JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for a direction to the respondents the petitioner as a Scheduled Caste and her certificate dated 06.08.1992 to be valid certificate and she should be permitted to continue as a Scheduled Caste Jatav caste and she should also be permitted to have all the benefits belonging to the Scheduled Caste.
2. The facts and circumstances giving rise to this case are that, Claims herself to be a Jain by birth. However, she got married with one Pal Singh (Jatav - Scheduled Caste) and, therefore, she should be permitted to have the benefits belonging to the Scheduled Caste. Her nomination paper was not accepted in the earlier elections in 1992 for reserved constituency being not a Scheduled Caste by birth. Hence this petition.
3. Shri Tejpal learned counsel appearing for the petitioner submits that the petitioner was undoubtedly a Jain and got married with a Scheduled Caste. Once she had been accepted by the people of the Scheduled Caste and by marriage, she stood transplanted into that caste, she cannot be deprived of the benefits reserved for that community. Thus the petition deserves to be allowed.
4. 0n the other hand Shri S.N. Singh learned Additional Chief has submitted that such a relief cannot be granted as she is not a scheduled caste by birth, Such transplantation may be a, fraud Upon the Constitution to derisive: the deserving persons from their legitimate claim the reservation has been provided by the Constitution only for those who have faced social economic and backwardness and remained in the disadvantageous position because of a particular caste. Thus, the petition is liable to be rejected.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
6. The question as to whether a person can get a status or avail the privilege conferred upon a particular caste/community/tripe by conversion, adoption or getting transplanted into the said tribe or caste by marriage, is no more res integra, as it has been considered from time to time by the Courts.
7.IN V.V. Giri. v. D. Suri Dora and Ors., AIR 1959 SC 1318, a constitution Bench of the Hon'ble Apex Court considered a case where a member of Scheduled Caste became a Kshatriya. The question arose as to whether he was entitled for contesting the election from the reserved seat meant for Schedule Caste candidate. The majority of the Hon'ble Judges in that case held that the caste status of a person in the Said context would necessarily have to be determined in the light of the recognition received! by him from the members of the caste/community into which he seeks an entry. More so, a unilateral art of this character on "the part of the person seeking entry in any other caste cannot easily be taken to prove that his acceptance stood established. Thus, his right to avail the benefits meant for Schedule Caste was also recognized. However, the minority view had been, that birth :as the sole criteria of the caste is a much later development and caste became rigid and hereditary when vocations became hereditary. Caste was nothing but; division of labour. There was a high authority to support the view that in Hinduism caste was dependant upon actions and not on birth. Therefore, once by action, the respondent therein had become Kshatriya, he was no longer a member of Scheduled Caste or Tribe and on that ground, he was not entitled to contest the election from the reserved constituency.
8. In S. Rajagopal v. C.M. Armugam and Ors. AIR 1969 SC 101, the Hon'ble Supreme Court considered the case where a person was priginaliy born as Dravida Hindu but he got himself converted as Christian, but subsequently, contested the election from the constituency reserved for scheduled caste. The Court held that ordinarily the membership of a caste under the Hindu religion is acquired by birth. Where the membership of a caste can be acquired by Conversion to Hinduism or after re-conversion to Hinduism was left open on the ground that he re-converted himself after embracing Christianity and he could become a member of the said caste after he started professing the Hindu religion. The other side could not lead evidence to prove otherwise.
9. In N.E. Horo v. Smt. Jahanara Jaipal Singh, AIR 1972 SC 1840 the reason of the petitioner a Sapinda of her husband by marriage, she could claim the benefit of being appointed to a post reserved for Backward Caste or tribe. It was contended therein that where non-tribal lady had married to a Munda tribe strictly following, the tribes customs and she had been accepted by the elders of the tribe as a member of that tribe, it was sufficient to contest for a seat reserved for Scheduled Tribes. The, Court held that once the marriage of a Munda male with a non-Munda female is approved or sanctioned by the Parana Panehayat, she became a member of the community and could contest for a reserved seat as she had been assimilated in that community.the Hon'ble Court rejected the contention that a person can be a Munda only by birth on the ground that no rigid custom of endogamy could be established. The expression "Tribes" was given a liberal interpretation holding that it included even member of the Munda tribe by marriage and not by birth alone. However, such a right was recognized because of the custom prevailing in the Tribe.
