1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2347 OF 2009 Rajendra Shrivastava .. Applicants. Versus The State of Maharashtra .. Respondents --- Mr.A.M.Sarogi, for applicant. Mr.Parvez Ubharay , for Complainant Ms. S.D.Shinde ,APP for the State --- CORAM : B.H.MARLAPALLE, A.S.OKA AND R.Y.GANOO, JJ.
THE DATE ON WHICH JUDGMENT IS RESERVED : 18th December 2009 THE DATE ON WHICH JUDGMENT IS PRONOUNCED : 22nd January 2010.
JUDGMENT: (PER A.S.OKA, J):
. The Learned Single Judge (Coram: D.B.Bhosale, J) by his order dated 30th June 2009 has referred the following question for determination by a larger bench :
"If a lady, belonging to the schedule caste/schedule tribe, marrying a person belonging to forward caste, is abused in the name of her caste by a member of public or by her husband or his relatives, whether an offence under the provisions of Atrocities Act can be registered and investigated against such person/s." ::: Downloaded on - 09/06/2013 15:32:36 ::: 2
2. The applicant has filed the present application under section 438 of the Code of Criminal Procedure, 1973. The applicant is the husband of the complainant. The complainant lodged a First Information Report No.125 of 2008 on 8th April 2008. The allegation is of commission of offences under sections and 498A, 406, 494, 34 of the Indian Penal Code read with the provisions of section 3(1)(ii) and section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the said Act"). An offence under section 7(1)(d) of the Protection of Civil Rights Act, 1955 (hereinafter referred to as "the said Act of 1955") was also alleged in the said first information report. The offence was registered against the applicant, his brother and his sister . By birth the complainant belongs to a scheduled caste. The caste of the applicant is "kayastha" which is admittedly neither a scheduled caste nor a scheduled tribe. An application for anticipatory bail was filed by the applicant's sister. The said application was decided by this Court by order dated 2nd March 2009. The submission before this Court was that after her marriage, the caste of the complainant had merged with the caste of the applicant and that on marriage of the Complainant, she ceased to belong to a scheduled caste and therefore, the bar created by section 18 of the said Act of 1989 will not apply. This Court (Coram:Kanade, J) accepted the said contention and held that the application for grant of anticipatory bail was maintainable. This court observed, "In my view, prima facie provisions of Atrocities Act and Protection of Civil Rights Act cannot be made applicable in the present case since the complainant's caste merged with the caste of her husband and therefore, in my view, a complaint could not have been filed that she was abused in the name of her caste after her ::: Downloaded on - 09/06/2013 15:32:36 ::: 3 marriage and that it amounted to an offence under the Atrocities Act or under the provisions of Civil Rights Act. Prima facie, therefore, provisions of Section 12 of the Atrocities Act would not be attracted and the present application for anticipatory bail would be maintainable." (Emphasis added)
3. When the present application came up before another learned single Judge (Coram:D.B.Bhosale,J), he was of the view that a person acquires caste by birth and not by marriage. In paragraphs 10 and 11 of the order dated 30 th June 2009, the learned Judge observed thus:"10 It is true that on marriage the wife becomes an integral part of her husband's marital home entitle to equal status as a member of the family. Therefore, a lady, on marriage becomes a member of the family and thereby also becomes a member of the caste to which she moved.However, that does not mean that she looses her recognition as a person belonging to a backward community which she acquired by birth. More so, when it is evident from the conduct or the treatment given to her by her husband and/or his family members, or a member of the public for that matter. If the husband or his family members or public at large after marriage continue to treat her as a member of the caste which she acquired by birth and tease or abuse her in the name of her caste, in my opinion, the provisions of the Atrocities Act would stand attracted. In such eventuality, the husband or his family members or a member of the public cannot be allowed to raise a defense or take a stand that by virtue of the marriage she became a member of the caste to which she moved and, therefore, the provisions of the Atrocities Act are not attracted.
