Andhra HC (Pre-Telangana)
Dr. M. Thippe Swamy vs L. Lalitha Kumari And Anr. on 28 September, 2006
Equivalent citations: 2006(6)ALD720, 2007(1)ALT288, AIR 2007 (NOC) 207 (ANDH. PRA.)
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. In the general election held in the month of April 2004, the petitioner and the first respondent (hereinafter referred to as "the respondent") filed their nominations for 141 Palamaner (SC) Assembly Constituency of Andhra Pradesh. While the petitioner contested on behalf of the Indian National Congress, the respondent represented the Telugu Desam Party. After following the notified schedule in the matter of filing, scrutiny and withdrawal of nominations, polling was held to the constituency on 26.4.2004. The petitioner secured 67, 124 votes, whereas the respondent got 67,861 votes. An independent candidate secured 3,029 votes. The respondent was declared as elected.
2. The petitioner filed this Election Petition challenging the election of the respondent. He seeks declaration to the effect that the election of the respondent as Member of the Legislative Assembly representing 141 Palamaner (SC) Assembly Constituency is void. The petitioner states that the respondent is a born Christian, professing Christianity and thereby, she was not eligible and qualified, to contest as a candidate, against a vacancy, reserved for Scheduled Caste. In the Election Petition as well as the supporting affidavit filed by the petitioner, it is stated that the respondent belongs to 'Adi Andhra Christian' community and her parents are Christians. It is alleged that in the records of the educational institutions, where the respondent studied, she was described as 'Christian'. Petitioner had also pleaded that the respondent, her sister and brothers were married to Christian spouses, as per Christian rites and that she continues to profess, Christianity. It was further alleged that the respondent attends Church at Nalagamapalli Village and makes regular contributions, for the up keep of the Church. The petitioner had enclosed certain annexures to the Election Petition. They include the extracts from the registers of educational institutions, where the respondent had studied.
3. In the 5th Paragraph of the Election Petition as well as in the affidavit, it was alleged that that the respondent might have manipulated the authorities, and played fraud, in obtaining the certificate to the effect that she belongs to Scheduled Caste. It was also alleged that the certificate might have been issued by the authorities, as she was a candidate sponsored by the ruling party, at the relevant point of time. The respondent filed EA. No. 1092 of 2004 with a prayer, to reject the Election Petition and E.A No. 1093 of 2004, to strike off the pleadings in certain paragraphs. The petitioner filed counter-affidavit in the said applications. Through an order, dated 1.12.2004, this Court partly allowed E.A. No. 1093 of 2004 and struck off certain sentences in Paragraph 5, the gist of which is indicated above. Thereafter, the respondent filed her written statement on 20.12.2004. EA No. 1092 of 2004 was rejected.
4. In her written statement, the respondent flatly denied the allegations made against her by the petitioner. She stated that her parents are Mala by caste, professing Hindu faith, and neither her parents nor herself have embraced Christianity, at any point of time. She pleaded that her father Sri M. Subramaniyam was employed in Forest Department and that he continued to be Hindu, till his death. She denied the allegation that herself, her sister and brothers were married to Christian spouses. According to her, the entries in the school records do not indicate that she is a Christian and the minor discrepancies that existed therein, are on account of the fact that the school Head Masters or Principals may have made them, on guesswork. She denied the allegation that she is the member of any Church or that she makes any contribution to them.
5. The respondent pleaded that she contested, and was elected as Member, and thereafter, as the President, against a reserved constituency in the Mandal Parishad Elections for Bangarupalyam Mandal and served the said Office, for five years between 1995 and 2000. According to her, the petitioner was also an ex officio member of the Mandal Parishad in his capacity as Member of Legislative Assembly. She further stated that her husband was elected as Sarpanch of Nalagampally Gram Panchayat, which was reserved in favour of Scheduled Caste candidates and served the said Office between the years 1988 and 1995. She contends that at no point of time, the petitioner had raised any objection as to the social status of herself or her husband. The respondent pointed out that the Caste Certificate and declaration filed by her, at the time of filing of nominations, were not challenged by anyone, including the petitioner. She pleaded that she is Hindu by birth and continues to be so, practicing Hindu faith.
