Orissa High Court
Dipti Baliar Singh vs Board Of Secondary Education, Orissa on 16 February, 1999
Equivalent citations: AIR1999ORI166, AIR 1999 ORISSA 166, (1999) 88 CUT LT 665
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT Pasayat, J.
1. Petitioner has come to this Court with a very unusual prayer. He seeks for a direction to the Board of Secondary Education, Orissa (in short, (he 'Board') to change his name and father's name in the records maintained by it and for correction of H. S. Certificate issued on 15-12-1991. Therein his name had been described as Susil Kumar Mallick, son of Kambisa Mallick.
2. Petitioner's case sans unnecessary details is as follows :
He is the son of one Lukar Baliar Singh who belonged to Scheduled Tribe. Foundation for such claim is !he decree in a suit (T.S. No. 14 of 1995) which was filed in the court of learned Additional Civil Judge (Junior Division), Baliguda. In the said suit prayer was for a declaration that Dipti Baliar Singh was the one and the same person as Susila Kumar Mallick. In the suit, widow and one son of late Lukar Baliar Singh were impleaded as defendants along with Kambisa Mallick. It was pleaded that while he was aged about three years, he was given in adoption to Kambisa Mallick of Tiarigam. There was no deed of adoption, After adoption he was reading in Sudra Seveashram under Baliguda Police Station. Kambisa Mailick belongs to Kandha community. In the year 1991, he passed Matriculation Examination. His adoptive father Kambisa Mallick did not show any affection for which he left his house and went back to his natural father. Though written statements were filed by all defendants, they were set ex parte and the suit was heard ex parte. In the written statement of defendant No. 3, it was stated that it is a fact that Dipti Baliar Singh, son of Luxas Baliar Singh is one and same man, viz. Sunila Kumar Mallick, son of Kambisa Mallick. It was accordingly decreed that Dipli Baliar Singh, son of Lukas Baliar Singh is the one and the same person, viz. Susil Kumar Mallick. Lukas Baliar Singh was serving as a primary school teacher in Kirikuti Primary School. He died in service in 1991. Petitioner approached the D.I. of Schools, Baliguda and the C.I. of Schools, Phulbani for his appointment as Primary School Teacher under the rehabilitation scheme. His name was wrongly recorded as Susila Kumar Mallick in the records of the schools and Board as he was adopted by Kambisa Mallick. Due to ill treatment and want of proper care, he left his adoptive father and came back to his natural father since long. But in the school records his name was recorded as Susila Kumar Mallick. Before H.S.C. Examination, he tried his best to change his name, but failed to make necessary corrections. Therefore, he has applied to the Board authorities for correction, but no action has been taken. He has relied on the legal heir certificate issued by the Tahasildar, Daringibadi, and the decree in the suit.
3. Though there is no legal bar on a Scheduled Tribe adopting a non-Scheduled Tribe person, but the Court while dealing with a case where the circumstances on the face of it appear to be suspicious, has to adopt a careful and cautious approach. In a case of change of caste by claim of adoption, the consequences are to be kept in view. As has been observed by this Court in Sri Ismile Guru v. Slate of Orissa, (1995) 2 OLR 126 : (AIR 1995 Orissa 267) and Asit Kumar Nayak v. Stale of Orissa, (1996) 1 OLR 32 : (AIR 1996 Orissa 128), importance of proper caste certificates cannot be lost sight of.
4. The preamble to the Constitution promises to secure to every citizen social and economic justice, equality of status and of opportunity assuring the dignity of the individual. The Scheduled Tribes are inhabitants of intractable terrain regions of the country, kept away from the main stream of national life and with their traditional moorings and customary beliefs and practices; they are largely governed by their own customary Code of Conduct regulated from time to time with their own rich cultural heritage and ethos. Scheduled Tribes are a nomadic class of citizens whose habitats are generally hilly regions or forests, and this results in their staying from the main stream of the national life. The Constitution, therefore, enjoins to provide facilities and opportunities for development of their economic and educational standards. Though the social status certificates or caste certificates as they are generally called provide the basis for admission into educational institutions, and forgetting benefits on reservations like entry into service earmarked for the persons belonging to Scheduled Castes and Scheduled Tribes, admission wrongly gained or appointments wrongly obtained on the basis of such certificates have the effect of depriving the genuine Scheduled Castes, Tribes or other backward candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are denied of the benefits for want of caste certificates. The Supreme Court took note of these vital aspects and in Kumari Madhuri Paril v. Additional Commissioner, Tribal Development, AIR 1995 SC 94, has stressed upon the desirability of a Scrutiny Committee and for streamlining the procedure for issuance of a social status certificate.
