Delhi High Court
Ms. Sunita Wife Of Shri Ghanshyam vs Krishan Lal S/O Late Shri Des Raj And Ors. on 29 November, 2004
Equivalent citations: AIR2005DELHI284, 115(2004)DLT499, 2005(79)DRJ374, AIR 2005 DELHI 284, (2005) 79 DRJ 374 (2004) 115 DLT 499, (2004) 115 DLT 499
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. The question that has arisen for consideration in this petition under Article 227 of the Constitution is whether a lady belonging to a Rana Rajput caste (a forward caste), after marriage to a member of a Jatav caste (a Scheduled Caste) belongs to the Jatav caste or does she continue to remain a member of the Rana Rajput caste.
2. This question has arisen because of an election petition bearing ECP No. 02/2003 having been filed by Respondent No. 1 challenging the election of the Petitioner.
3. An election was held for the post of a Municipal Councillor in respect of a seat reserved for a Scheduled Caste woman from Ward No. 20, Subhash Nagar Ward of Municipal Corporation of Delhi, Assembly Constituency No. 13, Hari Nagar, New Delhi. The election was held on 27th March, 2002 and the results were published on 28th March, 2002. The Petitioner was declared elected having got 14,757 votes as against Respondent No. 2 who got 13,755 votes.
4. The result of the election was challenged by Respondent No. 1 who is an elector from the same ward. The ground of challenge was that the Petitioner was not qualified to contest the election from a seat reserved for a Scheduled Caste woman because she belonged, by birth, to a Rana Rajput caste, which is a forward caste. It was said that although she may have got married to a person belonging to the Jatav community (Scheduled Caste), she did not belong to that caste.
5. The Petitioner contested the election petition and averred, inter alia, that she was married to Shri Ghanshyam who is a Jatav, which is a Scheduled Caste in Delhi. She stated that by virtue of her marriage, she belonged to the Jatav community and had a certificate indicating that she belonged to a Scheduled Caste at the time of filing her nomination and at the time of her election.
6. On the basis of the pleadings, the following issues were framed by the learned Additional District Judge who heard the election petition:-
1. Whether the petitioner does not have any locus standi to file the present petition?
2. Whether the present election petition is defective as alleged in para 3 of preliminary objection of W.S. of resp. No. 1 and if so, its effect.
3. Whether this petition is bad for non joinder of necessary parties and its effect?
4. Whether the respondent No. 1 belongs to a scheduled caste category?
5. Whether the respondent No. 1 acquired the status of a scheduled caste by virtue of her marriage with a Jatav notified as scheduled caste category for the purpose of her eligibility to contest municipal election in Delhi?
6. Whether the election of respondent No. 1 as a municipal councilor from Ward No. 20 is liable to be declared void on facts mentioned in the petition?
7. If issue No. 6 is decided in affirmative whether resp. No. 2 is entitled to be declared elected from Ward No. 20 as municipal councilor?
8. Relief.
7. In respect of Issues No. 4 and 5, which are really the key issues, the learned Judge held in the impugned judgment and order dated 17th August, 2004 that the Petitioner did not acquire the status of a Scheduled Caste merely by virtue of her marriage to Shri Ghanshyam and that she had manipulated the Scheduled Caste certificate in her favor. Consequently, these issues were decided against the Petitioner with the result that her election was held null and void.
8. Feeling aggrieved, the Petitioner preferred the present petition under Article 227 of the Constitution.
9. Learned counsel for the parties were heard on 1st and 2nd November, 2004 when orders were reserved.
10. The admitted position is that the Petitioner belonged to a forward caste by birth and that she was married to Shri Ghanshyam who belongs to the Jatav caste. What has to be determined is whether by virtue of her marriage, the Petitioner becomes a member of the Jatav Scheduled Caste or not. In fact, no other issue was urged by either of the learned counsel appearing in the matter.
11. Article 366(24) of the Constitution defines the expression "Scheduled Castes" as follows:-
"366. Definitions. - In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say -
(1) to (23) xxx xxx xxx (24) "Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution; (25) to (30) xxx xxx xxx"
12. A perusal of the above would show that reference is made to Article 341 of the Constitution. This Article reads as follows:-
"341. Scheduled Castes. - (1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
13. In so far as Delhi is concerned, the Constitution (Scheduled Castes) (Union Territories) Order, 1951 is relevant. Paragraph 2 of this Order provides that the castes mentioned in the Schedule shall be deemed to be Scheduled Castes in respect of the localities specified therein. Part-I of the Schedule has relation to the Union Territory of Delhi and Item No. 10 thereof mentions the Jatav caste. There is, therefore, no dispute between any of the parties that the Jatav caste is a Scheduled Caste so far as Delhi is concerned.
