In a latest Judgment the Division Bench of Delhi HC comprising of Justice Hima Kohli and Justice Subramonium Prasad observed that the children of a mother belonging to a Scheduled Caste could not be granted a caste certificate unless it was proved that the community of their mother had accepted them into the community.
In 1999, the appellant, a woman, belonging to a scheduled caste community from Assam, married one Vikas Hora belonging to a forward caste community. They solemnized their marriage in Lucknow. Both the appellant, as well as her husband, were serving in the Indian Air Force. They had two children born out of this wedlock in 2001 and 2004 respectively. The appellant initiated a divorce proceeding on the ground of cruelty against her husband, and a decree of divorce dissolved their marriage through an order dated 07.03.2009.
On 5-10-2016, the appellant filed an application for the issuance of scheduled caste certificates regarding her two children, but the executive magistrate took no step. After that, she filed writ petition no. W.P. (C) 4947/2017 wherein, the Single Judge directed the appellant to file an application and to furnish requisite material for the issuance of the scheduled caste certificate.
After that, the appellant applied for the same, but the respondent rejected it. The appellant challenged the decision of the executive magistrate through a writ petition. In that writ petition, the Court held that the executive magistrate had given no reason for rejecting the application and directed the respondent to reconsider the case of the appellant with a reasoned order on or before 25.09.2018.
The Respondent on 31.07.2019 again rejected the application of the appellant on the ground that she had not shown that her children were brought up in the company of the relations on the maternal side and that they attended all family functions, holidays and gatherings, etc. held in the village of the appellant, therefore her children were not entitled to the certificate. This order of the respondent was challenged by the appellant in writ petition no. W.P. (C) 8780/2019 wherein the Single Judge decided against the appellant. The appellant then challenged the order of Single Judge through an appeal.
Whether the children of the appellant could be granted a Scheduled Caste certificate when they had not faced any difficulties, indignities humiliations, deprivations, or disability based on that their mother belonging to a Scheduled Caste raised them without any assistance from her ex-husband who belonged to a forward caste?
SUBMISSIONS OF THE APPELLANT
- It was submitted by the counsel of the Appellant that she is a single mother, and her children had grown up in the complete absence of her Father. Neither they had lived with their Father nor even ever interacted with the members of his community.
- Further, her children could not be considered as part of their Father’s side as after getting a divorce from the appellant their Father remarried and had children from the second marriage. The Father of the children nominated his kids from second marriage as his dependents.
- She added that her husband had never supported her or the children after the divorce. She single-handedly brought up the children. Therefore, as their mother belonged to a scheduled caste community, this could be enough reason for the issuance of a Scheduled Caste Certificate for her children.
- It was also pleaded that as the children lived with the mother throughout and therefore, the mother’s heritage should be dominant, and there was no requirement to show the acceptance of the mother’s community towards the children.
- Counsel for the Appellant argued that she should not be prevented from passing on to her children the advantage that was given to her by the Constitution of India, merely due to the reason that their Father belonged to a forward caste.
- Also. the respondent, through an order dated 07.03.2017, created a distinction based on gender, which was the violation of Article 14 and Article 21. It was discriminatory to ask the single mother belonging to a Scheduled Caste Community, to prove the acceptance of their children by her community and also that her children had undergone the same humiliation and atrocities which their mother faced.
SUBMISSIONS OF THE RESPONDENT
- The community of the appellant never accepted the marriage of the appellant with her husband. Both the appellant and her husband lived outside the village of the appellant and never visited their village.
- They jointly raised their children. Even the children carried on the surname of their forward caste father.Children had not faced any disability or disadvantage during their early years of upbringing as well as during their education. The children had never visited the village of the appellant.
- In the absence of any proof that the children of the appellant were sent back to her community for the acceptance or that they had faced any socio-economic disability or any disadvantage on the educational front, they were entitled to the issuance of Scheduled Caste Certificate in their name.
- The burden to prove the social status was on the person who sought socio-economic advantages. In the absence of any proof, no caste certificate could be issued for the appellant’s children. It was the condition precedent to show that one had suffered a disability from where he belonged to get Scheduled Caste Certificate issued.
FINDINGS OF THE COURT
After goind through the records and hearing the parties the court observed that it is now well settled that in an inter caste marriage, the caste status of a person would have to be determined in the light of acceptance from the other members of the very same caste into which the person seeks an entry.
Unless there is some positive evidence adduced to demonstrate that the community had accepted the Scheduled Caste person and her offsprings back into the fold, the children would not be entitled to the benefit of a caste certificate.
Further the Court observed that in an inter-caste marriage between a tribal and non-tribal, the determination of the caste of the offspring is a question of fact to be decided in each case separatel and it has to be brought out that the children have suffered from any disability or disadvantage because of the abandonment by the father.
On the facts of the case the Court found that the children of the appellant have continued to retain the surname of her husband. They were studying in good schools at Jorhat, Delhi and now in Hyderabad. The elder son was to take the JEE main examination in the first week of September, 2020, which was cited by the appellant as a reason for an early hearing of the appeal in the expectation that if she succeeds, the children will get a caste certificate which will place the elder son at an advantageous position at the time of allotment of seats reserved for the Scheduled Caste category.
The children were born when the marriage was subsisting and therefore, they were not entitled to the community certificate of the caste to which the appellant belongs. After the divorce, the children continued to keep the surname of the father, going to show that they have projected themselves to the society as belonging to a forward community.
It as been held that in the absence of any positive or cogent evidence demonstrating that the community of the mother had accepted the children, simply on the strength of the appellant having raised the children on her own, they cannot be entitled to a certificate of the caste to which their mother belongs.
The Executive Magistrate can therefore not be faulted in observing that in the absence of any cogent documentary evidence to support the fact that the appellant’s children have grown-up in the company of their relatives from the maternal side and had attended family holidays, ceremonies, rituals, gatherings, etc., thereby assimilating into the community, no Scheduled Caste certificate can be issued in their favour.
Court observed that in India, determination of the caste of a person is governed by the customary laws. Under the customary Hindu law, a person inherits his caste from the father. As has been rightly observed by the learned Single Judge, where it is established that the offsprings have grown up in a notified community or tribe and have suffered all the disadvantages and deprivations of belonging to such a community, the impugned Office orders do not come in the way of issuance of the caste certificate certifying that the children belong to the caste of their mother.