Rohan Nandakumar vs State Of Maharashtra And Anr.
2004 Latest Caselaw 487 Bom

JUDGMENT

C.K. Thakker, C.J.

1. This petition is filed by the petitioner for an appropriate writ, direction or order, quashing and setting aside a Resolution of the Government of Maharashtra, dated 7th May, 1999, to the extent that it deprives children belonging to Backward Class of concessions and benefits to which they are entitled.

2. The petitioner is a minor. He has filed this petition through his mother Mrs. Padmini Nair (Nashikkar), residing at Nasik. The case of the petitioner is that his mother's maiden name was Ms. Mandakini Wamanrao Bodke @ Nashikkar. She belongs to Vanjari Caste which is classified as Nomadic Tribe. Petitioner's father, Nandakumar Bhaskaran, hails from the State of Kerala. His community does not recognize any caste. He, therefore, has no caste. It is the case of the petitioner that he was born and brought up among the family members and relatives of his mother, all of whom belong to Hindu-Vanjari community. The petitioner does not know Keralite customs and traditions of his father. None of the relatives of the petitioner's father resides in Maharashtra. The petitioner also occasionally visits his relatives from father's side. He, however, is known as Vanjari. The petitioner got admitted to a school by declaring his caste as Hindu-Vanjari. In the school record, his caste is noted as Hindu-Vanjari. At present the petitioner is studying in 12th Standard and would be entering College in the next year. He, therefore, applied for a caste certificate so that he can get admission in a College next year. The petitioner was, however, told that no caste certificate would be issued in his favour in view of the Government Resolution dated 7th May, 1999 (Exhibit-D) which stipulates that in case of inter-caste marriage, the concessions and benefits of the father's caste would be available to children and not of the mother's caste. According to the petitioner, the resolution refers to a decision of the Supreme Court. But the said decision is neither correctly interpreted nor properly applied by the State Government and the petitioner is deprived of concessions and benefits as a member of Vanjari caste. He, therefore, is constrained to approach this Court by filing the present petition impugning the resolution being illegal, invalid and ultra vires Article 14 of the Constitution.

3. We have heard the learned counsel for the parties.

4. It is not in dispute between the parties that the mother of the petitioner belongs to Backward Class i.e. Hindu-Vanjari community, which is classified as Nomadic Tribe. It is also not in dispute that petitioner's father is from Kerala. According to the petitioner, the community of his father does not have any caste. It is not even the case of the petitioner or his mother that the father of the petitioner or husband of Padmini Nair belongs to Backward Class. The question before this Court is whether in the circumstances, the petitioner would be entitled to concessions and benefits as Nomadic Tribe to which the mother of the petitioner belonged prior to her marriage.

5. Now, it may be appropriate to consider the resolution of the Government of Maharashtra issued of 7th May, 1999. Considering several resolutions and circulars issued from time to time by the State and referring to a decision of the Supreme Court in Valsamma Paul (Mrs.) v. Cochin University and Ors., , it was decided that a candidate who had the 'advantageous start' in life being born in forward caste would not be entitled to concessions and benefits of reservation under Article 15(4) or 16(4) of the Constitution. In the light of the decision of the Supreme Court, the Government of Maharashtra issued certain directions. Clauses 4 and 5 of the Resolution are material and read thus :

"4. It is further clarified in this behalf that if a man belonging to Scheduled Caste, Vimukta Jati and Nomadic Tribes or Other Backward Class marries to a Non-Backward woman, such person if he is backward class by birth would continue to be eligible for the concessions and benefits available to the backward class persons. The caste of the children is determined on the basis of the father's caste, such concessions and benefits would be available to the children as they are available to their father. However, such concessions will not be available to the wife. 5. If a woman belongs to Scheduled Caste, Vimukta Jati and Nomadic Tribes or Other Backward Class marries a man who is not of backward class community, such woman because she belongs to backward class by birth would be entitled to the same benefits and concessions which were available to her before her marriage. She will be entitled to such concessions even after the inter-caste marriage. However, such concessions will not be available to her husband or children."

6. Bare reading of the above clauses make it clear that where a man belonging to backward class marries a woman belonging to non-backward class, he would continue to be eligible to get concessions and benefits available to backward class persons. It further states that the caste of the children would be determined on the basis of his father's caste and all concessions and benefits would also be granted to his children as they are granted to the father. It, however, states that "such concessions will not be available to the wife".