14. Paragraph 3 of the Order reads as follows:-
"Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste."
15. A perusal of paragraph 3 above would show that there is no reference to a person acquiring his caste only by birth and in no other manner.
16. The Supreme Court has recognized the following methods by which a Hindu acquires his caste. These are:-
(a) By birth.
(b) By marriage.
(c) By adoption.
(d) By any other voluntary method.
(e) By obtaining a false certificate.
17. It is well settled by several decisions of the Supreme Court that ordinarily, a caste is acquired by birth. [See for example, S. Rajagopal v. C.M. Armugam, and Kailash Sonkar v. Smt. Maya Devi, ]. Normally, the caste of an individual depends on the caste of his/her father but there has been a rare case where a person has claimed to belong to the caste of his mother [See Punit Rai v. Dinesh Chaudhary, ], but we are not concerned with this issue.
18. There have been cases of a change of caste by adoption. [See for example, A.S. Sailaja v. Principal, Kurnool Medical College, , N. Bhuvaneshwar Rao v. Principal, Osmania Medical College, and R. Srinivasa v. Chairman, Selection Committee, ]. Again, we are not concerned with such cases.
19. There have also been cases of other voluntary acts, such as conversion or re-conversion to Hinduism, which have dealt with what caste the convertee would belong to. For example, in Kailash Sonkar, the daughter of Christian parents who were originally Hindus, converted to Hinduism and claimed to belong to the original caste of her parents. This was permissible, as accepted by the Supreme Court.
20. In the present case, I am not directly concerned with a situation where a fraudulent Scheduled Caste certificate has been obtained although this was one of the allegations against the Petitioner. However, since a mention was made of it, I propose to deal with the issue at a later stage.
21. The crux of the matter really is whether on marriage, a Hindu lady takes up the caste of her husband.
22. In Valsamma Paul v. Cochin University, , the Appellant was a Syrian Catholic (a forward class) by birth. She voluntarily married a Latin Catholic (fishermen community), admittedly a backward class. She applied for the post of a lecturer which was reserved for Latin Catholics. She was selected to that post but her appointment was challenged. The Kerala High Court held that she was not entitled to the benefits of Articles 15(4) and 16(4) of the Constitution, which are intended for the advancement of socially and educationally backward classes of citizens, merely because of her matrimonial alliance. Her appointment was, therefore, held to be void.
23. In appeal, the Supreme Court upheld the view of the Kerala High Court but while doing so, it was noted, in paragraph 31 of the Report, that a wife becomes an integral part of her husband's marital home on account of her marriage. She, therefore, not only becomes a member of his family but also a member of his caste. The Supreme Court noted that this was the view prevailing for the last almost 150 years. Paragraph 31 of the Report reads as follows:-
"31. It is well-settled from Bhoobum Moyee Debia v. Ram Kishore Acharj Choudhry that judiciary recognised 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. 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."
24. The reason why the Appellant in the Supreme Court was not given the benefit of Articles 15(4) and 16(4) of the Constitution was that these benefits are intended only to those who are socially, culturally and educationally backward by birth. The Supreme Court noted that the object of reservation is to remove these handicaps, disadvantages, sufferings and restrictions to which Dalits have been subject to and it is by removing these, that they are sought to be brought into the mainstream of the nation's life by providing them opportunities and facilities. When a forward caste lady is transplanted as a Dalit by virtue of a matrimonial alliance, she has already had an advantageous start in life by being born in a forward caste without having been subjected to the same handicaps, disadvantages or sufferings as a Dalit. Consequently, acquisition of status of a Scheduled Caste by such voluntary mobility would, for the purposes of Articles 15(4) and 16(4) of the Constitution, be a fraud on the Constitution and would frustrate the benign constitutional policy under these Articles.
25. The unstated premise in Valsamma Paul is that there can be a change of caste by marriage; but that change does not entitle the individual to the benefits of Articles 15(4) and 16(4) of the Constitution. However, this does not mean that such an individual is not entitled to other benefits that may be due to a person belonging to a Scheduled Caste. It is in the latter context that Kailash Sonkar was decided.
