Caste Status: RBE No.102/1986 – Off-springs of Inter-Caste Married Couples
No.85-E(SCT)I/31/4, DATED 06.06.1986
Sub: Caste status of the off-springs of inter-caste married couples.
A copy of the Ministry of Home Affairs’ letter No.39/37/73-SCT-1, dated 21.05.1977 on the above subject is sent herewith for information and guidance.
Government of India, Ministry of Home Affairs
No.39/37/73-SCT-1, dated 21.05.1977
To
The Chief Secretaries of all State
Governments & Union Territory
Administrations
Sub: Caste status of the off-springs of inter-caste married couples.
Sir,
1. I am directed to say that enquiries about the caste status of the off-springs of the inter-caste married couples, have been sought from this Ministry by, various State Governments/ Union Territory Administrations, from time to time. Accordingly this question has been receiving the attention of this Ministry for quite some time. A set of legal views on the caste status of such off-springs was already brought out vide this Ministry’s letter of even number dated the 4th March, 1975. The matter has, however, been further examined and the comprehensive legal position about the status of the off-springs born to couples where one or both of the spouses is/are member(s) of Scheduled Castes and/or Scheduled Tribes, is given in the enclosed Annexures (A to D).
2. It is requested that these instructions may be circulated among all the authorities empowered to issue Scheduled Caste and Scheduled Tribe certificates.
ANNEXURE-A
Legal views on the status of the off-springs of a couple where one of the spouses is a Member of a Scheduled Caste:-
1. The general position of Law as to that effect of marriage between parties who are Hindus and one of whom belongs to the Scheduled Castes is that under the ancient Hindu Law, generally, inter-caste marriage was looked down upon by the propounders and commentators. Some, of the authorities; however, reluctantly permitted marriage between a male caste Hindu with a Shudra female and included it in the list of Anuloma marriages although it was stated that in the wedding with a Shudra wife; the ceremony should be performed without Mantras. The children born out of a marriage by a caste Hindu with a woman of an inferior caste had neither the caste of the father nor the status of his Savarn Aurasas – meaning the son born of a caste Hindu wife. They were termed as Anulomaja and belonged to an intermediate caste higher than that of their mother, and lower than that of their father. Yajnavalkya omits the son of Brahmin by a Shudra wife from the list of sons mentioned by Manu. Pratiloma Marriages, i.e. marriages between woman of a superior castes with a man of an inferior caste, were altogether forbidden and no rites were prescribed for them in Grihya Sutra and persons entering into such marriages were degrades from the caste.
2. After the passing of the various statutory enactments relating to the Hindu law, such as the Hindu Marriages Act, 1955 the Hindu Succession Act, 1956 and the Hindu Minority & Guardianship Act, 1956, customary ban on inter caste marriages in either way, has been lifted by the Statutory enactments Under the Hindu Marriage Act, any, two Hindus of different sex, irrespective of their caste may enter into a valid marriage unless such marriage is prohibited by the Statute itself. According to the above three Statutes, all children either legitimate, or illegitimate, one of whose parents is a Hindu, Budhist, Jain or, Sikh by religion and Who are brought up as members of the tribe, community, group or family to which their parents belong or belonged, are to be treated as Hindus. In view of the above, the off-springs of marriage between the caste Hindu and a member of the Scheduled Caste community, are Hindus and like the off-springs of Marriage in the same caste, are entitled to succeed to the properties of their parents. But the status of his or her parent belonging to the higher caste or to question arises as to whether such a child will acquire the status of that of the parent belonging to the Scheduled Caste. On this point, we have not come across any direct case law. But we feel that the ratio of the decision in Wilson Read Vs. C.S. Booth reported in AIR 1958 Assam, 128 would apply to such cases. It is stated at page 182:-
“The test which will determine the membership of that individual will not be only the purity of blood, but his own conduct in following the customs & the way of life of the tribe, the way in which he was treated by the community and the practice amongst the tribal people in the matter of dealing with persons whose mother was a Khasi and father was an European.”
Similarly, in the case of Muthuswami Mudaliar Vs. Masilmam Mudialar, reported in ILR 33, Madras, 342, the Court held:-
“It is not uncommon process for a class or tribe outside the pale of caste to another pale and if other communities recognised their claim, they are treated as of that class or caste. The process of adoption into the Hindu hierarchy through caste is common both in the North and in the South India. As we have already pointed out, in the past there have been cases where people who judge from the purity of blood could not, Khasis, were taken into their fold or the orthodoxy did not stand in the way of their assimilation into the Khasi community”.