5. Caste is the group or division into which a Hindu is born. Hindu law recognises four main castes of division. Brarnhana, Kshatria, Vaisya and Sudra. The division or caste is very important, since ceremonies in each caste for marriage, adoption etc. differ from one another, and since the rules regulating the line of succession to properties also differ. The first three of these castes are called 'Dwija', i.e., the twice born, because at a certain age of their lives they are invested with a sacred thread which entitled them to take part in all ceremonies appertaining to the Hindu. It is a social combination, the members of which are enlisted by birth, not by enrolment. Its rules consist partly of resolutions passed from, time to time, but for the most part of usages handed down from generation to generation. The caste is not a religious body though its usages, like all other Hindu usages, are based on religious feelings. In religious matters strictly so-called the members of the caste are guided by their religious preceptors and their spiritual heads. In social matters they lay down their own laws. Caste in a word applied to the distinction of birth tribe, and occupation which separate the Hindus into different groups, and preclude their eating or drinking together, their using the same vessels; their intermarrying, and other relations of social life. A caste may be taken to be a combination of a number of persons governed by a body of usages which differentiate them from the others. The usage may refer to social or religious observances, to drink food, ceremonials, pollution, occupation or marriage. Some of these usages may be common to others also. The caste is invariably known by a distinctive name for identification. It has its own rules for internal management and has also got power of exclusion. A rather usual scenario is emerging rapidly these days. Members of castes, communities, classes jockey for position, try to elbow each other out and vie with one another to be named and recognised as socially and educationally backward classes to qualify for the privilege of the special provision for advancement and the provision for reservation that may be made under Articles 15(4) and 16(4) of the Constitution. The paradox of the system of reservation is that it has engendered a spirit of self-denigration among the people. Nowhere else in the world do castes, classes or communities queue up for the sake of gaining the backward status. Nowhere else in the world is there competition to assert backwardness. The case at hand is a classic example as to how in genuine methods can be adopted to assert backward status.
6. The origin of custom of adoption is lost in antiquity. The ancient Hindu Law recognised twelve kinds of sons of whom five were adopted. The five kinds of adopted sons in early times must have been of very secondary importance, for, on the whole, they were relegated to an inferior rank in the order of sons. Out of the five kinds of adopted sons, only two survive today; namely, the Dattaka form prevalent throughout India and the Kritrima form confined to Mithila and adjoining districts. The primary objects of adoption was to gratify the means of the ancestors by annual offerings and therefore it was considered necessary that the offerer should be as much as possible a reflection of a real descendant and had to look as much like a real son as possible and certainly not be one who would never have been a son. Therefore, the body of rules was evolved out of a phrase of Saunaka that he must be 'the reflection of a son'. The restrictions flowing from this maxim had the effect of eliminating most of the forms of adoption. (See Hindu law by S.V. Gupta, Third Edition at pages 899-900). The whole law of Dattaka adoption is evolved from two important texts and a metaphor. The texts are of Manu and Vasistha and the metaphor that of Saunaka. Manu provided for the identity of an adopted son with the family into which he was adopted. (See Manu Chapter IX, pages 141-142, as translated by Sir W. Jones). The object of an adoption is mixed, being religious and secular. According to Mayne, the recognition of the institution of adoption is early times had been more due to secular reasons than to any religious necessity, and the religious motive was only secondary; but although the secular motive was dominant, the religious motive was undeniable. The religious motive for adoption never altogether excluded the secular motive. (See Maync's Hindu Law and Usage, Twelfth Edition, page 329).
