TMI Blog2005 (1) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in the High Court. The other two election petitions were allowed by the High Court upholding the challenge to the election of the appellant on the ground that the appellant was not qualified to contest from a constituency reserved for Scheduled Tribe candidates. Thus the election of the appellant was set aside. Aggrieved thereby, the appellant has filed these appeals under Section 116A of the Representation of the People Act, 1951. 2. The question that fell for decision before the High Court in the Election Petitions filed under Section 81 read with Section 100 of the Act and that falls for decision before us, is whether the appellant belongs to a Scheduled Tribe and hence qualified to contest the election from a constituency reserved for a Scheduled Tribe. According to the Election Petitioners, the appellant belonged to a forward community, Patnaik Sistu Karnam, while according to the appellant she belongs to the Bhagatha Community, which was a notified Scheduled Tribe. The High Court, on evaluation of the pleadings and the evidence adduced before it, came to the conclusion that the appellant was a Patnaik Sistu Karnam and was not a member of Bhagatha Community, a Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Election Petitioners, on the other hand, denied that Simhachalam had earlier married Ladda Appala Swamy as alleged by the appellant and also denied that Murahari Rao, her father, had earlier married Kalavathi as claimed by the appellant. They pleaded that Murahari Rao and Simhachalam were married and all the six children including the appellant were born to them in a lawful wedlock. The High Court, on the evidence, came to the conclusion that there was no evidence to establish that the mother of the appellant Simhachalam had earlier married Ladda Appala Swamy. It further held that even if there was any such marriage, the same must be taken to have been terminated before Simhachalam started living with Murahari Rao. The High Court held that Murahari Rao had married Simhachalam, the mother of the appellant, and six legitimate children were born to Murahari Rao and Simhachalam. Since a child took the caste of her father, the appellant had to be considered a Sistu Karnam and could not be considered to be a member of the Bhagatha Community. The High Court also held that the appellant had failed to establish that there was a marriage between Murahari Rao and Kalavathi as alleged by he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court, the pleadings and the evidence of the witnesses examined on either side with particular reference to the evidence of the appellant as RW-1, her father RW-2, her mother, RW-7 and RW-4, 8 and 10, Kalavathi, her brother and her father. On going through the evidence of these witnesses, we are inclined to agree with the conclusion of the High Court that there are enough admissions in the evidence of these witnesses which clearly go to prove that Murahari Rao and Simhachalam, the parents of the appellant, long cohabited together, begot children and were recognized as husband and wife by the community. This especially in the context of the documentary evidence adduced in the High Court which were again brought to our notice by learned counsel for the respondents. In short, we find that the finding of the High Court that Murahari Rao and Simhachalam were married and the six children including the appellant were born in that wedlock and that it was not possible to hold that there was only a concubinage and the six children including the appellant were born out of that relationship and out of wedlock is unexceptionable. Similarly, we also do not find much merit in the challenge to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so can be presumed to have been terminated especially in the context of the subsequent long cohabitation of Murahari Rao and Simhachalam and the evidence on the side of the appellant herself that the alleged marriage between Simhachalam and Ladda Appala Swamy was when Simhachalam was eight years old: that the said marriage was never consummated and that Simhachalam had left Ladda Appala Swamy immediately after marriage and had never lived with him. It is undisputed that divorce was permitted in the community. In this context the ratio of the decision in Raja Ram v. Deepa Bai, 1973 MPLJ 626 could be applied. Thus, on the whole, we agree with the finding of the High Court that there was a valid marriage between Murahari Rao and Simhachalam, the father and the mother of the appellant and that the appellant was a legitimate daughter of that union. 7. Learned counsel for the appellant, in spite of her efforts, could not show any serious flaw in the appreciation of evidence by the High Court while coming to the conclusion that there was a marriage between Murahari Rao and Simhachalam. Learned counsel could not successfully challenge the finding of the High Court that the appellant cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which her mother's family belongs. There is no reason for us to differ from the conclusion of the High Court on this aspect. Faced with this position, learned counsel for the appellant pitched her case on the fact that the appellant had married a person belonging to a Scheduled Tribe and had thereby acquired membership in that community and consequently, she must be treated as a member of the Scheduled Tribe. Learned counsel placed reliance on the decision of this Court in N.E. Horo v. Smt. Jahan Ara Jaipal Singh [1972]3SCR361, to contend that once a marriage of a male pertaining to a Scheduled Tribe with a female pertaining to a non Scheduled Tribe was approved or sanctioned by the concerned Panchayat, they became members of the community and even if a female is not a member of a tribe by virtue of birth, but she had been married to a tribal after due observance of all formalities and after obtaining the approval of the elders of the tribe, she would belong to the tribal community to which her husband belongs on the analogy of the wife taking the domicile of the husband. Learned counsel also referred to the decision in Valsamma Paul (Mrs.) v. Cochin University and Ors. [199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a tribal marriage were observed and the marriage was performed after obtaining the approval of the elders of the tribe. Even otherwise, we have difficulty in accepting the position that a non-tribal who marries a tribal could claim to contest a seat reserved for tribals. Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. The decision of this Court in Valsamma Paul (Mrs.) v. Cochin University and Ors. (supra), supports this view. Neither the fact that a non-backward female married a backward male nor the fact that she was recognized by the community thereafter as a member of the backward community, was held to enable a non-backward to claim reservation in terms of Articles 15(4) or 16(4) of the Constitution. Their Lordships after noticing Bhoobun Moyee v. Ram Kishore, (1865) 10 MIA 279, and Lulloobhov Bappoobhoy Cassidass Moolchund v. Cassibai, (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longing to a Scheduled Tribe. 11. What remains is the argument based on the certificates allegedly issued under The Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificate Act, 1993. The High Court has not accepted the certificates as binding for the reason that the evidence showed that the certificates were issued based on the influence exercised by the appellant as a member of the Legislative Assembly, one after another, immediately on an application being made and without any due or proper enquiry. We are impressed by the reasons given by the High Court for not acting on these certificates. That apart a reference to Section 3 of the Act would indicate that a certificate thereunder, insofar as it relates to elections, is confined in its validity to elections to local authorities and co-operative institutions. It does not embrace an election to the Legislative Assembly or to the Parliament. Therefore, in any view of the matter, it cannot be said that the High Court exercising jurisdiction under The Representation of The People Act in an Election Petition is precluded from going into the question of status of a candid ..... 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