11. It is now well settled that a person acquires caste by birth and not by marriage. The recognition of a lady as a member of forward class in view of her marriage would be relevant as long as she is treated as a member of the caste to which she moved. But if she is treated as a member of backward community by a member of public or her husband or her relatives by their conduct or treatment to such lady and if they abuse her in the name of her caste which she acquired by birth, in my opinion, there is no legal impediment in registering an offence under the provisions of the Atrocities Act and/or the Civil Rights Act. This is for the reason that she was born in the backward class family and her original status as a member of that class would not get vanished or she would not loose that recognition in the society by virtue of her marriage to a person belonging to forward class. No doubt, her children would not be entitled to claim any benefit under Articles 15(4) or ::: Downloaded on - 09/06/2013 15:32:36 ::: 4 16(4) or 330 or 332 of the Constitution. In view of the settled position of law, the question of merging the caste of wife with the caste of husband does not arise." (Emphasis added)
4. The learned counsel appearing for the applicant relied upon a decision of the Apex Court in the case of Valsamma Paul (Mrs) vs. Cochin University and others [(1996) 3 Supreme Court Cases 545]. Inviting the attention of the Court to paragraph 31 of the said decision , he submitted that the Apex Court has held that a lady, on marriage, becomes a member of the caste to which her husband belongs. He submitted that after her marriage the wife gets transplanted into the caste of her husband. He pointed out that the after her marriage with the applicant, the complainant cannot claim that she belongs to scheduled caste as she gets transplanted into the caste of her husband. He submitted that after her marriage, she cannot claim that she belongs to a backward caste as she gets all the advantages of the forward caste of her husband. He submitted that the correct view is that on a marriage of a woman who is born in a backward caste to a person who does not belong to backward caste, she ceases to belong to the caste of her birth. He submitted that as the complainant cannot claim that she belongs to scheduled caste, the offence alleged under the said Act was not attracted. He urged that the view taken by this court while deciding the application filed by applicant's sister is the correct view.
5. The learned additional public prosecutor contended that the decision of the Apex Court in the case of Valsamma (supra) is not an authority for the proposition that on marriage of a woman belonging to backward caste with a ::: Downloaded on - 09/06/2013 15:32:36 ::: 5 man who is born as a member of forward caste, the wife ceases to be a member of backward caste. The learned counsel appearing for the original complainant submitted that caste of an individual is determined by birth and not by choice. He has placed reliance on a decision of the division bench of this Court in the case of Chetna Rajendra Tank versus Committee for Scrutiny of Caste Certificates of Persons and others (2005 Maharashtra Law Journal
711). He submitted that if the submission of the learned counsel appearing for the applicant is accepted it will defeat the very object of the said Act and the said Act of 1955.
6. We have given a careful consideration to the submissions. The question which arises for determination is as under:" If a woman who by birth belongs to a scheduled caste or a scheduled tribe marries to a man belonging to a forward caste, whether on marriage she ceases to belong to the scheduled caste or the scheduled tribe?"
7. It will be necessary to consider the statement of objects and reasons for the said act of 1989. The relevant part thereof reads thus:"Despite various measures to improve the socio-economic conditions of the Scheduled Castes and Scheduled Tribes, they remain vulnerable.They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of ::: Downloaded on - 09/06/2013 15:32:36 ::: 6 untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty.Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. ........ A special Legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary."
. The object of the said act is to prevent commission of atrocities against the members of the scheduled castes and scheduled tribes. The legislature has noted that the action of persons belonging to scheduled castes or scheduled tribes of asserting their rights is not taken kindly by some persons belonging to forward castes.
. It is necessary to understand the concept of a caste and the manner in which caste is acquired. The Apex Court has dealt with this aspect in the decision in the case of Indra Sawhney vs. Union of India (1992 supplementary (3) Supreme Court Cases 217). In paragraph 779 of the said decision, the Apex Court has observed thus:" 779. The above material makes it amply clear that a caste is nothing but a social class -- a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogeneous class. Endogamy is its main characteristic. Its social status and standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation- caste nexus is true even today. A few members may have gone to cities or even abroad but when they return -- they do, barring a few ::: Downloaded on - 09/06/2013 15:32:36 ::: 7 exceptions -- they go into the same fold again. It doesn't matter if he has earned money. He may not follow that particular occupation.