26. In Kailash Sonkar, the successful candidate in an election was born of Christian parents who had converted from Hinduism. She was baptized and brought up as a Christian. Later on, she converted to Hinduism and the question was whether she could claim to belong to the original caste of her parents. While answering the question in the affirmative, the Supreme Court noted that one of the tests to be applied would be acceptance of the community of the caste of the parents as well as the intention of the convertee to re-convert to her old faith (Hinduism) and abjure the new religion (Christianity) in unequivocal terms. The Supreme Court also noted that acceptance by the old community (Hindus) could also be inferred from success in an election by majority, particularly in the case of a reserved constituency because that may amount to proof of acceptance by the community and a revival of the caste to which the parents of the candidate belonged.
27. Similarly, in Principal, Guntur Medical College v. Y. Mohan Rao, , the Supreme Court accepted the view that after conversion or re-conversion to Hinduism, a person could become a member of his earlier caste if the members of that caste accept him as a member and admit him within their fold.
28. In Rajagopal, the principle of voluntary mobility or transplantation was tacitly accepted but eventually left open because on the facts of that case, it was held that there was no evidence to show that Rajagopal, on reconversion had accepted Hinduism.
29. The learned Additional District Judge has referred to N.E. Horo v. Jahanara Jaipal Singh, but that is a totally different case because firstly it pertained to a member of a Scheduled Tribe and secondly what the Supreme Court held was that on marriage (and acceptance by the tribal community), the lady would belong to the tribal community. Whether she became a member of the Scheduled Tribe or not was not an issue that was required to be decided by the Supreme Court.
30. I think the confusion that has arisen in the impugned judgment is because of a failure to distinguish between the benefits that a Scheduled Caste person would have under the Constitution and otherwise. In principle, there can be no doubt, as has been held by the Supreme Court on several occasions, that a lady belonging to a forward caste on marriage to a member of a backward caste, gets transplanted into the caste of her husband. The question is that having been so transplanted, is she automatically entitled to all the benefits that her husband would be entitled to.
31. The Supreme Court has drawn a distinction between the benefits under Articles 15(4) and 16(4) of the Constitution and in respect of these, the Supreme Court has clearly held that such a lady would not be entitled to these constitutional benefits. This does not mean that the lady would not be entitled to other benefits that her husband may be entitled to such as standing for an election from a reserved constituency. It is in failing to appreciate this distinction that the impugned decision has gone wrong. The learned Judge applied the constitutional philosophy to statutory benefits and on that basis concluded that the Petitioner could not have stood as a candidate from a reserved constituency. This is clearly incorrect as has been pointed out by the Supreme Court in some of the cases discussed above. The law is that in a case such as the present, the Petitioner would not be entitled to the benefits of Articles 15(4) and 16(4) of the Constitution but that does not preclude her from claiming other benefits such as contesting an election from a reserved constituency.
32. It was submitted by learned counsel for Respondent No. 1 that the Jatav community did not accept the Petitioner as belonging to that caste. According to him, this was also one of the necessary ingredients for determining whether a change of caste was effected or not. Reliance was placed on Punit Rai.
33. In some of the earlier decisions rendered by the Supreme Court [Kailash Sonkar, Mohan Rao and C.K. Arumugam v. S. Rajgopal, ] the question of acceptance by the community arose in the context of conversion or re-conversion to Hinduism - which is not the situation in the present case. However, in Punit Rai the principle of acceptance was made applicable even to a case where there is no conversion or re-conversion. It is for this reason that this argument requires to be considered.
34. At the outset, it must be stated that there is nothing to suggest that any ceremony or other formality (like a meeting of the panchayat) has to be carried out before a person like the Petitioner could be accepted as a Jatav. No specific pleading has been pointed out in this regard, nor has any issue been framed in this connection. Nevertheless, the Petitioner did say in her affidavit by way of examination in chief that she was fully accepted by the biradari or community of Jatavs as its member. In support of her statement, she produced her father in law, her husband and three other members of the community. She also explained in her cross-examination that by biradari she meant the elders in her husband's family.
