Dinesh  Chaudhary as a Scheduled Caste person belonging to the SC  community.  Precisely what was indicated in support of that  case  is  that  the  father  of  Dinesh  Chaudhary  and  Naresh  Chaudhary is Bhagwan Singh who is Kurmi by caste married  to Jago Devi,  also a Kurmi lady.  The High  Court  has also  observed that a person born in a Kurmi family normally would  be presumed that he is Kurmi by caste.  In this background  the  initial  burden  of  the  petitioner  would  stand  discharged  and it  would shift  upon the respondent  to  prove his case which, in normal course of things, would  be and is within his special knowledge. A case which has  been set up by the respondent through his witnesses as well,  that  his  father  had  taken  a  fancy  to  Deo  Kumari  Devi,  a  resident of Village Adai, who is Pasi by caste and married her,  who gave birth to two children including the respondent, would  normally be not in the knowledge of  the people in  general,  particularly  when  according  to  the  case  of  the  respondent  himself Jago Devi lived in another village and she was never  brought  from  there  by  Bhagwan  Singh.  More  so,  when  Bhagwan Singh, a Kurmi by caste, is living with his wife Jago  Devi,  also  a  Kurmi,  in  their  village Jehanabad.   The  best  evidence, as also according to the High Court to prove the  case of the respondent, was to produce Bhagwan Singh and  Deo Kumari Devi but they have been withheld after being cited  as witnesses for the respondent.  These facts clearly make out  a case for drawing an adverse inference that in case they had  been produced they would not have supported the case of the  respondent.  Kundan  Lal  Rallaram  v.  Custodian,  Evacuee  Property  AIR 1961 SC 1316,  T.S. Murugesam Pillai  v. M.D.  Gnana Sambandha Pandara Sannadhi AIR 1917 PC 6 and  Thiru John v. Returning Officer (1977) 3 SCC 540, may also  be referred on the point.

15.  ……Apart  from  the  above,  the  appellant  had  also  discharged his burden by proving the fact that the father of  Respondent 1 is Bhagwan Singh, a Kurmi by caste married to  Jago Devi, also a Kurmi by caste.  The natural inference in

such circumstances would be that the respondent would, in  normal course of  events,  be a Kurmi by caste.   If  there is  anything contrary to the normal course of events, as pleaded  in this case, of another marriage of Bhagwan Singh in some  other village, namely, Adai  with Deo Kumari Devi who never  came to live with Bhagwan Singh in his village nor Bhagwan  Singh ever lived there.  Such facts in the special knowledge of  the  respondent  have  to  be  proved  by  him  alone.   The  respondent  was  under  duty  to  prove  his  case  both  ways,  namely, in view of the special knowledge of facts pleaded and  again in view of the fact that the appellant had discharged his  initial burden of showing that the respondent was Kurmi by  caste being the son of Bhagwan Singh, a Kurmi married to  Jago Devi, also a Kurmi.  The other decision which has been  referred  to  on  behalf  of  the  respondent  is  reported  in  Dolgobinda  Paricha  v.  Nimai  Charan  Misra  AIR 1959  SC  914.  It in connection with the fact that the evidence of the  brother of Deo Kumari Devi that Bhagwan Singh had married  her,  was  relevant  for  the  purposes  of  relationship  of  one  person to another since the brother of Deo Kumari Devi, is a  person who is a member of the family or otherwise has special  means  of  knowledge  of  the  particular  relationship.   The  decision is in reference to Section 50 of the Evidence Act.  It  may be observed that the evidence of persons who belong to  Village Adai including the brother of Deo Kumari Devi have  been examined by the respondent to establish the allegation of  marriage  between  Bhagwan  Singh  and  Deo  Kumari  Devi.  Undoubtedly, the evidence of the brother of Deo Kumari Devi  would be relevant for the relationship between Bhagwan Singh  and Deo Kumari Devi but his evidence would not be of any  help, in view of the adverse inference drawn under Section  114(g)  of  the  Evidence Act  due to  withholding  of  the  best  evidence available on the point.  When the persons concerned  are  not  coming  forward  to  the  Court  to  depose  about  the  alleged relationship and an adverse inference has been drawn  that if they had come to the Court to depose, their evidence  would  have  gone  against  the  respondent,  in  such  circumstances, there is no occasion to act upon the statement  of DW 5, the brother of Deo Kumari Devi or other witnesses.”