Still, the label remains. His identity is not changed. For the purposes of marriage, death and all other social functions, it is his social class -- the caste -- that is relevant. It is a matter of common knowledge that an overwhelming majority of doctors, engineers and other highly qualified people who go abroad for higher studies or employment, return to India and marry a girl from their own caste. Even those who are settled abroad come to India in search of brides and bridegrooms for their sons and daughters from among their own caste or community. As observed by Dr Ambedkar, a caste is an enclosed class and it was mainly these classes the Constituent Assembly had in mind
-- though not exclusively -- while enacting Article 16(4)."(Emphasis added)
8. A Constitution Bench of the Apex Court in the case of V.V. Giri vs. D.
Suri Dora,(1960) 1 SCR 42 dealt with the issue as to whether a person who is a member of a scheduled tribe can cease to be a member of such tribe and can be said to have become a member of another caste. The Apex Court observed thus:"That contention is that Respondent 1 had ceased to be a member of the scheduled tribe at the material time because he had become a kshatriya.
In dealing with this contention it would be essential to bear in mind the broad and recognised features of the hierarchical social structure prevailing amongst the Hindus. It is not necessary for our present purpose to trace the origin and growth of the caste system amongst the Hindus. It would be enough to state that whatever may have been the origin of Hindu castes and tribes in ancient times, gradually status came to be based on birth alone. It is well known that a person who belongs by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status. The history of social reform for the last century and more has shown how difficult it is to break or even to relax the rigour of the inflexible and exclusive character of the caste system. It is to be hoped that this position will change, and in course of time the cherished ideal of casteless society truly based on social equality will be attained under the powerful impact of the doctrine of social justice and equality proclaimed by the Constitution and sought to be implemented by the relevant statutes and as a result of the spread of secular education and the growth of a rational outlook and of proper sense of social values; but at present it would be unrealistic and utopian to ignore the difficulties which a member of the depressed tribe or caste has to face in claiming a higher status amongst his ::: Downloaded on - 09/06/2013 15:32:36 ::: 8 co-religionists."(Emphasis added) Thus, membership of a caste is involuntary. Historically persons carrying on one particular occupation may belong to one particular social class forming a particular caste. A person born in a family belonging to a particular caste which is associated with a particular occupation may not continue the occupation. But still he remains and continues to be a member of a social class forming the said caste. The reason is that the label remains. For the purposes of marriage and all other social functions up to his or her death, the caste continues to be relevant. Notwithstanding all attempts of weeding out this phenomenon, the stark reality is that the theme still remains the same.
9. The learned counsel appearing for the applicant has relied upon the decision of the Apex Court in the case of Valsamma (supra). In the case before the Apex Court, a post of a lecturer in Law Department of the University of Cochin was reserved for Latin Catholics (backward class fishermen). The appellant before the Apex Court was a Syrian Catholic (a Forward Caste). She had married a Latin Catholic. She applied for the reserved post and was accordingly appointed. Her appointment was challenged by filing a writ petition.
The appointment was set aside. Ultimately the matter was referred to a full bench for deciding the question whether the appellant acquired caste of her husband. The full bench of Kerala High Court held that the appellant being a Syrian Catholic by birth, by marriage with the husband who was a Latin Catholic, she cannot claim the status as a backward class. In paragraph 10 of the said decision the apex court referred to the question before it. The relevant ::: Downloaded on - 09/06/2013 15:32:36 ::: 9 part of paragraph 10 reads thus:"10. The question, therefore is: Whether a candidate, by marriage, adop- tion or obtaining a false certificate of social status would be entitled to an identification as such member of the class for appointment to a post re- served under Article 16(4) or for an admission in an educational institu- tion under Article 15(4)? "
Again in paragraph 33 ,the Apex Court again referred to question before it:
"However, the question is: Whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15(4) or 16(4), as the case may be?"
In paragraph 34 of the decision ,the Apex Court proceeded to hold as under:"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."