10. In Mrs. Urmila Ginda v. Union of India and Ors., AIR 1975 Delhi 115, the Delhi High Court rejected the claim of the petitioner therein that she was entitled, to benefit and privilege conferred upon the reserved, category because of her to a rnale member of the said category on the ground that she was a high caste Hindu and had not been subject to any social or educational backwardness, therefore, she could not take the benefit of the caste of! her husband merely because of heir marriage Permitting such a person to compete for a reserved post would defeat the very provisions made by the State for such socially, economically and educationally Backward Classes.
11. However, In Khazan Singh v. Union of India and Ors., AIR 1980 Delhi 60, the Delhi High Court considered a case where a boy of a Jat community was adopted by a Schedule Caste. The Court held that by virtue of the provisions of the Hindu Adoptions and Maintenance Act, 1956, such an adoptee ipso factor acquired caste of adoptive father and for all other purpose got all the ties with such parents and he was entitled for all benefits of the reserved category. In Andhra Hoiwa Society v. Union of India 1986 (2) APLJ(SN) 12, the Pradesh High Court held that the close exodus of one class of citizens as a tribe by names of synonymity was impermissible and they were, riot entided to social status as there had been an attempt of transplant tiph of forward Class to Backward Class. Instead of integrated forward marriage, it was a retrograde marriage from forward to backward status to claim reservation. Similar view has been taken in P. Mallikharjunadev v. Government of Andhra Pradesh, (1989) 3 Andh LT 5Q A.S. Sailaja v. Principal, Kurnool Medical College, Kurnool and Ors., AIR 1986, AP 209; D. Neelima v. Dean of P.G. Studies, Andhra Pradesh Agricultural University and Ors.,AlR 1993) AP 229; and N. Bhuvaneshwar Rao v. Principal Osmania Medical College, Hyderabad, AIR 1986 AP 196.
12. The Karnataka High Court has reiterated the similar view in K. Shantha Kumar v. State of Mysore, (1971) 1 Mys LJ 21; Nataraja v. Selection Committee, (1972) 1 Mys LJ 226 and R. Srinivasa v. Chairman, Selection Committee, AIR 1981 Kant 86 The Bombay High Court had taken the same view in Vaishali v. Union of India, (1978) 80 Bom LR 182 wherein it. was categorically held that an Woman belonging to upper caste married to Scheduled Caste man was not entitled to the reservation.benefit.
13. In Valsamma Paul v. Kochin University and Ors., AIR 1996 SC 1011, the Hon'ble Supreme Court considered the issue at length and denied the benefit of reservation to a woman of a high caste married to the man of reserved category observing, as Under:-
"In Murlidhar Dayandeo Kesekar v. Vishwanath andu Barde, 1995 Supp (2) SCC 549 aria R. Chandevarappa v. State of Karnataka, (1995) 6 SCC 309, this Court held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15(3), 46 and 39 to provide, them opportunities. Thus, education, employment and economic empowerment are some of the programmes the State has Devolved and also provided reservation in admission into educational institutions, or in case of other; economic benefits under Article 15(4) and 46, or in appointment to an office or a post under the State under Article 16(4) Therefore, when a member is transplanted into the Dalits, Tribes and O.B.Cs., he/she must of necessity: also! have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in Forward Caste and had march of advantageous life but it is transplanted in Backward Caste by adoption or marriage or conversion does not become eligible to the benefit of reservation, either under Article 15(4) or 16(4), as the, case may be Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution."
14. While deciding the said case, the Hon'ble Supreme Court also considered number of its earlier judgments including Kailash v. Sonkar, AIR 1984 SC 600 Principal, Guntur Medical College v. Y. Mohan Rao, AIR . 1976 SC 1904. In later case, the parent of Mohan Rao initially belonging to Scheduled Caste but later on converted into Christianity. On re-conversior, Mohan Rao was accepted to be a member of the" Scheduled Caste:and, therefore, his admission as a reserved'"category candidate-was upheld by the Hon'ble Supreme Court.