3. The Supreme Court in V. V. Giri vs Dippala Suri Dora reported in AIR 1959 S.C. 1318 (1327) held:-
“…….The caste-status of a person in the context would necessarily have to be determined in the light of the recognition received by him from the members of the caste into which he seeks an entry. There is no evidence on this point at all. Besides the evidence produced by the appellant merely shows some acts by respondent-1 which no doubt were intended to assert a higher status; but unilateral acts of this character cannot be easily taken to prove that the claim for the higher status which the said acts purport to make is established. That is the view which the High Court has taken and in our opinion the High Court is absolutely right.”
In view of the above observations by superior Courts, it can safely be concluded that the crucial test to determine is whether a child born out of such a wedlock has been accepted by the Scheduled Caste, community as a member of their community and has been brought up in that surrounding and in that community or not. The nexus between the child and the community or class or caste is a real test irrespective of the fact whether the accommodating class or caste or community is Scheduled Caste community or a caste Hindu community. Even if the Mother of the child is a member of the Scheduled Caste community, it is possible that the child is accepted by the community of his father and brought up in the surroundings of his father’s relations. In that cage, such a child cannot be treated as a member of Scheduled Caste community and cannot get any benefit as such. Similarly, when the mother belongs to a higher caste and the father is a Scheduled Caste, the father may remain away from the Scheduled Caste community and the child may be brought up, in a different surrounding under the influence of his mother’s relations and her community members. In such cases also, the child cannot be said to be a member of the Scheduled Caste community. In the alternative, where the child irrespective of the fact whether the father or the mother is a member of Scheduled Caste community, is brought up on the Scheduled Caste community as a member of such community, then he has to be treated as a member of the Scheduled Caste community and would be entitled to receive benefits as such.
4. As regards the marriages not registered and Marriages not legally valid, it may be pointed out that registration is not mandatory for marriages under the Hindu law. Even under the Hindu Marriage Act, 1955, registration under Section 8 is optional and sub section (5) provides that the validity of any Hindu marriage shall, in no way, be affected by the omission to make entry in the Marriages Register maintained under this Section. Section 7 provides that Hindu marriage may be solemnized in accordance with the customary rites and the ceremonies of either party, thereto, and, if such ceremony includes the Saptapadi, the marriage becomes complete and binding when the seventh step is taken. In view thereof, all those , marriages though not registered but which have been solemnized in accordance with the procedure mentioned in this Section, are to be treated as valid marriages and our opinion mentioned in para 3 above will apply to the children born out of such valid but undersigned marriages.
5. As regards marriages which are not legally valid, it is clear that such children are illegitimate unless invalidity of marriage is due to grant of a decree of nullity by a Court in which case provisions of Section 16 of the Hindu Marriage Act, 1955, will apply. Under Section 6(b) of the Hindu Minority and Guardianship Act, 1956, the natural guardian of a Hindu minor has been stated to be:-
“In case of an illegitimate boy or an illegitimate girl – the mother and after her the father.”
6. It can be derived from this that the illegitimate children are generally brought up by the mother and in her own, surroundings. Therefore, if the mother belongs to the Scheduled Caste and brings up the child within a Scheduled Caste community, the child can be taken as a member of the Scheduled Caste community. But in this case also the major factor for consideration is whether the child has been accepted, by the Scheduled Caste community as a member of their community and he has been brought up as such.
7. The above, are the general observations, however, each case has to be examined in the light of the circumstances prevalent in that case and final decision has to be taken thereof.
ANNEXURE-B
Legal views on the status of the off-springs of a couple where one of the spouses is a member of a Scheduled Tribe:-
1. The question has arisen whether the off-spring born out of wedlock between a couple one of whom is a member of Scheduled Tribe and other is not, should be treated as a Scheduled Tribe or not.
2. It may be stated at the outset that unlike members of Scheduled Castes, the members of Scheduled Tribes continues as such even after their conversion to other religion. This is because while Constitution (Scheduled Castes) Order, 1950 provides in clause 3 that only a member of Hindu or Sikh religion shall be deemed to be a member of Scheduled Caste, the Constitution (Scheduled Tribes Order, 1950) does not provide any such condition. This view has been upheld by the Supreme Court in the case reported in AIR 1964 S.C. at P. 201.
3. It may be stated that unlike Members of Scheduled Castes, members of Scheduled Tribes remain in homogenous groups and quite distinct from any other group of Scheduled Tribes. Each Tribe live in a compact group under the care and supervision of the elders of the Society whose Words is obeyed in all social matters. A member committing breach of any prescribed conduct is liable to be excommunicated. The social custom has a greater binding force in their day-to-day life.