7. It further provides that where a woman belonging to a backward class marries a man who does not belong to backward class, such woman, since she belongs to backward class by birth, she would be entitled to all the concessions and benefits which are available to her as a member of backward class prior to her marriage. She would be entitled to those concessions and benefits even after inter-caste marriage. It, however, clarifies that "such concessions will not be available to her husband or children".

8. The grievance of the petitioner before this Court is that Clause 5 of Resolution dated 7th May, 1999 to the extent that it deprives the concessions and benefits to the children whose mother belongs to backward class but whose father does not belong to backward class is arbitrary, discriminatory and violative of Article 14 of the Constitution.

9. Now, it is clear from the Government Resolution that it has been issued by the State Government keeping in view the law laid down by the Supreme Court in Valsamma Paul (Mrs.). It is contended by the learned counsel for the petitioner that the said decision has not been properly interpreted, understood and applied by the State Government in issuing the Resolution. It is, therefore, necessary that for deciding the validity or otherwise of the resolution, the Court has to consider Valsamma Paul (Mrs.). In that case, two posts of Lecturers in Law Department of Cochin University were notified for recruitment, one of which was reserved for Latin Catholics (Backward Class Fishermen). The appellant, a Syrian Catholic (Forward Class), having married a Latin Catholic (Backward Class) applied for selection as a reserved candidate. She was selected on that basis and accordingly was appointed as against the reserved post. Her appointment was challenged by another candidate by filing a writ petition and praying for a direction to the University to appoint her in the place of appellant to the said post, inter alia, on the ground that the appellant could not be said to be belonged to Backward Class candidate. A single Judge of the High Court of Kerala allowed the petition and held that the appointment of respondent could not have been made in the category of Backward Class Fishermen. An appeal was preferred against the said decision but in view of another decision of a Single Judge which was confirmed by the Division Bench taking a contrary view, the Division Bench ordered that the matter be placed before the Full Bench. The Full Bench held that the respondent belonged to Forward Class Community. She, no doubt, got married according to Canon Law to a person belonging to backward class. But she could not claim the status of backward class by such marriage. She was, therefore, not entitled to the benefit as a backward class candidate.

10. Being aggrieved by the said decision, the appellant approached the Supreme Court. The Apex Court considered the relevant provisions of the Constitution, ambit and scope of human rights and the leading decisions on the point and observed that the question before the Court was whether a candidate, by marriage, would be entitled to an identification as member of that class for appointment to a post reserved under Article 16(4) or an admission in an educational institution under Article 15(4). Referring to Madhuri Patil v. Additional Commissioner, Tribal Development, , the Court held that for the purpose of entitlement to admission under Article 15(4), the identification by the President as a Scheduled Tribe under Article 342(1) subject to the law under Article 342(2) of the Constitution is conclusive. It was also observed that there should not be an attempt of transplantation of forward classes into backward classes. Citing a decision of High Court of Andhra Pradesh in P. Mallikharjunadev v. Govt. of A. P., (1989) 3 Andh LT 50, the Court stated that instead of integrated forward march, it would be a retrograde reverse march from forward to backward status to claim reservations. Noting another decision of the same Court in A. S. Sailaja v. Principal, Kurnool Medical College, , the Court stated;

"A person born in upper caste and having early advantages of education is not entitled to the benefit of Article 15 (4)".

11. The Apex Court further stated that the institution of marriage is one of the sound social institutions to bring harmony and integration in social fabric. The Court indicated that inter-caste marriages and adoption are two important social institutions through which secularism would find its fruitful and solid base for an egalitarian social order under the Constitution. In the opinion of the Court, therefore, due recognition should be accorded for social mobility and integration and such recognition must be upheld as valid law.

12. Quoting with approval, the observations of the Judicial Committee of Privy Council in Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry, (1865) 10 MIA 279, the Supreme Court concluded that "a husband and wife are one under the Hindu law, and so long as the wife survives, she is half of the husband". She is Sapinda of her husband (vide Lullobhoy Bappoobhoy Cassidass Moolchand v. Cassibai, (1879-80) 7IA 212.

13. The Court proceeded to state:

"It would, therefore, be clear that be it either under the Canon law or the Hindu law, on marriage the wife becomes an integral part of husband's marital home entitled to equal status of husband as a member of the family. Therefore, the lady, on marriage, becomes a member of the family and thereby she becomes a member of the caste to which she moved. The caste rigidity breaks down and would stand no impediment to her becoming a member of the family to which the husband belongs and she gets herself transplanted."