6. On the basis of the pleadings of the parties, this Court framed the following issues:
1. Whether the respondent belongs to the Scheduled Caste as on the date of submission of her nomination for the election in question? And
2. Whether the caste certificate dated 9.1.2004 issued to the respondent by the Competent Authority under the provisions of the A.P. (SCs. STs. and BCs.) Regulation of Issue of Community Certificates Act, 1993 and the Rules made thereunder is conclusive; and whether it is open for the election petitioner to canvass the correctness of the caste certificate, in the election petition?
7. On behalf of the petitioner, PWs. 1 to 18 were examined as witnesses. Documents filed by him were marked as Exs.Al to A15. In addition to these documents, some more were marked on behalf of the petitioner, in B-series also, depending on the source, from which they were obtained. The respondent deposed as RW1. On her behalf, RWs.2 to 17 were also examined. Documents, marked as Exs.Bl to B46 were taken on record.
8. Sri S. Subrahmanyam Reddy, the learned Counsel for the petitioner submits that the respondent does not belong to any caste, enumerated in Article 341 of the Constitution of India, insofar as it applies to the State of Andhra Pradesh and thereby, her election is liable to be set aside. He contends that the parents of the respondent were converted into Christianity long back and in fact, her mother, who deposed as PW16, is working as a Preacher in the Church at Nalagampally Village. He contends that the respondent was married to one Mr. Thomas, at Nalagampally Church and they lived in a house, constructed at a place known as 'Lucas Puram', named after her father-in-law. The learned Counsel urges that the sister and brothers of the respondent were married to Christian spouses and that throughout her education, the respondent was recognized as a Christian. It is pleaded that the oral and documentary evidence on record proves that the respondent continued to be a Christian, as on the date of filing of nomination. After making reference to the oral and documentary evidence on record, and by placing reliance upon several decided cases, the learned Counsel submits that the election of the respondent is liable to be set aside.
9. Sri. M. Chandra Sekhar Rao, the learned Counsel appearing for the respondent, on the other hand, submits that while the plea in the Election Petition was that the respondent is a born Christian, the evidence adduced by the petitioner is in a different direction. He submits that no record was placed before this Court, to point out that the respondent had ever been baptized or that she had practiced Christianity. He submits that the petitioner had acquiesced in the status of the respondent as a candidate belonging to the Scheduled Caste, both, when she functioned as a Member and President of Bangarupalyam Mandal Parishad, and at the time of filing of nominations, in the present election. According to the learned Counsel, the petitioner did not raise any objection to the nomination of the respondent, obviously because he knew very well that the respondent belongs to Scheduled Caste and that the Election Petition is filed with a mala fide intention, because he was not elected. He submits that as per Section 36 of the Representation of the Peoples Act, 1951, the eligibility and qualification of the candidate is to be verified, with reference to the date of filing of nominations and there is nothing on record, to disclose that the respondent did not belong to Scheduled Caste as on that date.
10. Placing reliance upon certain decided cases, the learned Counsel for the respondent submits that even where an individual had adopted a different faith, if he is accepted and received to the fold of his original faith by the community, the disqualification, which otherwise ought to have resulted on account of conversion, would cease to operate. In the context of the respondent, he submits that there was no conversion on her part at any point of time and even otherwise, the people of the community in the area, including the petitioner, have accepted the respondent as a person belonging to Hindu religion, by electing her to MPTC and thereafter as MLA against the vacancies reserved for SC candidates.
11. The learned Counsel raised serious objection for the admissibility as well as proof of several documents filed on behalf of the petitioner. He submits that several documents, which were not required to be maintained under any Statue, were filed, but none connected therewith were examined and in that view of the matter, they cannot be said to have been proved. The learned Counsel submits that the witnesses examined on behalf of the respondent have spoken in one voice, that she never practiced Christianity and the concerned documentary evidence had also supported the same. He further contends that the very fact that the petitioner did not seek any relief that he must be declared elected, after setting aside the election of the respondent herein, indicates the speculative nature of the election petition and prays for dismissal of the same.
12. The dispute in this Election Petition turns around the question as to whether the respondent was professing Christian faith, as on the date of filing of nomination. In the Election Petition as well as the affidavit filed in support thereof, it was pleaded at more than one place that the respondent is a bom Christian and that she belongs to Adi Andhra Christian Community. It is stated that the father of the respondent by name M.S.Mani and her mother M.S. Esteramma-PW6 are Christians and that the respondent had also married a Christian, in accordance with the practices of that religion. Support is derived from the entries made in the records, maintained by various Schools and Churches.
