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In rare circumstances woman can acquire caste of husband: K’taka HC

Court was examining a case where a woman married to an ST man was removed from her position in the gram panchayat as the seat was reserved for an ST candidate

Sabrangindia 28 Mar 2022

Karnataka HC

The Karnataka High court has made a crucial observation with respect to a woman acquiring her husband’s caste that is likely to have a major impact on seat reservation for elections. The Single-judge Bench of Karnataka High Court comprising Justice Krishna S. Dixit, while hearing a Writ Petition (Archana MG V/s. Abhilasha & Ors.), observed that though caste is acquired by birth, in rare circumstances, a woman can acquire her husband’s caste.  

Facts of the case 

Petitioner, Archana MG is a Gram Panchayat member, contested election from a constituency reserved for Scheduled Tribe (ST) candidates. As contended by the Petitioner, she has acquired the said social status (of becoming a member of an ST) by getting married to a member of a Schedule Tribe.  

But her position as a member of Gram Panchayat, was challenged by Smt. Abhilasha on the ground of lack of social status in the Court of Additional Senior Civil Judge and JMFC, Shivamogga. The Court unseated her from her position in Gram Panchayat due to lack of social status i.e her not being born into an ST family herself. 

Being dissatisfied by the Civil Court Judgment, she filed a Writ Petition (Archana MG V/s. Abhilasha & Ors.) before the Karnataka High Court. The Petitioner contended that no fair opportunity was given to her by the Election Tribunal as the Petitioner had appeared by herself and sought time to engage a new advocate. Whereas it was brought to the Court’s notice that the case was adjourned three times as the Petitioner was concurrently absent for the hearing. 

Adv. Nithyananda appearing on behalf of Tahsildar and District Election Commission vehemently resisted the Writ Petition and also pointed out that in matters pertaining to election, equity and common law principles have no place by relying on the Judgment in Jyothi Basu V/s. Debi Prasad Ghosal, which stated, “An election petition is not an action at common law, nor an equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only to those rules which the statute makes and applies.” 

High Court Order 

Justice Krishna S. Dixit noted that there was no doubt that the Petitioner was not a member of Scheduled Tribe by birth although she claims to have acquired the Scheduled Tribe caste by marriage.  

The Court observed, “Ordinary, caste is determined by birth and caste of a person follows that of his/her father. That is why Mahabharath states: “daivaa yatnam kule janma, purushaa yatnam pourusham.” True it is in rare circumstances a lady acquires the caste status of her husband provided she pleads and proves her admission to the community of the husband by social acceptance. However, that is not the case put forth by the Petitioner in the Court below in her objections to election petition.”

The High Court observed that an elected representative of people cannot be so lenient in such matters and dismissed the said Petition on the grounds being devoid of merits.

The Order may be read here:

Reservation in elections

India is one of the most diverse countries in the world when it comes to ethnicity, community, religious background, castes and tribes. In fact, many people hail from historically oppressed communities and many other citizens have faced persecution and marginalization due to their gender, caste, faith etc.

Therefore, to protect the interests of such people, the 73rd Amendment of the Constitution of India was brought about in 1992. This Constitutional Amendment mandated far-reaching decentralisation by establishing a three-tier system of district-, block- and village-level councils. The gram panchayat (GP) is the lowest tier of local government at village level.

This Amendment gave new powers to the Gram Panchayats, provided that one-third of the seats in all Panchayat councils and also one-third of the Pradhan positions must be reserved for women. While reservations for SCs and STs are in place in other elected bodies (national and state legislative assemblies), the 73rd Amendment is the first one in India that mandated women’s reservation, and this made it a landmark piece of legislation.

A key feature of the reservation policy is the that the seats to be reserved were randomly allocated, which ensures that the only difference between reserved and unreserved villages is that some of them were picked to be reserved, while some were not. Reserved seats occupied by low-caste or tribal females have resulted in higher levels of investment in health and early education and more effort to implement redistributive land reforms and inheritance legislation favourable to women.

The court order in the context of reservations

According to the court’s order, the women who gets married to a person from the minority or protected group, needs to prove her admission to her husband’s community by social acceptance, and the same was needed to be pleaded in the Petition.

It could create new challenges if people from different constituencies come up with such an election petition questioning the legitimacy of elected women officials who have married into oppressed, marginalised or protected minorities despite not hailing from these communities by birth.

Impact of the Order

The case itself is special given how it involves a so called “upper caste” woman who married a man from a Scheduled tribe. In India, inter-caste and interfaith marriages are traditionally frowned upon and some have even ended in the “honour killing” of couples. Therefore, it is heartening to see a woman who has married into a different community now choose to enter public service to empower all people by adopting the identity of her husband’s community, something that has been traditionally found to be undesirable.

Moreover, this order may trigger a process of learning and revision of prejudices surrounding the capabilities of women and people from SC/ST groups. It has been seen that people who represent such special interest groups better serve their constituents by ensuring a more socially just and equitable distribution of resources so that all people grow and prosper, instead of just a privileged few.  Investments in building and maintaining key infrastructure in education and healthcare will help improve the quality of life for all people.