(emphasis added)

15.    Once again it is to be seen that the judgment by the two  

judges went into the facts of the case in detail and considered  

the  effect  of  the  evidences  led  (or  rather  not  led!)  by  the  

respondent in support of his case. And again it was on a finding  

of fact that the Court held that the respondent failed to establish  

his scheduled caste status. The judgment by two judges, like  

the decision in Sobha Hymavathi Devi, did not proceed on the  

basis that the respondent would get his caste from his father  

and his father being admittedly Kurmi the respondent could not  

have  a  caste  status  other  than  Kurmi.  The  Court  did  not  

disallow the respondent from taking the plea that he was the  

child  of  a  Pasi  mother  and,  thus,  belonged  to  a  scheduled  

caste. But in that endeavour the respondent failed on a finding  

of fact.  

16. It is equally important to note that the judgment by the two  

judges does not  rule  out  the  possibility of  the  child  from an  

inter-caste  marriage  taking  his/her  caste  status  from  the  

mother, if such a provision was made in a circular issued by the

Government  and,  in  paragraph 7 of  the judgment,  made the  

following observations:-

“A person born in  a Kurmi family,  which  details  have been  provided, would normally be taken to be a Kurmi by caste.  But  it is only in special circumstances, as may have been provided  under a circular of the Government of Bihar, that the caste of  the mother would be taken as the caste of the children, if she  happens  to  be  a  Scheduled  Caste,  married  to  a  non- Scheduled Caste.”   

17. Sinha,J.,  the  third  member  on  the  Bench  wrote  a  

separate, though concurring judgment.  He applied the test of  

acceptance  by  the  community  for  rejecting  the  respondent’s  

claim  that  he  qualified  as  a  ‘Pasi’  (scheduled  caste).  In  

paragraphs 33 and 34 of  the judgment Sinha,J.  observed as  

follows-

“33. In the instant case there is nothing on record to show  that the respondent has ever been treated to be a member of  the Scheduled Caste.  In fact evidence suggests that he has  not been so treated.  He as well as his brothers and other  members of his family are married to persons belonging to his  own caste i.e. “Kurmi”.  

34.There was no attempt on the part of the respondent herein  to bring on record any material to the effect that he was treated  as  a  member  of  the  “Pasi”  community.   Furthermore,  no  evidence has been brought on record to show that the family  of the respondent had adopted and had been practicing the  customary traits and tenets of the “Pasi” community.”

Sinha,  J.,  however,  proceeded  to  make  certain  other  

observations and in paragraph 27 of the judgment he said as  

follows:-

“27. The caste system in  India is  ingrained in  the Indian  mind.  A person,  in the  absence  of  any  statutory  law,  would  inherit  his  caste  from  his  father  and  not  his  mother even in a case of inter-caste marriage.”

(emphasis added)

And in paragraphs 41 and 42 of the judgment as under:-

“41. 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.”

Here there is no reference to Valsamma but the connection is  

obvious.  It  is  only the  next  logical  step  to  what  was said  in  

paragraph  31  of  Valsamma.  If  as  a  result  of  inter-caste  

marriage the woman gets transplanted into  the family of  the  

husband and takes her husband’s caste it would logically follow

that the child  born from the marriage can take his/her caste  

only  from  the  father.  We  shall  presently  consider  the  highly  

illogical consequences of this logical derivation but before that  

it needs to be noticed that Sinha, J. rejected the government  

circular also that provided that the caste of the mother might be  

taken as the caste of  the child.  In  the same paragraph (41)  

Sinha,J. observed:     

“ Reliance, however, has been placed upon a circular dated 3- 3-1978 said to have been issued by the State of Bihar which  is in the following terms:

“Subject:  Determination of the caste of a child born from a  non-Scheduled Caste Hindu father and a Scheduled Caste  mother.

Sir,

In  the aforesaid subject  as per  instruction  I  have to  state  for  the  determination  of  a  child  born  from  a  non- Scheduled Caste father and a Scheduled Caste mother, upon  deliberation it has been decided that the child born from such  parents will be counted in the category of Scheduled Caste.

2. In  such  cases  before  the  issue  of  caste  certificate  there  will  be  a  legible  enquiry  by  the  Block  Development Officer, Circle Officer/Block Welfare Officer.”  