As held by the Supreme Court in AIR 1963 SC 185, V.T.S. Chandrasekhara Mudaliar v. Kulandeivelu Mudaliar, substitution of a son for spiritual reasons is the essence of adoption, and consequent devolution of property is mere accessory to it; the validity of an adoption has to be judged by spiritual rather than temporal considerations; and, devolution of property is only of secondary importance.
In AIR 1954 SC 581, Horn Singh v. Harnam Singh, it was observed by the Supreme Court that under the Hindu Law adoption is primarily a religious act intended to confer spiritual benefit on the adaptor and some of the rules have therefore been held to be mandatory, and compliance with them regarded as a condition of the validity of the adoption. The first important case on the question of adoption was decided by the Privy Council in the case of Amarendra Man Singh v. Sanatan Singh, AIR 1933 PC 155. The Privy Council said :
"Among the Hindus, a peculiar religious significance has attached to the son, through Brahminical influence, although in its origin the custom of adoption was perhaps purely secular. The texts of the Hindus are themselves instinct with this doctrine of religious significance. The foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites."
With those observations it decided the question before it, viz., that of setting the limits to the exercise of the power of a widow to adopt, having regard to the well established doctrine as to the religious efficacy of sonship. In fact the Privy Council in that case regarded the religious motive as dominant and the secular motivator only secondary.
This object is further amplified by certain observations of the Supreme Court. It has been held that an adoption results in changing the course of succession, depriving wife and daughters of their rights, and transferring the properties to comparative strangers or more remote relations. (See AIR 1959 SC 504, Kishori Lal v. Chaltibai). Though undeniably in most of the cases motive is religious, the secular motive is also dominantly present. We are not concerned much with this controversy, and as observed by Mayne it is unsafe to embark upon an enquiry in each case as to whether the motives for a particular adoption were religious or secular and an intermediate view is possible that while an adoption may be a proper act, inspired in many cases by religious motives, courts are concerned with an adoption, only as the exercise of a legal right by certain persons. The Privy Council's decision in Amarendra Mansingh's case, (AIR 1933 PC 155) (supra), has reiterated the well established doctrine as to the religious efficacy of sonship, as the foundation of adoption. The emphasis has been on the absence of a male issue. An adoption may either be made by a man himself or by his widow on his behalf. The adoption is to the male and it is obvious that an unmarried woman cannot adopt. For the purpose of adoption is to ensure spiritual benefit for a man after his death by offering of oblations and rice and libations of water to the manes periodically. Woman having no spiritual needs to be satisfied, was not allowed to adopt for herself. But in either case it is a condition precedent for a valid adoption that he should be without any male issue living at the time of adoption.
7. Regulation 40 deals with the procedure how change of name or surname can be effected. The purport is indicated and the procedure also has been laid down. The provision reads as follows :
"40. Change of Name and Surname :
No change in the name or surname of any candidate who has or who is registered to appear at the High School Certificate Examination shall be allowed except in cases of clerical error or printing mistake. No application for correction shall be entertained unless it is sent through the head of the institution concerned. The Secretary shall make necessary correction in the Board's records after the correction is approved by the Examination Committee. The original certificate shall be cancelled and retained when a corrected certificate is issued."
8. On the background facts as highlighted above, it is to be noticed that validity of adoption has not been challenged. Further the question whether there was a valid adoption cannot be adjudicated in a writ application as factual adjudication would be necessary. Merely because there was some difference of opinion between the adoptive father and the adopted child that cannot be a ground to nullify the deed of adoption. When a child is adopted, the link with the original family gets severed. Mere difference of opinion does not bring out severance of the link. That being the position, no direction can be given to the Board to effect the change as prayed for. Another factual aspect is noticed to the effect that the certificate in respect of the H.S.C. Examination was issued in December, 1991 and for the first time in 1995 the suit was filed. The purpose appears to have the benefit of rehabilitation assistance scheme. In the aforesaid premises, we are not inclined to give a direction to the Board authorities to effect the change as prayed for. It is for the Board authorities to dispose of the matter in accordance with law for which we express no opinion on merit.
The writ application is not entertained, but in the circumstances without any order as to costs.
P.K. Mohanty, J.
9. I agree.