 

Related:

Gujarat HC rules on PASA Act, claims Preventive Detention untenable

Gauhati HC stays order to register FIR against Assam CM for inflammatory remarks about eviction drive

HC grants bail to former IPS officer Amitabh Thakur

 

In rare circumstances woman can acquire caste of husband: K’taka HC

Court was examining a case where a woman married to an ST man was removed from her position in the gram panchayat as the seat was reserved for an ST candidate

Karnataka HC

The Karnataka High court has made a crucial observation with respect to a woman acquiring her husband’s caste that is likely to have a major impact on seat reservation for elections. The Single-judge Bench of Karnataka High Court comprising Justice Krishna S. Dixit, while hearing a Writ Petition (Archana MG V/s. Abhilasha & Ors.), observed that though caste is acquired by birth, in rare circumstances, a woman can acquire her husband’s caste.  

Facts of the case 

Petitioner, Archana MG is a Gram Panchayat member, contested election from a constituency reserved for Scheduled Tribe (ST) candidates. As contended by the Petitioner, she has acquired the said social status (of becoming a member of an ST) by getting married to a member of a Schedule Tribe.  

But her position as a member of Gram Panchayat, was challenged by Smt. Abhilasha on the ground of lack of social status in the Court of Additional Senior Civil Judge and JMFC, Shivamogga. The Court unseated her from her position in Gram Panchayat due to lack of social status i.e her not being born into an ST family herself. 

Being dissatisfied by the Civil Court Judgment, she filed a Writ Petition (Archana MG V/s. Abhilasha & Ors.) before the Karnataka High Court. The Petitioner contended that no fair opportunity was given to her by the Election Tribunal as the Petitioner had appeared by herself and sought time to engage a new advocate. Whereas it was brought to the Court’s notice that the case was adjourned three times as the Petitioner was concurrently absent for the hearing. 

Adv. Nithyananda appearing on behalf of Tahsildar and District Election Commission vehemently resisted the Writ Petition and also pointed out that in matters pertaining to election, equity and common law principles have no place by relying on the Judgment in Jyothi Basu V/s. Debi Prasad Ghosal, which stated, “An election petition is not an action at common law, nor an equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only to those rules which the statute makes and applies.” 

High Court Order 

Justice Krishna S. Dixit noted that there was no doubt that the Petitioner was not a member of Scheduled Tribe by birth although she claims to have acquired the Scheduled Tribe caste by marriage.  

The Court observed, “Ordinary, caste is determined by birth and caste of a person follows that of his/her father. That is why Mahabharath states: “daivaa yatnam kule janma, purushaa yatnam pourusham.” True it is in rare circumstances a lady acquires the caste status of her husband provided she pleads and proves her admission to the community of the husband by social acceptance. However, that is not the case put forth by the Petitioner in the Court below in her objections to election petition.”

The High Court observed that an elected representative of people cannot be so lenient in such matters and dismissed the said Petition on the grounds being devoid of merits.

The Order may be read here:

Reservation in elections

India is one of the most diverse countries in the world when it comes to ethnicity, community, religious background, castes and tribes. In fact, many people hail from historically oppressed communities and many other citizens have faced persecution and marginalization due to their gender, caste, faith etc.

Therefore, to protect the interests of such people, the 73rd Amendment of the Constitution of India was brought about in 1992. This Constitutional Amendment mandated far-reaching decentralisation by establishing a three-tier system of district-, block- and village-level councils. The gram panchayat (GP) is the lowest tier of local government at village level.

This Amendment gave new powers to the Gram Panchayats, provided that one-third of the seats in all Panchayat councils and also one-third of the Pradhan positions must be reserved for women. While reservations for SCs and STs are in place in other elected bodies (national and state legislative assemblies), the 73rd Amendment is the first one in India that mandated women’s reservation, and this made it a landmark piece of legislation.

A key feature of the reservation policy is the that the seats to be reserved were randomly allocated, which ensures that the only difference between reserved and unreserved villages is that some of them were picked to be reserved, while some were not. Reserved seats occupied by low-caste or tribal females have resulted in higher levels of investment in health and early education and more effort to implement redistributive land reforms and inheritance legislation favourable to women.

The court order in the context of reservations

According to the court’s order, the women who gets married to a person from the minority or protected group, needs to prove her admission to her husband’s community by social acceptance, and the same was needed to be pleaded in the Petition.

It could create new challenges if people from different constituencies come up with such an election petition questioning the legitimacy of elected women officials who have married into oppressed, marginalised or protected minorities despite not hailing from these communities by birth.

Impact of the Order

The case itself is special given how it involves a so called “upper caste” woman who married a man from a Scheduled tribe. In India, inter-caste and interfaith marriages are traditionally frowned upon and some have even ended in the “honour killing” of couples. Therefore, it is heartening to see a woman who has married into a different community now choose to enter public service to empower all people by adopting the identity of her husband’s community, something that has been traditionally found to be undesirable.

Moreover, this order may trigger a process of learning and revision of prejudices surrounding the capabilities of women and people from SC/ST groups. It has been seen that people who represent such special interest groups better serve their constituents by ensuring a more socially just and equitable distribution of resources so that all people grow and prosper, instead of just a privileged few.  Investments in building and maintaining key infrastructure in education and healthcare will help improve the quality of life for all people.

 

Related:

Gujarat HC rules on PASA Act, claims Preventive Detention untenable

Gauhati HC stays order to register FIR against Assam CM for inflammatory remarks about eviction drive

HC grants bail to former IPS officer Amitabh Thakur

 

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