42. The  said  circular  letter  has  not  been  issued  by the  State  in  exercise  of  its  power  under  Article  162  of  the  Constitution of India.  It is not stated therein that the decision  has been taken by the Cabinet or any authority authorized in  this  behalf  in  terms of  Article 166(3)  of  the Constitution of  India.  It is trite that a circular letter being an administrative  instruction is not a law within the meaning of Article 13 of the

Constitution of India.  (See  Dwarka Nath Tewari  v.  State of  Bihar AIR 1959 SC 249).”

(emphasis added)

18. He, thus, rejected the circular issued by the State of Bihar  

as invalid and of no consequence.  However, the judgment by  

the two judges, as seen above expressly acknowledged that in  

special circumstances, as may be provided in the Government  

Circular, the caste of the mother may be taken as the caste of  

the  children.  Therefore,  the  view  taken  by  Sinha  J.  on  the  

circular  is  clearly  at  variance  with  the  judgment  of  the  two  

Judges on that issue. On the question of the child inheriting the  

caste of the mother the judgment by the two judges is silent as  

the  question  did  not  arise  for  consideration  in  view  of  the  

finding of  fact  that  the respondent’s father,  a  kurmi,  had not  

married the pasi woman. It is, therefore, difficult to clothe the  

observation  by  Sinha  J.  on  this  point  with  precedent  value,  

especially in view of the fact that the question did not arise at all  

after the decision of the majority of two judges. Seervai in his  

Constitutional  Law of  India,  Fourth Edition,  pages 2669-2673

esp.  Para  25.102  explains  that  a  ‘decision’  refers  to  the  

determination  of  each question  of  law which arose and was  

decided in that case. In  Punit Rai’s case, the question did not  

arise at all, and moreover, there was no majority concurrence  

on the question that a child inherits his caste from the father.  

Thus, the concurring judgment of Sinha J. must be interpreted  

by reference to  Paragraphs 33,  34 and 47 of  the  judgment,  

where  the  learned  Judge  concurs  with  the  majority  on  the  

question  of  fact.  The  other  observations  in  the  concurring  

judgment cannot be said to constitute binding precedent.

19.  The question of the status of a child born to a scheduled  

tribe mother from a forward caste father again came up before  

the Court in Anjan Kumar v. Union of India and others, (2006) 3  

SCC  257.  Anjan  Kumar,  was  the  son  of  a  scheduled  tribe  

mother  and  a  Kayastha  (forward  caste)  father.  The question  

was  whether  he  could  be  considered  to  belong  to  the  

scheduled tribe.  On the facts of the case, the Court found that  

though the mother of the child indeed belonged to a scheduled  

tribe, the child was brought up in the environment of forward

caste community and he did not suffer any social disabilities or  

backwardness.  In paragraph 6 and 7 of the judgment the Court  

observed as follows:-

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

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

20. The  Court  in  paragraph  6  of  the  judgment,  as  quoted  

above,  applied  the  test  of  acceptance  in  the  community  in  

which  the  woman  gets  married.  But  more  importantly  in  

paragraph 7 of the judgment went into the specifics of the case  

on the question of upbringing of the appellant Anjan Kumar and  

recorded  a  finding  of  fact  that  he  was  “brought  up  in  the  

environment of forward community (and) did not suffer from any  

disability from the society to which he belonged”. Having arrived  

at the aforesaid finding of fact the Court proceeded to refer to  

several  decisions,  including  Valsamma  and  the  judgment  of  

Sinha,  J.  in  Punit  Rai (in  particular  paragraph  27  of  the

judgment) and in paragraph 14 came to observe and hold as  

follows:-

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

     (emphasis added)

21. Here the Court said that, “the offshoot of the wedlock of a  

tribal woman married to a non-tribal husband – Forward Class  

(Kayestha in the present case) cannot claim Scheduled Tribe  

status”. But it was not on the reasoning of Valsamma that in an  

inter-caste marriage or in a marriage between a tribal  and a

non-tribal the woman gets transplanted into the community of  

the husband and gets her caste from the husband (paragraph  

31 of the judgment) or the reasoning in Sinha J’s judgment that  

in the absence of any statutory law a person would inherit his  

caste from his father and not his mother even in a case of inter-

caste  marriage”.  Here  the  reasoning  is  that,  “..such  offshoot  

was brought up in the atmosphere of Forward Class and he is  

not subjected to any disability. That is exactly the reasoning of  

Valsamma in paragraph 34 of the judgment and that as noted  

above is the true ratio of the decision in Valsamma.