4. In the case of marriage between a tribal with a non-tribal the main factor or consideration is whether, the couple were accepted by the tribal, society to which the tribal spouse belongs. If he or she, as the case may be, is accepted by the Society then their children shall be deemed to be Scheduled Tribes. But this situation can normally happen when the husband is a member of the Scheduled Tribe. However, a circumstance may be there when a Scheduled Tribe woman may have children from marriage with non-Scheduled Tribe man. In that event the children may be treated as Scheduled Tribe only if the members of the Scheduled Tribe community accept them and treat them as members of their own community. This view has been held by the Assam High Court in Wilson Read Vs. C. S. Booth reported in AIR 1958 Assam at p.128, where it has been held:-
“The test which will determine the membership of the individual will not be the purity of blood, but his own conduct in following the customs and the way of life of the tribe; the way in which he has been treated by the Community and, the practice amongst the tribal people in the matter of dealing with persons whose mother was a Khasi and father was a European.”
Similarly, in the case of Muthuswami Mudaliar Vs. Masilmam Mudialar, reported in ILR 33, Madras, 342, the Court held:-
“It is not uncommon process for a class or tribe outside the pale of caste to another pale and if other communities recognized their claim, they are treated as of that class of caste.”
Similarly, in V. V. Giri vs Dippala Suri Dora reported in AIR 1959 S.C. 1318 (1327) Court held:-
“The caste-status of a person in the context would necessarily have to be determined in the light of the recognition received by him from the members of the caste into which he seeks an entry.”
5. As mentioned above, it is the recognition and acceptance by the society of the children born out of a marriage between a member of Scheduled Tribe with an outsider; which is the main determining factor irrespective of whether the Tribe is matriarchal or patriarchal. The final result will always depend on whether the child was accepted as a member of the Scheduled Tribe or not.”
6. The general position of law has been stated above. However, each individual case will have to be examined in the light of existing facts and circumstances in such cases.
ANNEXURE-C
Legal views on the status of the off-springs of a couple where both the spouses are members of Scheduled Caste/ Scheduled Tribes but each belongs to a different sub-caste/ sub-tribe:-
Under the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order 1950, what is material is residence of the member of the caste, race or tribe in the localities specified in the respective schedule. In the case of a minor child the question arises whether his residence will go along with that of his father. Under the principles of Private International Law, the domicile of a minor child follows that of his father, and in certain cases of his mother and the minor child is incapable of changing his domicile by any voluntary act. This rule by no means is absolute. Suppose, for instance, a father deserts his son or he is divorced and the custody of his son is given to his wife. In such a case the Court may consider that the minor’s domicile will be that of the mother.
2. Under section 3 of the Hindu Minority and Guardianship Act, 1956 the natural guardian in the case of a minor boy or an unmarried girl is father and after him his mother. In the case of an illegitimate unmarried girl, the natural guardian will be the mother and after her the father.
3. In the above background it has to be seen as to which sub-caste or sub-tribe the off-spring would belong in case the parents belong to two distinct communities within the same Scheduled Castes or Scheduled Tribes as the case may be. Prima facie it would appear that in such cases the children born of such parents could be treated as members of the Scheduled Castes or Scheduled Tribes, as the case may be. The prima facie presumption is also in favour of the child possessing the sub-caste or sub-tribe of the father in the large majority of cases, having regard to the concept of domicile mentioned above. Apart from this, it has to be seen whether the child has also been accepted and assimilated in the sub-caste or sub-tribe in that community. Each case has to be examined in the light of the circumstances pertaining to it.
ANNEXURE-D
Legal views on the status of the Offsprings of a couple where one of the spouses is a member of a Scheduled Caste and the other that of a Scheduled Tribe:-
1. As regards the status of the off-spring whose father is a member of Scheduled Caste and mother of a Scheduled Tribe, the prima facie presumption is in favour of the child possessing the caste of the father in the large majority of cases, having regard to the concept of domicile explained in para 1 of Annexure-C. Apart from this, it may also be a relevant criterion to see whether the child has been accepted and assimilated in the Scheduled Caste community to which; the father belongs.
2. The principle mentioned above would also apply to the case of an off-spring whose mother is a member of a Scheduled Caste and father of a Scheduled Tribe.
3. This is the general position of law. Each case, however, has to be examined in the light of the attendant facts and circumstances.
Download Railway Board Circular RBE No.102/1986
Forward reference ⇒ RBE No.