13. The respondent, on the other hand, flatly denied the allegation and she pleaded that she never practiced Christianity and that she was born and continues to be a Hindu. She attempts to support her contention by referring to the factum of her having been elected as Member and President of Mandal Parishad, of which the petitioner was also an ex officio member and the fact that her husband was elected as a Sarpanch against a vacancy reserved for Scheduled Caste. Therefore, it has to be seen whether the petitioner had proved the facts pleaded by him.
14. The petitioner deposed as PW1. He filed an affidavit in lieu of chief-examination, reiterating the contents of the Election Petition and slightly elaborating the same. Two important admissions were extracted from the petitioner, during the course of cross-examination, in relation to election of the respondent as a Member and President of the Bangarupalyam Mandal Parishad, and election of her husband as Sarpanch of Nalgamapally Village. The relevant portion of the evidence reads as under:
It is true that the first respondent was elected as President of Mandal Parishad against the constituency reserved in favour of Scheduled Caste Women. I was elected to the Palamaneru Constituency of the Legislative Assembly in the year 1999. Bangarupalyam Mandal is part of Palamaneru Assembly Constituency. By virtue of my being elected as MLA from Palamaneru Constituency, I become an Ex-officio member of Bangarupalyam Mandal Parishad. It is true that the first respondent contested for the ZP Territorial Constituency of Bangarupalyam reserved for SC women in the year 2001, on behalf of Telugu Desham Party. She was not elected. One Smt. Munemma won that election against the first respondent. I did not raise any objection as to the social status of the first respondent when she contested for the Mandal Parishad or the Zilla Parishad, because I was not a candidate.
It is true that the husband of first respondent was elected as Sarpanch of Nalgampally Village in the year 1988. The office of Sarpanch of that village during that election was reserved for Scheduled Caste.
So far as the nomination for the year 2004 Assembly Elections is concerned, the respondent stated that he raised an oral objection but admitted that he did not state so, in the election petition, or the affidavit.
15. PW2 is said to be a resident of Bommayapally Village, which is at a distance of two kilo meters from Nalgampally Village, the native place of the respondent. In the affidavit filed in lieu of chief-examination, he stated that he attended the marriage of respondent at Nalagampally Church and he named certain other persons, who are said to have attended the marriage. He has also stated that the respondent and her husband regularly attend Church. In the cross-examination, it was elicited through him that he was not converted into Christianity but he goes to Church occasionally, now and then. A suggestion was also made to the effect that the Malas, Madigas and other Scheduled Castes in the area are also called as Adi Andhras and that the respondent is a born Hindu, and continues to be so.
16. The evidence of PW3 is some what on different lines. He is resident of another Village nearby Nalagampalli. According to him, the respondent is a Adi Andhra converted Christian. He claims that he too has attended the marriage of the respondent, which was said to have been performed as per Christian ceremonies. In the cross-examination, he stated that he does not remember the date and year of the marriage of the respondent. He has also stated that himself and the respondent belong to the same caste, but the latter got converted into Christianity. He pleaded ignorance as to the year, in which the respondent was said to have been converted into Christianity. It is to be noted here that the plea in the Election Petition was that the respondent is a born Christian, whereas the evidence of PW3 is that she was converted into Christianity. Except for minor details, the evidence of PW4 is on the same lines i.e. he attended the marriage of the respondent and that the respondent, who was originally Mala by caste, was converted into Christianity. In the cross-examination, he stated that the conversion of the respondent took place about 20 to 25 years back. He stated that he does not remember the date of marriage of the respondent or the name of the Priest, who is said to have performed the marriage.
17. The evidence of PW6 is only to the effect that he attended the marriage of the respondent and it was suggested to him that he was deposing falsehood on account of his acquaintance with the petitioner. According to PW7, the respondent was converted to Christianity. PW8 stated that he too attended the marriage of the respondent and that he has seen the respondent and her family members going to Church on every Sunday. In the cross-examination, he stated that being an illiterate, he cannot say as to how many years back, the marriage took place, and that he does not go to Church, not being a Christian. The evidence of PW9 is on the same lines. PW10 deposed to the effect that he had canvassed for the respondent in the year 1994 in the MPTC Elections and that he invited the respondent and her husband, for the marriage of his sister, in the year 1993. He stated that the husband of the respondent is a born Christian, whereas she was converted to Christianity. He denied the suggestion that he is stating falsehood, at the instance of the petitioner. The evidence of PW11 is not of much significance.