22.  It  is,  thus,  clear  that  it  is  wrong and incorrect  to  read  

Valsamma, Punit Rai and Anjan Kumar as laying down the rule  

that in an inter-caste marriage or a marriage between a tribal  

and  a  non-tribal,  the  child  must  always  be  deemed  to  take  

his/her caste from the father regardless of the attending facts  

and circumstances of each case. Now, we propose to consider  

why the observation in  Valsamma to the effect  that  an inter-

caste marriage or a marriage between a tribal and a non-tribal  

the woman becomes a member of the family of her husband

and takes her husband’s caste (Paragraph 31 of the judgment)  

is  not  the  ratio  of  that  decision  and  more  importantly  what  

inequitable  and  anomalous  results  would  follow  if  that  

proposition is taken to its next step to hold that the offspring of  

such a  marriage would  in  all  cases take the  caste  from the  

father.  

23.      For the proposition that on marriage the woman takes  

the caste of her husband  Valsamma relied on two nineteenth  

century Privy Council decisions, one in Bhoobum Moyee Debia  

v. Ram Kishore Acharj Chowdhry, (1865) 10 MIA 279 and the  

other  in  Lulloobhoy  Bappoobhoy  Cassidass  Moolchund  v.   

Cassibai,  (1879-80)  7IA 212.  In  Bhoobum Moyee  Debia the  

respondent  Chandrabullee  Debia  after  the  death  of  her  son,  

who left  behind an issueless widow (the appellant,  Bhoobum  

Moyee Debia), in order to devest the widowed daughter-in-law,  

made an adoption on the strength of a deed of permission of  

adoption  that  was  executed  in  her  favour  by  her  deceased  

husband (Gaur Kishore Acharj  Chaudhary). The adopted son  

filed a suit  claiming the entire estate of  Gaur Kishore Acharj

Chaudhary,  trying  to  defeat  the  claim  of  the  appellant  and  

devest  her  of  the  estate.  He  succeeded  before  the  Sudder  

Dewanny Adawlut of Calcutta. But in appeal the Privy Council  

held  that  under  the  Hindu  Law  an  adopted  son  takes  by  

inheritance and not by device and as by that law in the case of  

inheritance, the person to succeed must be the heir of the full  

owner.  In  the  facts  of  the  case,  the  deceased  son  of  Gaur  

Kishore Acharj Chaudhary and Chandrabullee Debia who was  

the husband of the appellant was the last full owner and at his  

death  his  wife,  the  appellant,  succeeded  as  his  heir  to  her  

widow’s estate. Consequently, the adoption by Chandrabullee  

Debia was void as the power was incapable of execution.   After  

reaching this conclusion the Privy Council further noted that an  

additional  difficulty in  holding  the  estate  of  the  widow to  be  

devested “may perhaps be found in the doctrine of Hindoo Law,  

that the husband and wife are one and that as long as the wife  

survives,  one  half  of  the  husband  survives;  but  it  is  not  

necessary to press this objection”.

24. The second decision of  the Privy Council  in Lulloobhoy  

Bappoobhoy  Cassidass  Moolchund,  raised  the  question  

whether the widow of a paternal first cousin of the deceased  

became  –  by  her  marriage  –  a  Gotraja–sapinda  of  the  

deceased, and whether she was, therefore, entitled to succeed  

to the estate in preference to male gotraja-sapindas who were  

more  distant  heirs.   The  Privy  Council,  based  on  an  

interpretation of the Mitakshara law as it prevailed in Bombay at  

that time, affirmed the widow’s right of inheritance.  The Privy  

Council observed, “It is not disputed that on her marriage the  

wife enters the gotra of  her husband, and it  can scarcely be  

doubted  that  in  some sense  she  becomes a  sapinda  of  his  

family.  It is not necessary to cite authorities on this point…...  