14. From the above observations and the law declared by the Supreme Court, there is no doubt in our minds that the Resolution issued by the State Government and in particular Clauses 4 and 5 are in consonance with law. As far as Clause 4 is concerned, if a man belonging to backward class marries a woman not belonging to backward class, he does not loose concessions and benefits which he was enjoying as a member of backward class. The resolution, therefore, rightly states that such man would continue to get all concessions and benefits which he would be getting but for his marriage with a woman belonging to forward class. It also, in our opinion, rightly proceeds to state that all concessions and benefits would also be extended to his children. It, however, correctly proceeds to state that such concessions and benefits would not be available to the wife. It is obvious because she did not belong to backward class and thus she had not been put in 'disadvantageous position' to be protected under Article 15(4) or 16(4) of the Constitution.

15. There is equally no doubt in our minds that Clause 5 of the resolution is in consonance with the intention of the makers of the Constitution and the object underlying Articles 15(4) and 16(4) of the Constitution. Clause 5 of the resolution declares that where a woman belonging to a backward class marries a man who does not belong to backward class, she would continue to enjoy the same concessions and benefits which were available to her before her marriage. This is in consonance with the avowed object reflected in Articles 15(4) and 16(4) of the Constitution. Such provision was necessary in view of the settled legal position since more than one and a half century and recognised by the Judicial Committee of the Privy Council in Bhoobum Moyee Debia and reiterated by the Supreme Court in Valsamma Paul (Mrs.) that "a husband and wife are one under Hindu law, and so long as the wife survives, she is half of the husband". She is also sapinda. In Valsamma Paul (Mrs.), therefore, the Supreme Court held that either under the Canon Law or under the Hindu Law, on marriage of a woman she (wife) becomes "an integral part" of husband's marital home. Thereafter she would be entitled to equal status of husband as a member of the family. The Court also proceeded to lay down the law that a woman on marriage becomes a member of husband's family and thereby she becomes a member of the caste to which she moves and to which her husband belongs. According to the Court, on marriage of a woman, the caste rigidity breaks down and would stand no impediment for the wife in becoming a member of the family of her husband as "she gets herself transplanted" to the caste or community of the husband.

16. In view of express enunciation of law by the Supreme Court in Valsamma Paul (Mrs.), in our opinion, Clause 5 of the Government Resolution cannot be held illegal, arbitrary, discriminatory or ultra vires Article 14 of the Constitution. On the contrary, it is in consonance with the law declared by the Supreme Court in the said decision. Clause 5, therefore, in our opinion rightly states that though a woman belonging to backward class marrying to a man belonging to non-backward class will continue to get all concessions and benefits even after inter-caste marriage, such concessions and benefits will not be available to her husband or to her children.

17. In our judgment, after the marriage, "a husband and wife are one under the Hindu law", and the wife is "half of the husband", and is "sapinda" of her husband as "she gets herself transplanted to her husband's family". After such marriage, therefore, she would be governed by the law applicable to her husband. If her husband does not belong to backward class, neither he would be entitled to concessions and benefits as a member of backward class on the basis of his marriage with a woman belonging to non-backward (sic) class nor his children would claim such concessions and benefits. In our considered opinion, therefore, the Government Resolution dated 7th May, 1999, cannot be declared ultra vires Article 14 or Article 19 of the Constitution.

18. The learned counsel for the petitioner invited our attention to the "Convention of the Elimination of All Forms of Discrimination against Women, 1979" and particularly Clause 32 thereof. To us, however, the point is covered by the Supreme Court in Valsamma Paul (Mrs.) and the Resolution has been issued following the said decision and, hence, it cannot be objected. Similarly, Githa Hariharan and Anr. v. Reserve Bank of India and Anr., , does not carry the case of the petitioner further. In Githa Hariharan, the Court was considering the case of the mother as "guardian" under the Hindu Minority and Guardianship Act, 1956 as also under the Guardians and Wards Act, 1890. A communication by the Under Secretary to Government of India dated 4th March, 1975 to all Governments and Union Territory Administrations on the subject of "status of the children belonging to the couple one of whom belongs to Scheduled Castes/Scheduled Tribes" is also not helpful. The said letter has nothing to do with the point raised by the petitioner in the present petition.

19. For the foregoing reasons, we hold that the Resolution of the Government of Maharashtra dated 7th May, 1999, cannot be declared illegal, arbitrary, discriminatory or ultra vires Article 14 of the Constitution. We see no substance in the contention raised by the learned Counsel for the petitioner. The petition, therefore, deserves to be dismissed and is accordingly dismissed. In the facts and circumstances, however, there shall be no order as to costs.

Parties be given copies of this order duly authenticated by the Associate/Sheristedar/Private Secretary.