18. The Presbyter of Church of South India; Town Church, Chittoor was examined as PW12. He brought baptism and marriage registers of the Church. According to an entry, a person by name Mani was baptized on 11.6.1961, and was given a Christian name "Sigamony". The occupation of the said converted person was shown as "Forest Officer". That entry is marked as ExA7. The petitioner sought to relate this, to the father of the respondent. On 18.4.1965, a person by name Rajasekharan was baptized and the extract of the same is marked as ExA8. It is sought to be related to the brother of the respondent. Ex.A9 is the similar entry in respect of a person by name Ravi Chandar. In the chief-examination itself, questions were put to PW12 suggesting that he deliberately omitted to produce the marriage register prior to 1965. He admitted that Pages 128 and 129 of the baptism register are missing. It was suggested to him that the pages were deliberately removed, to suppress the information relating to the respondent. In his cross-examination, he admitted that he does not have any personal knowledge about the entries, marked as Exs.A7 to A9. To other similar questions, he claimed ignorance and want of knowledge.
19. PW13 is a Presbyter of Church at Bangarupalyam from 1982 to 1987. He stated that he is acquainted with the persons of the locality, including the father-in-law of the respondent. He stated that he solemnized the marriage of the respondent and that he entered the same in the marriage register maintained by the Church. In the cross-examination, he admitted his acquaintance with the petitioner. He has also admitted that he does not have any record, in relation to the marriage of the respondent with Mr. Thomas or any publication thereof. It was suggested to him that respondent was never baptized and that he did not solemnize her marriage.
20. The brother of the respondent was examined by the petitioner; as PW14. In chief-examination, he denied the suggestions, that his father or other family members have practiced Christianity. He admitted that his marriage, with a lady by name Elizabeth, was entered in the marriage register. In the cross-examination on behalf of the respondent, he stated that in their village, the pastor was the only person to perform the marriages of Harijans, irrespective of their religion. The Pastor, who is working at Bangarupalyam Church from 2003 onwards, was examined as PW15. He admitted that some of the pages in the marriage register, marked as Ex.A12, are missing. He sought to explain the discrepancy in the matter of maintaining the register, by stating that it may have occurred in the process of entering the particulars from one register, to another. He stated that the petitioner approached him with a request to furnish certified copies of the relevant registers, and that he did not accede to the same.
21. PW16 is the mother of the respondent. Extensive suggestions were made to her, to the effect that she embraced Christianity and that her children are born Christians. She was confronted with her written statement in a suit.
22. PW18 is the maternal aunt of the respondent and PW.17 is the husband of PW.18. In their affidavits, both the witnesses said that they are acquainted with the family of the respondent and that the latter is a Christian. In the cross-examination, their attention was drawn to OS No. 664 of 2001 filed by the children of Kanthamma, mother of PW. 18, wherein the plaintiffs as well as defendants therein were described as Hindus. It was specifically suggested to them that the respondent never embraced Christianity.
23. The important documentary evidence relied upon by the petitioner is in the form of the certified copies of certificates issued by various educational institutions, where the respondent studied. Ex.Al is the study certificate issued by the Principal, Municipal Upper Primary School Punganur. In that, it was stated that the respondent is Adi Andhra, by caste, as per school records. However, at the end of the certificate, in brackets it was written as 'converted Christian'. ExA2 is the extract of General Register of ZP Girls High School, Kuppam. The name of the respondent was shown against Sl. No. 630 and her caste was shown as "Adi Andhra Christian". ExA3 is the certified copy of the Transfer Certificate, issued to the respondent by the ZP Girls High School, Kuppam. Against Column No. 4, relating to Nationality and Religion, it was shown as "Indian-Hindu-Adi Andhra-Christian". Ex.A4 is the extract of admissions register of Government Junior College, Palamaner, relating to the respondent. Against caste, same entry as in Ex.A3, was made. In the study certificate issued by the Mandal Parishad Upper Primary School Kuppam, marked as ExA5, the respondent was described as Adi Andhra Christian. The rest of the documents are the extracts of the records maintained by Church.
