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2010 Supreme(Bom) 114
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE B.H. MARLAPALLE, THE HONOURABLE MR. JUSTICE A.S. OKA & THE HONOURABLE MR. JUSTICE R.Y. GANOO
Rajendra Shrivastava Appellant
Versus
The State of Maharashtra Respondent
CRIMINAL APPLICATION NO.2347 OF 2009
Decided on : 22-01-2010
Advocate Appeared:
For the Applicant:A.M. Sarogi, Advocate.
For the Respondents:Parvez Ubharay, Advocate, Ms. S.D.Shinde, APP.
Headnote:Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 3(1)(ii)(x) and 18 - Protection of Civil Rights Act, 1955, Section 7(1)(d) - Whether a SC/ST marrying forward class spouse facing atrocities on account of caste - It is required to realize conception of a caste and form in which a caste is accepted - Honorable Supreme Court in its conclusion in 1992 DGLS 768 has remarked that caste is nonentity but a collective division in society - One acquires birth in it and its membership is automatic - Even if one withdraws to follow its activity, he remains to be constituent of it for ends of marriage death and supplementary ceremonies marks still vestiges - Para are of significance for inspection in 1997 (Supp) Bom CR (SC) 160 and cannot be read as a fraction laying down that on wedding, wife gets automatically transplant - Constitution bench holds caste is acquired by birth and can not be changed by marriage or by adoption. - The Apex Court held that a candidate born in forward caste who is transplanted in a family of backward caste by adoption or by marriage does not become eligible to benefits of reservation under the Constitution. The observations made in paragraph 31 in the case of Valsamma (supra) are not to the effect that a woman born in a forward caste, on her marriage with a person belonging to a Scheduled Caste or a Scheduled Tribe, is automatically transplanted in the caste of her husband by virtue of her marriage. In fact, the ratio of the said decision is set out in paragraph 34 of the judgment.
If the interpretation sought to be put by the counsel appearing for the applicant is accepted, it will defeat the very object of enacting the said Act. It will defeat the innovative steps taken by the framers of our Constitution for protecting the persons belonging to Scheduled Castes and Scheduled Tribes who have suffered for generations.
Thus, the question formulated by the learned Single Judge will have to be answered in the affirmative. The question formulated by Court in paragraph one will have to be answered in the negative. A woman who is born into a Scheduled Caste or a Scheduled Tribe, on marriage with a person belonging to a forward caste, is not automatically transplanted into the caste of husband by virtue of her marriage and, therefore, she cannot be said to belong to her husband’s caste.
Key Points: - A woman born into a Scheduled Caste or Scheduled Tribe does not cease to belong to her original caste upon marrying a man from a forward caste (!) (!) . - Caste is acquired by birth and cannot be changed by marriage or adoption (!) (!) (!) . - The object of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is to prevent atrocities against members of these communities (!) . - Accepting the interpretation that a wife's caste merges with her husband's upon marriage would defeat the purpose of the Atrocities Act and the Constitution's protective measures for SC/ST individuals (!) (!) . - The Supreme Court in Valsamma Paul (supra) did not hold that a woman born in a forward caste automatically becomes transplanted into her husband's caste upon marriage to a Scheduled Caste or Scheduled Tribe person (!) . - The ratio of the Valsamma Paul decision is that acquiring the status of a Scheduled Caste or Scheduled Tribe through voluntary mobility (like marriage) would be a fraud on the Constitution and frustrate its policies (!) (!) . - A person born into a Scheduled Caste or Scheduled Tribe suffers disadvantages due to their caste by birth, and this suffering is not erased by marriage to a forward caste individual (!) . - The label attached to a person born into a Scheduled Caste or Scheduled Tribe continues despite marriage (!) . - The question referred to the larger bench was whether an offence under the Atrocities Act can be registered if a SC/ST woman marrying a forward caste man is abused in the name of her caste (!) . - The court answered the referred question in the affirmative, meaning an offence can be registered (!) .
What is the legal status of a woman belonging to a Scheduled Caste or Scheduled Tribe who marries a man from a forward caste, concerning her caste identity?
What is the impact of marriage on a woman's caste identity acquired by birth from a Scheduled Caste or Scheduled Tribe?
Can an offence under the Atrocities Act be registered and investigated if a woman belonging to a Scheduled Caste/Tribe, after marrying a person from a forward caste, is abused in the name of her caste?
A.S. OKA, J.
The Learned Single Judge (Coram: D.B.Bhosale, J) by his order dated 30th June 2009 has referred the following question for determination by a larger bench:
“If a lady, belonging to the schedule caste/schedule tribe, marrying a person belonging to forward caste, is abused in the name of her caste by a member of public or by her husband or his relatives, whether an offence under the provisions of Atrocities Act can be registered and investigated against such person/s.”
2. The applicant has filed the present application under section 438 of the Code of Criminal Procedure, 1973. The applicant is the husband of the complainant. The complainant lodged a First Information Report No.125 of 2008 on 8th April 2008. The allegation is of commission of offences under sections and 498A, 406, 494, 34 of the Indian Penal Code read with the provisions of section 3(1)(ii) and section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the said Act”). An offence under section 7(1)(d) of the Protection of Civil Rights Act, 1955 (hereinafter referred to as “the said Act of 1955”) was also alleged in the said first information report. The offence was registered against the applicant, his brother and his sister. By birth the complainant belongs to a scheduled caste. The caste of the applicant is “kayastha” which is admittedly neither a scheduled caste nor a scheduled tribe. An application for anticipatory bail was filed by the applicant’s sister. The said application was decided by this Court by order dated 2nd March 2009. The submission before this Court was that after her marriage, the caste of the complainant had merged with the caste of the applicant and that on marriage of the Complainant, she ceased to belong to a scheduled caste and therefore, the bar created by section 18 of the said Act of 1989 will not apply. This Court (Coram:Kanade, J) accepted the said contention and held that the application for grant of anticipatory bail was maintainable. This court observed,
“In my view, prima facie provisions of Atrocities Act and Protection of Civil Rights Act cannot be made applicable in the present case since the complainant’s caste merged with the caste of her husband and therefore, in my view, a complaint could not have been filed that she was abused in the name of her caste after her marriage and that it amounted to an offence under the Atrocities Act or under the provisions of Civil Rights Act. Prima facie, therefore, provisions of Section 12 of the Atrocities Act would not be attracted and the present application for anticipatory bail would be maintainable.” (Emphasis added)
3. When the present application came up before another learned single Judge (Coram: D.B. Bhosale, J), he was of the view that a person acquires caste by birth and not by marriage. In paragraphs 10 and 11 of the order dated 30th June 2009, the learned Judge observed thus:
“10 It is true that on marriage the wife becomes an integral part of her husband’s marital home entitle to equal status as a member of the family. Therefore, a lady, on marriage becomes a member of the family and thereby also becomes a member of the caste to which she moved. However, that does not mean that she looses her recognition as a person belonging to a backward community which she acquired by birth. More so, when it is evident from the conduct or the treatment given to her by her husband and/or his family members, or a member of the public for that matter. If the husband or his family members or public at large after marriage continue to treat her as a member of the caste which she acquired by birth and tease or abuse her in the name of her caste, in my opinion, the provisions of the Atrocities Act would stand attracted. In such eventuality, the husband or his family members or a member of the public cannot be allowed to raise a defense or take a stand that by virtue of the marriage she became a memb
