In inter-caste marriages, offspring’s caste is determined by factual upbringing in the mother’s Scheduled Tribe community, not presumed from the father, and must not be denied due to procedural unfairness.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Ms. G. Goswami, the learned counsel appearing on behalf of the petitioners. Also heard Mr. R. Dhar, the learned counsel appearing on behalf of the respondent No. 1 to 7 as well as Mr. K.N. Choudhury, the learned senior counsel assisted by Mr. K.P. Pathak, the learned counsel appearing on behalf of the respondent No. 8.

2. The instant writ petition has been filed by the petitioners challenging the order bearing No. KAV TAD/BC/790/2020/213 dated 29.09.2021 of the State Level Caste Scrutiny Committee, Assam (for short, referred to as “the impugned order”) whereby the State Level Scrutiny Committee (for short “the SLSC”) held that the petitioner No. 1 does not belong to the Scheduled Tribe community of Assam. For deciding the legality and validity of the impugned order, this Court finds it relevant to briefly state the facts leading to the instant writ petition.

3. The Petitioner No. 2 is the mother of the petitioner No. 1 and admittedly belongs to the Miri Tribe which is a recognized Scheduled Tribe (Plains) under the Constitution (Scheduled Tribes) Order, 1950 (for short “Order of 1950”). The petitioner No. 2 was married to one Neelutppal Lahan (since deceased). Out of the said wedlock, the petitioner No. 1 was born on 10.01.2006. The petitioner No. 2 along with Late Neelutppal Lahan had another child, namely, Leander Ayang Lahan who was born on 27.09.2010. Unfortunately, Neelutppal Lahan expired on 04.10.2012. At that relevant point of time, the petitioner No. 1 was 6 years old and her brother was just 2 years old. The petitioner No. 2 thereafter raised both the children. The names of the two children were changed in the year 2015 in as much as the petitioner No. 1 earlier was known as Miss Divyana Aappun Lahon and presently is known as Miss Divyan A. Lahon and her brother was known as Master Leander Aayang Lahon and presently is known as Master Aayang L. Lahan.

4. On 04.08.2020, the petitioner No. 2 applied to the Deputy Commissioner, Kamrup (Metro) for issuance of caste certificate in the name of her two children, i.e. the petitioner No. 1 and her brother along with all necessary documents. The Office of the Deputy Commissioner, Kamrup (Metro) issued the Caste Certificates in the name of both the children of the petitioner No. 2 on 21.08.2020 bearing Caste Certificate Nos. 758/566 and 757/566.

5. At this stage, this Court finds it very relevant to take note of an important development which took place on 31.12.2019. On 03.01.2020, an FIR was lodged before the All Women Police Station at Guwahati wherein it was alleged that on 31.12.2019, the respondent No. 8 herein had sexually molested the petitioner No. 1 at his residence as well as in the hotel room wherein the petitioner No. 2 along with her children were staying. On the basis of the said FIR being filed, a case was registered against the respondent No. 8 being All Women P.S. Case No. 5/2020 initially under Section 354 of the Indian Penal Code (IPC) read with Section 10 of the Protection of Children from Sexual Offence Act, 2012 (POCSO). Subsequently, a prayer was made by the Investigating Officer before the learned Court of the Sub-Divisional Judicial Magistrate No. 1, Kamrup (Metro) at Guwahati whereupon an order was passed on 07.01.2020 thereby allowing addition of Section 354(A) of the Indian Penal Code and Section 3(1) (xi) (W) (i) (ii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, ‘the Act of 1989’).

6. The respondent No. 8 thereupon challenged the Caste Certificate issued to the children of the petitioner No. 2 by issuance of a legal notice to the Deputy Commissioner, Kamrup (Metro). The legal notice was issued on 24.08.2020. It seems that this development had triggered the dispute involved in the present proceedings. Thereupon, vide an order dated 22.09.2020, the Caste Certificates so issued to the petitioner No. 1 and her brother were cancelled by the Deputy Commissioner, Kamrup (Metro