24. The gist of the oral evidence adduced on behalf of the respondent is as under:
The respondent deposed as RW1 and stuck to the stand taken by her in the written statement. Hardly any contradiction was extracted, during the course of her extensive cross-examination. She reiterated that she was never converted to Christianity, she was elected as a Member of Mandal Parishad in the year 1995 against a reserved vacancy for Scheduled Caste Women and that her husband was elected as a Sarpanch, which too was reserved for Scheduled Caste, She denied the suggestion that she did enclose necessary documents to her nomination, on the date of filing. She was also cross-examined on certain aspects, relating to her employment, before she filed the nomination. She stated that in the school records, entries were made by the officials concerned, without any reference to, or information from, her father. She claimed ignorance about the very concept of baptism, and she stated that she was never baptized. According to her, she goes to Church occasionally, on being invited to marriages and other functions, arranged therein. She stuck to her stand that she was a borm Hindu. She denied the suggestion that she does not go to Hindu Temples or that she does not observe Hindu festivals. She filed the case certificate issued to her by the Mandal Revenue Officer as well as the other related documents, having a bearing upon the social status of herself and her family members.
25. RW.2 is a person who was elected as Sarpanch of Nalagampally Village in the year 1995. He stated that the respondent is a Mala Hindu and that she was being invited to the functions of Malas and Madigas in the village. According to him, the marriage of the respondent was performed as per Hindu Customs, such as wearing Tilakam and tying Mangala Sutram. Suggestions to the contrary were made in the cross-examination. The evidence of RWs.3 toll and 16 is almost on the same lines. All of them have stated that they are acquainted with the respondent and her family and that she is Hindu by caste. The additional factor is that RWs.11, 13 and 16 stated that in their locality, marriages take place between the Hindu Malas, on the one hand, and the Christian Malas, on the other. They have furnished the instances by referring to some names. Distinguishing feature among these three witnesses is that while RWs.ll and 13 stated that they are Mala, whereas RW.16 stated that he is a converted Christian. The nature of suggestions put to these witnesses are almost uniform.
26. The Sarpanch of Moram Gram Panchayat deposed as RW.12. He stated that he supported the respondent in the year 2004. Assembly Elections and as per his knowledge and observation, the respondent is a Hindu Mala and observes all Hindu customs and practices. RW.14, who belongs to a different caste, stated the same thing as was deposed by RWs.3 to 11 and 16.
27. Coming to the documentary evidence, Ex.Bl is the Caste Certificate, dated 9.1.2004, issued by the Mandal Revenue Officer, Bangarupalyam, to the respondent. It is certified that she belongs to 'Mala (SC-C)' community. Similar certificates, issued in favour of brothers and sister of the respondent are marked as Exs.B43 to B.46. The Sub-Registrar, Bangarupalyam, issued a certificate, dated 4.7.2005, marked as Ex.B2 to the effect that, in the special marriage register maintained in his office, there is no entry, in relation to the marriage of the respondent, with Mr.Thomas. Community, nativity and date of birth certificates, issued by the Mandal Revenue Officer, Bangarupalyam, in favour of the two sons of the respondent are marked as Exs.B3 and B4. Both of them were shown as belonging to Mala (SC-C) Community. The extract of service book of the father of the respondent was filed as Ex.BS. His 'race' was shown as Harijan.
28. Ex.B6 is the certificate issued by the MPDO, Bangarupalyam, certifying that the respondent was elected as MPTC of Bangarupalyam Mandal as well as its President between 18.3.1995 and 17.3.2000 and that the same was reserved for Scheduled Caste (women) category. Exs.B7 and B8 are the caste certificates, issued to the respondent and her husband. Exs.B9 to B12 are the copies of comprehensive household human development survey information prepared by the Mandal Revenue Officer, Bangarupalyam, in respect of the family members of the respondent and her brothers. Against Column No. 16, their caste is shown as 'Mala' and against Column No. 17, the religion is mentioned as Hindu. Ex.Bl6 is a copy of orders of the Government issued in G.O. Rt. No. 61, dated 6.4.2004, to the effect that the resignation of the respondent, as Regional Organisor was accepted. Ex.B 17 is the copy of the nomination filed on behalf of the respondent. The other documents, are not of much importance.
