2005 Supreme(SC) 155

2005(1) Supreme 617
Supreme Court of India
(From Andhra Pradesh High Court)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
Sobha Hymavathi Devi —Appellant
versus
Setti Gangadhara Swamy and Ors. —Respondents
Civil Appeal Nos. 4413-4414 of 2003
Decided on 28-1-2005
Counsel for the Parties :
For the Appellant : Ms. K. Amareswari, Sr. Advocate, Guntur Prabhakar, Ms. T. Anamika and B. Ramamurthy, Advocates.
For the Respondents : K. Radhakrishnan, Sr. Advocate, S. Udaya K. Sagar, Ms. Bina Madhavan, Advocates, Vinayagan, Advocate for M/s. Lawyer’s Knit & Co., Advocates.­
For the Respondent No. 5 : T.V. Ratnam, Advocate (NP), Advocate.

Important pointA candidate cannot claim the right to contest a seat reserved for a Scheduled Tribe in terms of Article 332 of the Constitution of India merely by virtue of her marriage to a person belonging to a Scheduled Tribe.

Headnote:(i) Representation of the People Act, 1951—Section 81 rw/s 100, 116A —Constitution of India—Article 332—Qualification to contest the election from a constituency reserved for a Scheduled Tribe—Determination of caste of a candidate—Election of appellant from S.T. Assembly constituency in Vizianagaram District of Andhra Pradesh to legislative assembly—Challenged on ground that appellant was not qualified to contest from the constituency reserved for Scheduled Tribe candidate as she did not belong to a Scheduled Tribe—According to election petitioner, appellant belonged to a forward community, Patnaik Sistu Karnam—Appellant’s mother ‘S’ belonging to Bhagatha Community which was a notified Scheduled Tribe—‘S’ allegedly married one ‘M’ belonging to Patnaik Sistu Karnam caste and in that wedlock, appellant and five other children were born—Appellant admitted that she was daughter of ‘S’ through ‘M’—She pleaded that she and five of her siblings were illegitimate children of ‘M’ as there was no marriage between ‘S’ and ‘M’ though there was intimacy and cohabitation—Finding recorded by High Court that ‘M’ and ‘S’ were married and six children including appellant were born—Appellant was a legitimate daughter of that union—Appellant assigned the caste of her father, Sistu Karnam community—She was not qualified to contest election to constituency reserved for Scheduled Tribe.

       Held : The trial court, on a proper appreciation of the evidence, in the light of the circumstances disclosed and the admissions made by these witnesses, came to the conclusion that the plea of absence of marriage between Murahari Rao and Simhachalam could not be accepted in the light of the evidence available and in the light of the long cohabitation and the birth of six children including the appellant and the presumption arising therefrom. We were taken elaborately through the judgment of the High Court, the pleadings and the evidence of the witnesses examined on either side with particular reference to the evidence of the appellant as RW-1, her father RW-2, her mother, RW-7 and RW-4, 8 and 10, Kalavathi, her brother and her father. On going through the evidence of these witnesses, we are inclined to agree with the conclusion of the High Court that there are enough admissions in the evidence of these witnesses which clearly go to prove that Murahari Rao and Simhachalam, the parents of the appellant, long cohabited together, begot children and were recognized as husband and wife by the community. This especially in the context of the documentary evidence adduced in the High Court which were again brought to our notice by learned counsel for the respondents. In short, we find that the finding of the High Court that Murahari Rao and Simhachalam were married and the six children including the appellant were born in that wedlock and that it was not possible to hold that there was only a concubinage and the six children including the appellant were born out of that relationship and out of wedlock is unexceptionable. Similarly, we also do not find much merit in the challenge to the finding that the appellant had failed to prove that Simhachalam had earlier married Ladda Appala Swamy or that there was any subsisting relationship between Simhachalam and Ladda Appala Swamy which could stand in the way of a valid marriage between Murahari Rao and Simhachalam. Equally, we find that the finding rendered by the High Court that the appellant had failed to show that her father Murahari Rao had earlier married Kalavathi, his sister’s daughter, is also fully justified especially if one were to read the evidence of Kalavathi, her brother, her father and RW-9, examined on behalf of the appellant. (Paras 4 and 5)

       The conclusion that there was a valid marriage between Murahari Rao, the father of the appellant and Simhachalam, the mother of the appellant, stands strengthened by the presumption available in law arising out of the long cohabitation of Murahari Rao and Simhachalam. (Para 6)

