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2016 DIGILAW 2584 (HP)

Sreshta Devi v. State of Himachal Pradesh

2016-12-06

TARLOK SINGH CHAUHAN

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Tarlok Singh Chauhan, J. The seminal issue which arises for consideration in this writ petition is: as to whether the children of a tribal woman, who admittedly is married to non-tribal, can claim the status of Scheduled Tribe solely on the basis of their having resided for sometime with the mother (petitioner) in the tribal area, that too, not on account of compulsion, but on account of the petitioner being posted there while working as a Teacher in the Education Department. 2. The bare minimal facts, as are necessary for deciding the controversy in issue, are that the petitioner is alleged to be the only surviving daughter of late Sh. Jodh Singh, who belonged to the Scheduled Tribe category. The petitioner performed marriage with Madan Kumar, who admittedly, was non-tribal. The petitioner is admittedly working in the Education Department and chose to stay back at her native place while being posted there, when her husband was employed and posted elsewhere in SSB. 3. The petitioner has assailed the decision passed by the Sub Divisional Magistrate, Bharmour rejecting the application for the grant of tribal certificate to her children on the ground that he has not at all taken into consideration that not only did the children of the petitioner reside with her at her house at Ullansa, but even the Gadi community there had accepted these offspring in their folds and had unanimously passed a resolution in favour of the claim being raised by the petitioner. 4. The respondents have filed reply wherein it has been stated that the inquiry into the status of the community of the petitioner was got conducted through Tehsildar, Chamba, who found that in the year 1985, the petitioner had solemnized inter-caste marriage with Madan Kumar son of Prem Lal, resident of village and Post Office Mohal Mangla, Tehsil and District Chamba. He also found that Madan belonged to Rajput/Kashav caste, whereas the petitioner belonged to Scheduled Tribe caste (Gaddi Hali). Madan Kumar was living at Mohalla Obri, Sultanpur, Chamba on the property, which had been purchased by him, whereas the petitioner was reported to be a Government servant and was working as a Teacher in Government Primary School, Udaipur and presently residing at Mohalla Obri, Tehsil and District Chamba with her husband. Madan Kumar was living at Mohalla Obri, Sultanpur, Chamba on the property, which had been purchased by him, whereas the petitioner was reported to be a Government servant and was working as a Teacher in Government Primary School, Udaipur and presently residing at Mohalla Obri, Tehsil and District Chamba with her husband. It was also found that the children of the petitioner had not suffered any disabilities socially, economically and educationally either individually or cumulatively as the children remained with their mother in the tribal area only till their primary education and subsequently all these children got middle and higher education in non-tribal area while residing with their parents in Mohalla Obri, Chamba Town and were, therefore, not entitled to claim the status of Scheduled Tribe. 5. I have heard the learned counsel for the parties and have perused the material placed on record. 6. At the outset, it may be observed that the petitioner has referred to various texts and judgments in support of the claim that her children are entitled to be considered as Scheduled Tribe. 7. However, I do not feel the necessity to go into the text and the judgments so relied upon, as the question posed in this petitioner has been elaborately and lucidly dealt with by the Hon’ble Supreme Court in Rameshbhai Dabhai Naika vs. State of Gujarat and others, (2012) 3 SCC 400 , wherein it was observed as under: “(54) In view of the analysis of the earlier decisions and the discussion made above, the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an intercaste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. (55). In an inter caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. (55). In an inter caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well.” 8. The Hon’ble Supreme Court made a incisive study of the entire case law on the subject and it was thereafter held that any inter-caste marriage or a marriage between a tribal and a non- tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an inter-caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Caste/Scheduled Tribe. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Caste/Scheduled Tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well. 9. As already observed earlier, it was on account of petitioner being an employee in the Education Department and having been posted in Government Primary School, Udaipur that she of her own volition and free will chose to remain in the tribal area in the house of her parents’ and further it was only on this account that the children of the petitioner got the primary education in Government Primary School, Ullansa. There was no compulsion or even a pressing need for the petitioner to reside in her residential house and this choice was obviously based upon the convenience of the petitioner. 10. It would be noticed that on the transfer of the petitioner to Government Primary School, Gajnui, Kiani and Mehla Block-I/II, all her children came and resided with their parents in the property purchased by them in the Chamba town itself. It is thereafter at Chamba that the children then received their middle and higher education. Therefore, in such circumstances, the certificates produced by the petitioner in support of the claim that her children are recognized as members of the tribal community are of no avail. 11. Learned counsel for the petitioner would then heavily rely upon the revenue record to claim that the children of the petitioner having been born and brought up and accepted by the tribal Gadi community at Ullansa Panchayat have to be recognized as Schedule Tribe. 12. It has to be borne in mind that it is on account of extreme socially and economic backwardness arising out of traditional practices of untouchability that is normally considered as a criteria for including a community in the list of Scheduled Caste and Scheduled Tribe. 12. It has to be borne in mind that it is on account of extreme socially and economic backwardness arising out of traditional practices of untouchability that is normally considered as a criteria for including a community in the list of Scheduled Caste and Scheduled Tribe. However, it does not mean that where a woman belongs to Schedule Tribe and decides to reside for sometime in tribal area with her parents more out of convenience than out of necessity or compulsion, she cannot be heard to claim that her children have been made to face disadvantages as once faced by her after birth. 13. Even otherwise, it has come on record that as per the local custom of the tribal area only the male members of the family has right to inherit the property. Female members of the family can acquire the right to inherit the property on the basis of Will and gift deed. Mere fact that the petitioner possessed a separate ration card would not support the claim of the petitioner as I find that most of the documents placed on record have been created with the sole aim of getting conferred the status of Scheduled Tribe conferred upon the children of the petitioner. 14. In the instant case, it has come on record that the petitioner has purchased the land from her father and thereafter became the owner thereof. Thus, the property has not been acquired by way of inheritance. 15. Before parting, it would be once again necessary to avert to the decision of the Hon’ble Supreme Court in Rameshbhai Dabhai Naika’s case (supra), wherein the Hon’ble Supreme Court did not accept the guiding principle that no person, who was not a Scheduled Caste or Scheduled Tribe by birth would be deemed to be a member of the Scheduled Caste or Schedule Tribe merely because he or she had married a person belonging to Scheduled Caste or Scheduled Tribe and further did not readily accept the presumption that the child has the caste of the father. 16. However, these findings were rendered in the peculiar facts and circumstances of that case where the High Court had not at all adverted to the fact that the mother of the appellant on the question of his upbringing as a member of the Nayak community and his acceptance in the community. 16. However, these findings were rendered in the peculiar facts and circumstances of that case where the High Court had not at all adverted to the fact that the mother of the appellant on the question of his upbringing as a member of the Nayak community and his acceptance in the community. It was in these circumstances that the Hon’ble Supreme Court held the presumption of caste to be rebuttable one. 17. However, this is not the fact situation obtaining in the instant case. Rather, it is a clear case where the petitioner has tried to get a Schedule Tribe certificate in favour of her children despite being disentitle to the same. 18. Having said so, there is no merit in the petition and the same is dismissed, so also the pending applications, if any, leaving the parties to bear their own costs.