29. The social status of an individual has its own significance in the context of election to reserved constituencies. Unlike other factors, an element of uncertainty and difficulty exists, in the matter of ascertaining the social status of a candidate, particularly when there is serious dispute between the rival contenders. The complexity or confusion is confounded, on account of the fact that the nature of practices or the method of admission to the fold of different religions is not uniform. In case of Christianity, entry of a person into its fold can safely be discerned, from the factors such as baptism. Similar practices of definite connotation exist in case of Islam. However, in the case of Hindusim, no definite practices prevail. Much would depend upon the progeny and the continued faith. That is why, the Supreme Court held on several occasions, that Hindusim is more, a way of life, than a religion.
30. The Constitution recognizes the status of a Scheduled Caste, only as long as he professes the faith in Hinduism. If he embraces another religion, he looses the status, and the consequential benefits. The exercise to ascertain the social status of an individual, particularly when it is challenged by another, is fraught with its own complications.
31. In the case of Punit Rai v. Dinesh Choudhary , the Supreme Court held that when a set of facts existed to indicate that a person did not belong to Scheduled Caste, but that very person asserts that he acquired such a status, it is for him to prove the facts to the satisfaction of the Court. The burden was held to be squarely upon the person, who asserts it. The principles of burden, and onus of proof, were applied in the same manner, as in any other cases. Similarly, in the case of Thiru John v. Returning Officer , it was held that though the burden to prove that a returned candidate does not hold the requisite qualifications, under Section 84(b) of the Representation of the People Act 1951, squarely rests upon the person who challenges the election, the onus would shift to the returned candidate, once the election petitioner places before the Court, the requisite material, indicating that the said candidate did not hold the qualifications.
32. In the case of Director of Tribal Welfare, Government of A.P. v. Laveti Girl , the Supreme Court held that the burden to prove the social status would rest upon the person, who propounds it. Another principle, laid down in that case, which had a bearing upon the present case, is that the entries in school records would have their own probative value, in the matter of deciding the date of birth and other personal antecedents of the concerned individual. In Kumari Madhuri Patil v. Additional Commissioner , it was held that the entries in school records would be an important factor, in the matter of determining the social status. It was also pointed out that fraud, if played, in securing admission against reserved category, would vitiate everything.
33. An important principle of law was laid down in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju , to the effect that an adjudication as to the genuinity or otherwise of the certification of social status in one set of proceedings, including an Election Petition, does not operate as res judicata in subsequent set of proceedings. It was observed that each election would provide a fresh cause of action, in the context of determination of the social status of a candidate. In Shobha Hymavathi Devi v. Setti Gangadhara Swamy AIR 2005 SC 800, it was held that if a caste certificate is obtained by exerting influence, such a certification does not bind the Court, hearing an Election Petition.
34. In the case of Ganpat v. Presiding Officer , the Supreme Court observed that though it is not a condition precedent for an election petitioner, to have raised an objection, to the nomination, at the time of scrutiny, any failure, in this regard, would have its own bearing, on the election petition, filed subsequently. In the same judgment, the consequences, that flow, from the marriages between persons professing different faiths take place were explained. Illustration was given in Paragraph 10 of the judgment, to the effect that if a person belonging to a particular faith marries a person of different faith, and even accepts other faith at the time of marriage, it would not be a conclusive factor, nor can it result in cessation of the original social or religious status.
35. A Constitution Bench of the Supreme Court held in Guntur Medical College v. Mohan Rao , that, even where an individual was born to a couple, who were converted to Christianity, if he is able to show that he embraced Hindusim, to which his parents belonged prior to their conversion, and that he was accepted into the fold by the community he can be treated as a Hindu. To the same effect is the judgment of the Supreme Court in S. Anbalagan v. Devarajan .