Whether the right to inherit  follows as a consequence of  this  

sapinda relationship is the question to  be considered?”  The  

Privy Council  cited a passage from the Achara Kanda of  the  

Mitakshara  which  suggested  that  sapinda  relationship  

depended on having the particles of the body of some ancestor  

in common.  However, “the wife and the husband are sapinda  

relations to each other, because they together beget one body

(the son)”.  It was further observed; “If then, as already pointed  

out, the wife upon her marriage enters the gotra of her husband  

and,  thus,  becomes  constructively  in  consanguinity  or  

relationship with  him,  and through him,  with  his family,  there  

would appear to be nothing incongruous in her being allowed to  

inherit  as  a  member  of  that  family  under  a  scheme  of  

inheritance  which  did  not  adopt  the  principle  of  the  general  

incapacity of women to inherit.  But, though it may be consisted  

with this theory of sapinda relationship to admit the widow so to  

inherit, the existence of the right has still to be established.”   

25. In the first of the two Privy Council decisions, the issue of  

sapinda  relationship  did  not  really  arise  and  the  case  was  

decided  on  an  altogether  different  basis.   In  the  second  

decision, it is only observed that the wife enters the gotra of the  

husband. There may be many gotras within a certain caste, and  

it  is  unclear  if  this  doctrine  of  Hindu  Customary law can  be  

applied in the post-Constitution era to determine the caste of a  

child  from an  inter-caste  marriage  or  a  marriage  between a  

tribal and non-tribal.  

26.    Without any disrespect, it seems a matter of grim irony  

that two nineteenth century decisions of the Privy Council that  

were  rendered  in  their  time  to  advance  and  safeguard  the  

interests of Hindu widows should be relied upon and used for  

complete effacement of the caste and the past life of a woman  

as a  result  of  her  marrying into  a  different  caste.  The Privy  

Council decisions were rendered about a century and a quarter  

ago in cases of inheritance, in a completely different social and  

historical milieu, when cases of inter-caste marriage would be  

coming to the court quite rarely. We are not quite sure of the  

propriety  or  desirability  of  using  those  decisions  in  a  totally  

different  context  in  the  post-Constitutional,  independent  India  

where there is such great consciousness and so much effort is  

being  made  for  the  empowerment  of  women  and  when  

instances of  inter-caste marriage are ever on the increase. It  

also  needs  to  be  considered  how far  it  would  be  proper  to  

invoke the customary Hindu law to alter the caste status of a  

woman  in  an  inter-caste  marriage  or  a  marriage  between  a  

tribal and non-tribal and to assign to the woman the caste of

her husband when such a marriage may itself be in complete  

breach of the Hindu customary law.

27.     We may also recall  that  Valsamma Paul was a case  

where a Syrian Catholic woman (forward caste) had married a  

Latin  Catholic  man  (backward  class).  The  parties  were  

Christians  but  the  Court  applied  the  Hindu  Customary  law  

observing, “It would, therefore, be clear that be it either under  

the Canon law or the Hindu law, on marriage the wife becomes  

an  integral  part  of  husband’s  marital  home entitled  to  equal  

status of husband as a member of the family.  The Court, thus,  

put the Canon law at par with the Hindu Customary law. Now,  

surely  the  same  reasoning  cannot  apply  if  a  Muslim  of  a  

forward caste marries a Muslim tribal e.g. a Lakshdweep Gaddi  

or a Bakriwal from Jammu and Kashmir.  One wonders whether  

in those cases too the woman can be said to take the caste of  

her husband applying the reasoning of Valsamma.

28.     Further, whether and to what extent the Hindu Customary  

law would govern members of scheduled tribes (as opposed to  

scheduled  castes)  would  depend on the  extent  to  which the

given  tribe  was  hinduised  prior  to  the  adoption  of  the  

Constitution of India.   

29.     The  view  expressed  in  Valsamma  that  in  inter-caste  

marriage or in a marriage between a tribal and a non-tribal the  

woman gets transplanted into the family of  her husband and  

takes her husband’s caste is clearly not in accord with the view  

expressed by the Constitution Bench of the Court in V.V. Giri v.   

Dippala Suri Dora and others, (1960) 1 SCR 426 that it is well  

nigh  impossible  to  break  or  even  to  relax  the  inflexible  and  

exclusive character of the caste system. In V.V. Giri the election  

of the returned candidate was challenged on the ground that he  

had ceased to be a member of the Scheduled Tribe and had  

become  a  Kashtriya.  In  support  of  the  allegation  evidences  

were led that from 1928 onwards he had described himself and  

the members of his family as belonging to the Kashtriya caste.  