10. A strong reliance has been placed by the learned counsel for the applicant on observations made in paragraph 31 of the said decision in the case of Valsamma (supra) which reads thus:"31. It is well-settled law from Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry that judiciary recognised a century and a half ago 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 'Sapinda' of her husband as held in Lulloobhoy Bappoobhoy Cassidass Moolchund v. Cassibai. 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 ::: Downloaded on - 09/06/2013 15:32:36 ::: 10 family to which the husband belongs and she gets herself transplanted."(Emphasis added) It is well settled that a decision is an authority for what it actually decides. What is the essence of a decision is the ratio . Every observation made in the decision cannot be said to be a ratio. What logically follows from a decision is not the ratio. In the case of State of A.P. vs. M. Radha Krishna Murthy [(2009) 5 SCC 117], the Apex Court has reiterated the well settled principles governing precedents. The Apex Court proceeded to observe thus:"15. ... Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton(AC at p.761), Lord Mac Dermot observed:'The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J, as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge....'16. In Home Office v. Dorset Yacht Co. Ltd. Lord Reid said (AC at p. 1027 A-B) 'Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances.' Megarry, J. in Shepherd Homes Ltd. v. Sandham (No.2) observed: (AC at p.1069 H) '... One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament....' And, in British Railways Board v. Herrington Lord Morris said: (AC p.902D) 'There is always peril in treating the words of a speech or judgment as ::: Downloaded on - 09/06/2013 15:32:36 ::: 11 though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.18. The following words of Lord Denning in the matter of applying precedents have become locus classicus:"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."(Emphasis added)
11. The observations made in paragraph 31 of the decision in the case of Valsamma (supra) above cannot be read as a ratio laying down that on marriage, a wife is automatically transplanted into the caste of husband. The law on this aspect has been laid down by a larger bench of the Apex Court in the case of V. V. Giri (supra). The Constitution bench held that the caste is acquired by birth and the caste does not undergo a change by marriage or adoption. The ratio of the decision in the case of a Valsamma Paul (supra) is that acquisition of the status of a scheduled caste or a scheduled tribe by voluntary mobility into these categories would play fraud on the constitution.
The Apex Court held that a candidate born in forward caste who is transplanted ::: Downloaded on - 09/06/2013 15:32:36 ::: 12 in a family of backward caste by adoption or by marriage does not become eligible to benefits of reservation under the constitution. The observations made in paragraph 31 in the case of Valsamma(supra) are not to the effect that a woman born in a forward caste , on her marriage with a person belonging to a scheduled caste or a scheduled tribe , is automatically transplanted in the caste of her husband by virtue of her marriage. In fact, the ratio of the said decision is set out in paragraph 34 of the judgment which has been quoted above.
12. When a woman born in a scheduled caste or a scheduled tribe marries to a person belonging to a forward caste, her caste by birth does not change by virtue of the marriage. A person born as a member of scheduled caste or a scheduled tribe has to suffer from disadvantages, disabilities and indignities only by virtue of belonging to the particular caste which he or she acquires involuntarily on birth. The suffering of such a person by virtue of caste is not wiped out by a marriage with the person belonging to a forward caste. The label attached to a person born into a scheduled caste or a scheduled tribe continues notwithstanding the marriage. No material has been placed before us by the applicant so as to point out that the caste of a person can be changed either by custom, usage, religious sanction or provision of law.
13. If the interpretation sought to be put by the learned counsel appearing for the applicant is accepted, it will defeat the very object of enacting the said Act. It will defeat the innovative steps taken by the framers of our constitution for protecting the persons belonging to scheduled castes and scheduled tribes who have suffered for generations.::: Downloaded on - 09/06/2013 15:32:36 ::: 13
14. Thus, the question formulated by the learned Single Judge will have to be answered in the affirmative. The question formulated by us in paragraph one will have to be answered in the negative. A woman who is born into a scheduled caste or a scheduled tribe, on marriage with a person belonging to a forward caste, is not automatically transplanted into the caste of husband by virtue of her marriage and, therefore, she cannot be said to belong to her husband's caste.
15. We direct the Registry to place this application before the appropriate court for deciding the same in accordance with law.
(B.H.MARLAPALLE, J) (A.S.OKA, J) (R.Y.GANOO, J) ::: Downloaded on - 09/06/2013 15:32:36 :::