36. If the present case is examined with reference to the pleadings, evidence adduced by the parties, arguments advanced by the learned Counsel, and by applying the principles enunciated by the Supreme Court in the cases, referred to above, the following findings would emerge:
Issue No, 1
37. The plea of the petitioner was that the respondent is a born Christian and that her parents embraced Christianity long ago. The evidence, which was discussed above within permissible limits of brevity, would clearly indicate that one after the other witnesses, who deposed on behalf of the petitioner, stated that the respondent was converted into Christianity. Much emphasis was laid by almost all the witnesses about the marriage of the respondent with one Mr.Thomas. The marriage was said to have been performed according to Christian customs and practices and a presumption was drawn to the effect that the respondent is a Christian. The evidence adduced on behalf of the respondent, in this connection, is equally emphatic, to the contrary. Though the petitioner was successful in filing the extracts from baptism register and marriages register, in relation to certain members of the family of the respondent, he did not file any such document in relation to the respondent. The question as to whether the extracts, such as Exs.A7 to A9, from the baptism and marriages registers, which were not required to be maintained under any Statute, were admissible in evidence, particularly, when they were not spoken to by the person, who made the entries, is a different thing altogether.
38. Having been born in a religion, is substantially different from conversion into it. The former situation exists where the parents of the person concerned, originally belonged to one religion, but got converted into another, and after such conversion, the person, whose status is in controversy, was born. In such a case, a person can be said to have been born in that religion, provided, necessary practices were undergone by such individual after birth. Conversion, on the other hand, comes into existence, where an individual, on his own accord, embraces another faith. It is axiomatic that before such conversion, the person was in a particular faith. The facts, which are needed to prove that a particular person acquired faith or religion by birth, are totally different from those, which are necessary to prove that an individual had converted into another faith. Even if the parents of an individual were converted into another religion from their original one, after his birth, it shall always be open to such individual to remain in the original faith or fold. The Hon'ble Supreme Court explained this phenomenon, in an apt manner, in the case of Guntur Medical College's case (supra), as under:
7. The reasoning on which this decision proceeded is equally applicable in a case where the parents of a person are converted from Hinduism to Christianity and he is bom after their conversion and on his subsequently embracing Hinduism, the members of the caste to which the parents belonged prior to their conversion accept him as a member within the fold. It is for the members of the caste to decide whether or not to admit a person within the caste. Since the caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member. The only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the caste, for, as pointed out by Krishnaswami Ayyangar, J., in Durgaprasada Rao v. Sudarsanaswami AIR 1940 Mad. 513 "in matters affecting the well being or composition of a caste, the caste itself is the supreme judge" (emphasis supplied). It will, therefore, be seen that on conversion to Hinduism, a person born of Christian converts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such member, if the other members of the caste accept him as a member and admit him within the fold.
The petitioner himself is not sure as to whether the respondent was a born Christian or was converted into that fold. Strictly speaking, the necessity to undertake the verification of various factors in the judgment, referred to above, does not arise.
39. Marriage is another incident, which is prone to bring about the change in an individual's faith or religion. It is not uncommon that the persons belonging to one faith marry those belonging to others. Here again, the situation does not emerge in uniform or absolute terms. Much would depend upon the volition of the person either to unconditionally accept and embrace the faith of the matrimonial partner or to retain and remain in the original faith. The effect of certain steps, which occur during the marriages of such nature, were succinctly dealt with by the Supreme Court in Ganpat 's case (supra), and it is observed as under:
10. This matter has also to be looked at from another point of view. There is evidence in this case that persons who still continue to be Hindus marry persons who have become Buddhists and that in such cases the officiating Bhiku asks them to become Buddhist on the occasion of the marriage. Again this might explain the resort to the Buddhist rites being followed in these marriages even where one of the parties to the marriage is a non-Buddhist. There is no evidence that in such cases the Hindu partner does not profess Hinduism thereafter. There is also evidence that even some Hindu Mahars celebrate their marriages according to Buddhist rites- See PW25's evidence regarding his nephew's marriage. It is very difficult therefore to rely upon such evidence alone to hold that either the 2nd respondent or the 6th respondent are Buddhists. It should also be noted that the 6th respondent also denies that he became a Buddhist. We consider, therefore, that the evidence in this case does not satisfactorily establish that either the 2nd respondent or the 6th respondent ceased to profess Hinduism, they having been undoubtedly born as Hindus.