Oral evidence was led to show that he had for some years past  

adopted  the  customs and  rituals  of  the  Kashtriya caste  and  

marriages  in  his  family  were  celebrated  as  they  would  be  

among  the  Kashtriya  and  homa  was  performed  on  such

occasions. It was also shown that his family was connected by  

marriage  ties  with  some  Kashtriya  families,  that  a  Brahmin  

priest officiated at the religious ceremonies performed by him  

and he wore the sacred thread.

30.  Rejecting  the  contention  of  the  election  petitioner  

Gajendragadkar  J.  (as  his  Lordship  then  was)  speaking  for  

himself  and  three  other  Honourable  Judges  on  the  Bench  

observed in Paragraph 25 of the judgment as follows:

“In dealing with this contention it would be essential to bear in  mind the broad and recognized features of the hierarchical social  structure prevailing amongst the Hindus. It is not necessary for  our present purpose to trace the origin and growth of the caste  system amongst the Hindus. It  would be enough to state that  whatever may have been the origin of Hindu castes and tribes in  ancient times, gradually castes came to be based on birth  alone. It is well known that a person who belongs by birth to  a depressed caste or tribe would find it very difficult, if not  impossible, to attain the status of a higher caste amongst  the Hindus by virtue of his volition, education, culture and  status. The history of social reform for the last century and  more has shown how difficult it is to break or even to relax  the rigour of the inflexible and exclusive character of the  caste system  1  . It is to be hoped that this position will change,  and in course of time the cherished ideal of casteless society truly  based  on  social  equality  will  be  attained  under  the  powerful  impact of the doctrine of social justice and equality proclaimed by  the Constitution and sought to be implemented by the relevant  statutes and as a result of the spread of secular education and  the growth of  a rational outlook and of proper sense of  social  

1 In Valsamma (para 31) a bench of two judges, using similar words said just the opposite: “The caste  rigidity breaks down and would stand no impediment to her becoming a member of the family to which the  husband belongs”.

values; but at present it would be unrealistic and utopian to ignore  the difficulties which a member of the depressed tribe or caste  has  to  face  in  claiming  a  higher  status  amongst  his  co- religionists.”

31.   The observation made by Gajendragadkar J. half a century  

ago was tellingly shown to be true in Rajendra Shrivastava   vs.   

State of Maharashtra, (2010) 112 BomLR 762, a case that came  

before the Full Bench of the Bombay High Court.  In Rajendra  

Shrivastava a  Scheduled  Caste  woman,  who  had  married  a  

man from an upper caste, accused her husband and his family  

members of  subjecting her to cruelty and abusing her in  the  

name of  her caste. A case was accordingly instituted against  

the accused, including the husband, under Sections 498A, 406,  

494, 34 of the Indian Penal Code read with the provisions of  

Section  3(1)(ii)  and  Section  3(1)(x)  of  the  Scheduled  Castes  

and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. In  

the anticipatory bail application filed on behalf of the husband it  

was  contended  that  on  getting  married  with  him  the  

complainant had assumed his caste and lost her identity as a  

Scheduled  Caste  person.  She  could,  therefore,  make  no

complaint  under  the  provisions  of  the  SC/ST (Prevention  of  

Atrocities)  Act.  It  goes  without  saying that  in  support  of  the  

contention raised on behalf of the husband strong reliance was  

placed upon the observations made in Valsamma in Paragraph  

31 of the judgment.

32.      The full  bench before which the matter  came up for  

consideration on reference framed the following issue as arising  

for consideration:

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

33.     The full  bench of  the  Bombay High Court  examined  

Valsamma in light of two Constitutional Bench decisions of this  

Court, namely, Indra Sawhney v. Union of India, 1992 supp (3)  

SCC 217 and V.V. Giri v. D. Suri Dora, (supra).  The full bench  

also  considered  the  law  of  precedent  and  referred  to  the  

decision  of  this  Court  in  State  of  A.P. v.  M.  Radha  Krishna  

Murthy,  (2009)  5  SCC 117.  It  finally  came  to  hold  that  the  

observations  made  in  Paragraph  31  of  the  decision  in

Valsamma cannot  be  read  as  the  ratio  laying  down  that  on  

marriage, a wife is automatically transplanted into the caste of  

her  husband.  In  Paragraph  12  of  the  judgment  it  held  as  

follows:-

“When a woman born in a scheduled caste or a scheduled tribe  marries to a person belonging to a forward caste, her caste by  birth does not change by virtue of the marriage. A person born as  a member of a scheduled caste or a scheduled tribe has to suffer  from disadvantages, disabilities and indignities only by virtue of  belonging  to  the  particular  caste  which  he  or  she  acquires  involuntarily on birth. The suffering of such a person by virtue of  caste is not wiped out by a marriage with the person belonging to  a  forward  caste.  The  label  attached  to  a  person  born  into  a  scheduled caste or a scheduled tribe continues notwithstanding  the  marriage.  No  material  has  been  placed before  us  by  the  applicant so as to point out that the caste of a person can be  changed either by custom, usage, religious sanction or provision  of law.”