       The claim of the appellant that she was being brought up and was being recognized as a member belonging to the Bhagatha Community, cannot be accepted in the face of the evidence discussed by the High Court including the documentary evidence relied on by it. The document Exh. 10 and the entry therein marked as Exh. X-11 relating to the appellant, show her caste as Sistu Karnam and not as Bhagatha. This entry was at an undisputed point of time. Moreover, the evidence also shows that she was always being educated at Visakhapatnam and she was never living as a tribal in Bhimavaram village to which her mother’s family belongs. There is no reason for us to differ from the conclusion of the High Court on this aspect. (Para 8)

       Before we part with this case, we wish to express our dismay at the extent to which a person could go to sustain her seat in the legislature. The appellant brands her five siblings and herself as bastards, and her mother a concubine. We desist from making any further observations on this aspect. (Para 12)

       (ii) Representation of the People Act, 1951—Article 81 rw/s 100, 116A —Constitution of India—Articles 330, 332, 14, 15(4), 16(4)—Reservation of constituency for a Scheduled Tribe—Reservation would benefit only those who belong to a Scheduled Caste or Scheduled Tribe and not those who claim to acquire the status by marriage—A non tribal who marries a tribal cannot claim to contest a seat reserved for tribals—Appellant assigned the caste of her father, Patnaik Sistu Karnam married a tribal belonging to Bhagatha Community—Whether on basis of this marriage, she must be taken to have acquired membership in the community of her husband and consequently treated as a member of that community—(No).

       Held : First of all, we must point out that the High Court, in our view, has rightly held that there was nothing to show that the marriage of the appellant with Appala Raju took place in the customary mode followed by the Bhagatha Community. On the other hand, as noticed by the High Court, the available evidence tends to indicate that the marriage was more in the form followed by Sistu Karnams, the community to which her father belonged. Secondly, as noticed by the High Court, there is nothing to show that the appellant was accepted by the Bhagatha Community of Bhimavaram as a member of that community. As discussed by the High Court based on the evidence in the case, the indication available was that the appellant hardly resided in Bhimavaram village to which her maternal grand-father belonged and there was no occasion for that community to treat her as a member of that community. There is also nothing to show that the appellant followed the way of life of that community. (Para 9)

       There is nothing to show that the marriage of the appellant with Appala Raju was sanctioned or approved by the elders of the Bhagatha Community or the concerned Panchayat or was in tribal form or that the formalities attending such a tribal marriage were observed and the marriage was performed after obtaining the approval of the elders of the tribe. Even otherwise, we have difficulty in accepting the position that a non-tribal who marries a tribal could claim to contest a seat reserved for tribals. Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. (Para 10)

       The recognition of a lady as a member of a backward community in view of her marriage would not be relevant for the purpose of entitlement to reservation under Article 16(4) of the Constitution for the reason that she as a member of the forward caste, had an advantageous start in life and a marriage with a male belonging to a backward class would not entitle her to the facility of reservation given to a backward community. The High Court has applied this decision to a seat reserved in an election in terms of Article 332 of the Constitution. We see no reason why the principle relating to reservation under Articles 15(4) and 16(4) laid down by this Court should not be extended to the constitutional reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly. The said reservations are also constitutional reservations intending to benefit the really underprivileged and not those who come to the class by way of marriage. (Para 10)

       On a consideration of the relevant aspects, we are of the view that whether it be a reservation under Articles 15(4) or 16(4) or 330 and 332, the said reservation would benefit only those who belong to a Scheduled Caste or Scheduled Tribe and not those who claim to acquire the status by marriage, like the appellant in this case. Thus, in our view, the High Court was fully justified in coming to the conclusion that the appellant could not claim the right to contest a seat reserved for a Scheduled Tribe in terms of Article 332 of the Constitution of India merely by virtue of her marriage to a person belonging to a Scheduled Tribe. (Para 10)

       (iii) Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificate Act, 1993—Section 3—Certificate relating to elections—Confined in its validity to elections to local authorities and cooperative institutions—It does not embrace an election to Legislative Assembly or to the Parliament—High Court, exercising jurisdiction under the Representation of the People Act in an Election Petition is not precluded from going into the question of status of a candidate or proceeding to make an independent enquiry into the question in spite of the production of a certificate under the Act—Such a certificate could be used in evidence—Its evidentiary value can be assessed in the light of other evidence let in, in an Election ­Petition. (Para 11)