40. One does not have to look to any external evidence, in this regard. It has already been pointed out that the respondent was elected as a Member and thereafter, President of Mandal Parishad in the year 1995, against a vacancy reserved for Scheduled Caste Women. The petitioner was an ex officio member of the Mandal Parishad during that term. He did not raise any objection as to the social status of the respondent. Almost simultaneously, the husband of the respondent was elected as Sarpanch of a Gram Panchayat within the constituency of which the petitioner was a Legislator. The Office of Sarpanch was also reserved for Scheduled Caste. He did not object to this also. The community can be said to have expressed its approval to the claim of the respondent, as to her social status. It becomes evident that being a Member of Legislative Assembly of the Constituency, at the relevant point of time, the petitioner acquiesced in the status of the respondent as a Hindu Mala. It is not his case that the respondent has undergone any conversion, or other similar activity, or had otherwise embraced Christianity, subsequent to the year 2000.
41. Further, the petitioner did not raise any objection to the nomination of the respondent, when it was being scrutinized. The observation of the Supreme Court in Ganpat's case (supra), viz.
We must first of all notice the fact that when the nominations were scrutinized the appellant did not object to the nomination papers of respondents 2, 6 and 9 being accepted on the ground that they were not members of the Scheduled Castes. Though legally there is no bar to the appellant raising that question in the election petition questioning the election of the 2nd respondent his allegation that respondents 2, 6 and 9 are not members of the Scheduled Castes would be considerably weakened because of his failure to object at the time of the scrutiny of the nomination papers," gets attracted.
42. The omission on the part of the petitioner, to raise objection, at the stage of scrutiny of nominations has its own significance. Hence, issue No. l is answered against the petitioner.
Issue No. 2.
43. Though the second issue is also related to the first one, it has a different tinge of legal implications. The respondent based her claim for her status as Mala (SC-C) on Ex B1. In the Election Petition, an allegation was made to the effect that ExB1 was obtained by playing fraud and by using undue influence. That portion of the pleading, was struck off by this Court, since it was not based upon any definite information or knowledge. All the same, if the petitioner is able to demonstrate that the respondent does not belong to Scheduled Caste, ExB1 does not come to the rescue of the latter. The judgments of the Supreme Court in Satrucharla Vijaya Rama Raju 's case (supra) and Shobha Hymavathi Devi's case (supra), become relevant, in this regard.
44. Except taking a bald plea that the respondent does not belong to Hindu Mala Community, the petitioner did not place any acceptable and reliable material before this Court. Even assuming that the onus of proof shifted to the respondent to prove that she belongs to Scheduled Caste Community, it clearly emerges that she has not only filed ExB1, but also has stated consistently, that she never embraced Christianity, and continued to remain as Hindu Mala. The documents filed by the petitioner as Exs. Al to A7, the extracts from various school records, are as vague and inconsistent, as they could be. In two important documents, the respondent was described as "Indian-Hindu-Adi Andhra-Christian". This itself shows the lack of seriousness in the matter of maintaining records. Not a single entry is attributed to any information furnished by the respondent. Such documents cannot be treated as the basis, to unsettle the mandate of the electorate.
45. The Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (for short 'the Act') prescribes the detailed procedure, for issuance as well as cancellation of Caste Certificates. It may be true that the validity of a caste certificate can certainly be decided by a Court, hearing an Election Petition, and the certificate issued under the Act would not be conclusive. But the bona fides of a person assailing genuinity of a Caste Certificate can be ascertained, to a large extent, by verifying as to whether he had initiated any proceedings under the Act, which provides for a detailed mechanism and elaborate enquiry into the matter. Therefore, this issue is also answered against the petitioner.
46. The evidence adduced on behalf of the petitioner is mostly oral in nature. It has already been pointed out that the documentary evidence is not much of use and relevance. The Supreme Court had sounded note of caution, from time to time about danger, in interfering with the mandate of the people on the basis of oral evidence. In this context, reference may be made to the judgment of the Supreme Court in the case of Kanhaiyalal v. Mannalal , wherein it was observed as under:
46. Oral testimony, therefore, will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source. The matter would have been different if there had been an immediate written complaint to the Returning Officer against Kanhaiyalal as had been made in the case of his workers.
47. An election dispute is not a private feud between one individual and another. The whole constituency is intimately involved in such a dispute. Shaky and wavering oral testimony of a handful of witnesses cannot still the dominant voice of the majority of an electorate.
The fact that the petitioner himself did not seek the relief that he be declared as the successful candidate, is another factor, which is worth being taken note of.
47. For the foregoing reasons, the Election Petition is dismissed. There shall be no order as to costs.