34.   We fully endorse the view taken by the Bombay High Court  

and we  feel  that  in  the  facts  of  the  case that  was  the  only  

correct view.

35.  In light of the discussion made above it is clear that the  

view expressed in  Paragraph 31  of  the  Valsamma judgment  

that in an inter-caste marriage or a marriage between a tribal  

and a non-tribal  the woman must in all  cases take her caste  

from  the  husband,  as  a  rule  of  Constitutional  Law  is  a  

proposition, the correctness of which is not free from doubt. And

in  any case it  is not the ratio of  the  Valsamma decision and  

does not make a binding precedent.           

36.     It is also clear to us that taking it to the next logical step  

and to hold that the off-spring of such a marriage would in all  

cases get his/her caste from the father is bound to give rise to  

serious problems. Take for instance the case of a tribal woman  

getting married to a forward caste man and who is widowed or  

is abandoned by the husband shortly after marriage. She goes  

back  to  her  people  and the  community carrying with  her  an  

infant or may be a child still in the womb. The child is born in  

the community from where her mother came and to which she  

went back and is brought up as the member of that community  

suffering  all  the  deprivations,  humiliations,  disabilities  and  

handicaps as a member of the community. Can it still be said  

that the child would have the caste of his father and, therefore,  

not entitled to any benefits, privileges or protections sanctioned  

by the Constitution.

37.     Let us now examine how the issue has been dealt with by  

some of the High Courts.

38.     A full bench decision of the Kerala High Court in Indira v.   

State of Kerala, AIR 2006 Ker. 1, is a case in point.

39.    The Government of Kerala had issued G.O. (Ms) No. 298  

dated  23/6/1961  stating  that  children  born  of  inter-caste  

marriages  would  be  allowed  all  educational  concessions  if  

either of  the parents belonged to scheduled caste/scheduled  

tribe.  Later,  on  a  query  made  by  the  Kerala  Public  Service  

Commission, the Government clarified  vide a G.O. (Ms) dated  

25/1/1977 that the Government Order dated 23/6/1961 could be  

adopted for determining the caste of the children born of such  

inter-caste marriage for all purposes. Resultantly, such children  

were  treated  as  belonging  to  scheduled  caste  or  scheduled  

tribe  if  either  of  their  parents  belonged  to  SC/ST.  After  the  

decision of  this Court  in  Punit  Rai (supra) and in light  of  the  

separate though concurring judgment of Sinha J. the State of  

Kerala cancelled the earlier G.O. (Ms) dated 23/6/1961 and its  

clarification dated 25/1/1977 and replaced it by another order  

G.O. (Ms) No. 11/2005/SCSTDD dated 20/6/2005 directing that  

the  competent  authorities  would  issue  Scheduled

Caste/Scheduled  Tribe  community  certificates  to  the  children  

born from inter-caste marriage only as per the caste/community  

of  his/her  father  subject  to  the  conditions  of  acceptance,  

customary traits and tenets as stipulated in the judgments of the  

Supreme Court.  The validity of  the  Government  Order  dated  

20/6/2005 came up for consideration before the full  bench of  

the Kerala High Court. The High Court considered the decisions  

of this Court in a number of cases including Valsamma, Sobha  

Hymavathi  Devi and  Punit  Rai  and  in  Paragraph  21  of  the  

judgment came to hold as follows:

“The Government, vide order G.O. (Ms) No. 25/2005/SCSTDD  dated 20/6/2005 directed the competent authority to issue SC/ST  community  certificates  to  the  children  born  out  of  intercaste  married couples as per the caste/community of the father subject  to  the  conditions  of  acceptance,  customary  traits  and  tenets  stipulated in Punit Rai’s case and Sobha Hymavathi Devi’s case.  The above government order would also be applicable to  the children born out  of  intercaste  married  couple  if  the  mother belongs to SC/ST community. Subject to the above  direction, rest of the directions contained in G.O. (Ms) No. 11/05/  and G.O. (Ms) No. 25/2005 would stand.”