15. In C.M. Arumugarn v. S. Rajgopal and. Ors., AIR 1976 SC 939 the Hon'ble 600 Supreme Court held that for attaining/acquiring such a status the person has to prove that he/she has been duly accepted by the said community,
16. In State of Kerala and Anr. v. Chandramohanan, AIR 2004 SC 1672 the question arosce as to whether a person on Conversion to another religion Continues to remain a member pf his tribe, the Apex Court held that a member of tribe: despite his change In religion may remain a member of the tribe if he continues to follow the tribal traits and customs, and the question whether the person remained a member of a tribe after conversion and continued to follow the customs and traditions of the tribe must: be determined at trial.
17. In Sobha Hymavathi Devi v. Setti Gangadhara Swami and Ors., (2005) 2 SCC 244. the Hon'ble Supreme Court reconsidered the judgment of N.E. Hero's case (supra) and partly overruled it observing that the same had been a case of acceptance by the tribes and for fulfilment of required formalities such a tribal marriage. More so, marriage had been performed by obtaining approval of the elders of the tribe. The Court held that non tribal person under the cover of marriage can not be permitted to contest a seat reserved for tribes as it would the very object of such a reservation. Status is conferred by birth alone a by adoption,' conversion or marriage. Any reservation provided under Article 15(4), 16(4) 330 and 332, being ;Constitutional reservation, cannot be permitted to be availed I by a person changing his status by adoption, conversion or marriage etc. Thus, the Hon'ble Apex Court categorically held that the recognition or an woman as a member of a backward community merely in view of her marriage would not be relevant for the purpose of entitlement to reservation under any of the provisions of the Constitution. The Apex Court not only considered, the earlier judgment in Valasiwami Paul (supra) but also the judgments in Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry, 1865 (10) MIA 279 and Lulloobhoy, Bappobhoy Cassidass Moolchand v. Kassibai, ILR 5 Bom' 110 wherein it had been held that a woman on marriage becomes a member of the family of her husband and there by she becomes a member of the caste to which she had moved, therefore, she was i entitled to the benefits conferred upon the caste to which she gets herself transplanted. The Apex Court: did not accept the law laid down therein as it would defeat the provisions providing for the benefits for members of the weaker section of the, Society. The Hon'ble Court held as under:-
even otherwise, in the absence of evidence on the relevant aspects regarding marriage in tribal form and acceptance by the community, the decision in Horo (Supra) cannot come to the rescue of the appellant. On a consideration of the relevant aspects, we are of the view that whether it be a reservation under Article 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 end not those who claim to acquire the, status by marriage, Hike 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 content a seat reserved for a Scheduled Tribe in terms of Article 332 of the Constitution of India merely by virtue of he marriage to a person belonging to a Scheduled Tribe,"
18. In Sandhya Thakur v. Vimla Devi Kushwaha, (2005); 2 SCC 731 a similar view has been taken by the Hon'ble Apex Court holding that the claim of a woman born to a high caste married to a man of Backward Class cannot be apceptecd as she was not born in a disadvantageous position i.e. Backward Class/ community and she would not be entitled, to contest a seat reserved for a Backward Class merely on the basis of her marriage to a male of that community.
19. One has to prove regarding the prevalence of a custom for a long time and recognised by the Courts and has to discharge the burden of proof (Vide Fazle Rab v. Mohd Yakeen, (2002) 2 SCC 652).
20. Thus in view of the above, the law as it stands today can be summarised that a woman of a high caste cannot acquire the status of the castle of her husband merely by marriage. In the event such a woman seeks such a declaration of status, the same can only be done by adducing evidence on such question of facts, that are required to be proved for establishing the clam. Since the writ Court is ill equipped, to entertain such claims, and since the material disclosed by the petitioner in the present proceedings would require further supportive proof to establish their probative! value, I therefore the present writ petition would not be adjudging the, claim of the petitioner. Thus, in our done by approaching the civil court! or Such appropriate forum, which the law permits, Accordingly, we do not find the present petition worth entertaining hold the same to be not a fit case for interference under Article 226 of the Constitution of India.
21. Petition dismissed. No order as to costs.