35. The learned Judge rejected her testimony in this regard only because there was nothing to show that she was admitted into the Jatav community by any custom or tradition. I am afraid the learned Judge has erred in this conclusion. It was nobody's case that any particular custom or tradition was required to be followed and that was not done. No text or treatise was cited in this regard. The averment made against the Petitioner was bald and vague and could only have been met in the manner in which it ultimately was. It must also be noted that Respondent No. 1 did not produce any contra evidence to the effect that the Petitioner was not accepted a member of the Jatav caste. The submission made by learned counsel for Respondent No. 1 is, therefore, rejected.
36. The presumption made in Kailash Sonkar that the Petitioner belongs to the Scheduled Caste community because she secured a majority of votes in her reserved constituency cannot now be held to be of any consequence because such a presumption was not even adverted to in Punit Rai. But that does not make any difference in so far as the conclusion that I have reached is concerned. There is other material available to show that the Petitioner was accepted as a member of her husband's community.
37. It was also submitted by learned counsel for Respondent No. 1 that the Petitioner had fraudulently obtained a certificate that she belonged to a Scheduled Caste. Reliance in this context was placed upon an order dated 10th July 2002 passed by the Sub-divisional Magistrate, Rajouri Garden, Delhi who held that the Petitioner obtained a certificate to the effect that she belongs to a Scheduled Caste by furnishing false information. By that order he cancelled her Scheduled Caste certificate with retrospective effect. It is not necessary for me to enter into the controversy whether the order of the learned Magistrate is correct or not. The fact is that on the basis of decisions of the Supreme Court it must be held that the Petitioner belongs to a Scheduled Caste, whether she holds a valid certificate for this is wholly irrelevant for the purposes of this case. I am also told that the question of how the Petitioner got a Scheduled Caste certificate is already under investigation and any finding here may prejudice the investigation.
38. In this context, I may only note the submission made by learned counsel for the Petitioner to the effect that Section 17 of the Delhi Municipal Corporation Act, 1957 gives the grounds for declaring an election to be void. One of the grounds is that on the date of his election, a returned candidate was not qualified or was disqualified to be chosen as a Councillor under this Act. This is provided for in Section 17(1)(a) of the said Act which reads as follows:-
"17. Grounds for declaring elections to be void. - (1) Subject to the provisions of sub-section (2) if the court of the district judge is of opinion -
(a) that on the date of his election a returned candidate was not qualified or was disqualified, tobe chosen as a councillor under this Act, or
(b) to (d) xxx xxx xxx"
39. The submission of learned counsel was that on the date of the election, that is, 27th March, 2002 as well as on the date when the results were declared, that is, 28th March, 2002, the Petitioner was not disqualified because the Scheduled Caste certificate was cancelled by the Sub Divisional Magistrate only by an order dated 10th July, 2002. Although the said order mentions that it has retrospective effect, learned counsel for the Petitioner contended that this will not invalidate the election. As already held by me, it is not necessary to go into this controversy because on the merits of the issue, I have held that the Petitioner belong to a Scheduled Caste community by virtue of her marriage to Shri Ghanshyam. The contention urged by learned counsel for the Petitioner would, therefore, be only of academic interest.
40. The final contention of learned counsel for Respondent No. 1 was that in view of the Ministry of Home Affairs, Government of India circular letter dated 2nd May, 1975 bearing No. 35/1/72-R.U. (SCT.V) the Petitioner was not entitled to a certificate that she belonged to a Scheduled Caste. Reliance in support of this contention was placed on paragraph 3 of the enclosure thereto. This paragraph reads as follows:
"Claims through marriage:
The guiding principle is that no person who was not a Scheduled Caste or a Scheduled Tribe by birth will be deemed to be a member of a Scheduled Caste or a Scheduled Tribe merely because he or she had married a person belonging to a Scheduled Caste or a Scheduled Tribe. Similarly, ...."
41. First of all, I am not sure of the legal validity of the proposition laid down in this circular, particularly in the light of decisions of the Supreme Court mentioned above. But even assuming the guiding principle to be correct, my decision that the Petitioner belonged to a Scheduled Caste after her marriage is not based merely on her marriage to Shri Ghanshyam; it is also based on her acceptance by the community to which Shri Ghanshyam belongs, that is, the Jatav community.
42. Under the circumstances, it is not possible to uphold the view taken by the learned Additional District Judge. The impugned judgment and order dated 27th August, 2004 is set aside and it is held that the Petitioner belonged to the Jatav caste and could validly contest an election from the constituency from which she was elected. The writ petition is allowed but with no order as to with costs.