40.    We are in agreement with the view taken by the Kerala  

High Court.

41.   A division  bench  of  the  Delhi  High  Court  in  Kendriya  

Vidyalaya Sangathan v. Shanti Acharya Sisingi, 176(2011) DLT  

341,  after  considering  a  number  of  decisions  of  this  Court  

summed up the legal position as to the offspring of  an inter-

caste marriage or a marriage between a tribal and a non-tribal  

in  clauses 3  and 4  under  Paragraph 30 of  the  judgment  as  

follows:

“III The offshoot of wedlock between Scheduled Caste/Scheduled  Tribe  male and a female belonging to forward community can  claim Scheduled Caste/Scheduled Tribe status for Indian society  is patriarchal society where the child acquires the caste of his  father.

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

42.   In Arabinda Kumar Saha v. State of Assam, 2001 (3) GLT  

45  a  division  bench  of  the  Gauhati  High  Court  had  a  case  

before it in which a person whose father belonged to the upper  

caste  and  mother  to  a  scheduled  caste  claimed  scheduled  

caste status. The court found and held that though the father of  

the writ petitioner was admittedly a forward caste man he was

brought  up  as  a  member  of  the  scheduled  caste.  This  was  

evident from the fact that the writ petitioner had not only been  

the office holder of Anushchit Jati Karamchari Parishad but the  

scheduled caste community treated the appellant as belonging  

to scheduled caste and even the non-scheduled caste people  

treated him as scheduled caste, in as much as in his college  

career and in his service career he was treated as a person  

belonging to a scheduled caste.  

43.   In view of  the analysis of  the earlier decisions and the  

discussion  made  above,  the  legal  position  that  seems  to  

emerge is that in an inter-caste marriage or a marriage between  

a tribal and a non-tribal the determination of the caste of the  

offspring is essentially a question of fact to be decided on the  

basis of the facts adduced in each case.  The determination of  

caste of a person born of an inter-caste marriage or a marriage  

between  a  tribal  and  a  non-tribal  cannot  be  determined  in  

complete disregard of attending facts of the case.  In an inter-

caste marriage or a marriage between a tribal and a non-tribal  

there may be a presumption that the child has the caste of the

father. This presumption may be stronger in the case where in  

the inter-caste marriage or a marriage between a tribal and a  

non-tribal the husband belongs to a forward caste.  But by no  

means the presumption is conclusive or  irrebuttable and it  is  

open to the child of  such marriage to lead evidence to show  

that he/she was brought up by the mother who belonged to the  

scheduled caste/scheduled tribe. By virtue of being the son of a  

forward caste father he did not have any advantageous start in  

life  but  on  the  contrary suffered  the  deprivations,  indignities,  

humilities  and  handicaps  like  any  other  member  of  the  

community to which his/her mother belonged.  Additionally, that  

he was always treated a member of the community to which her  

mother  belonged  not  only  by  that  community  but  by  people  

outside the community as well.   

44.     In the case in hand the tribal certificate has been taken  

away from the appellant without adverting to any evidences and  

on the sole ground that he was the son of a Kshatriya father.  

The  orders  passed  by  the  High  Court  and  the  Scrutiny  

Committee, therefore, cannot be sustained. The orders passed

by the High Court and the Scrutiny Committee are, accordingly,  

set aside and the case is remitted to the Scrutiny Committee to  

take a fresh decision on the basis of the evidences that might  

be led by the two sides. It  is made absolutely clear that this  

Court is not expressing any opinion on the merits of the case of  

the appellant or the private contesting respondent.

45.     Before parting with the records of the case, we would  

like to put on record our appreciation for the assistance that we  

got  from  Mr.  Sanjay  R.  Hegde  counsel  appearing  for  the  

appellant  and  Mr.  Sanjeev  Kumar  counsel  appearing  for  

respondent No. 6. The assistance we received from the amicus  

curiae, Mr. Aman Ahluwalia was especially invaluable.

46.     In the result, the appeal is allowed but in the facts of the  

case there will be no order as to costs.            

.................................................. ...J (Aftab Alam)

 ….................................................J  (Ranjana Prakash Desai)

New Delhi; January 18, 2012