In a marriage between a tribal woman and a forward caste man, the offspring will get tribal status if the child is brought up in the mother's environment and will be entitled to reservation, the Supreme Court has held.

Though earlier judgments of this court said that “in an inter-caste marriage between a tribal woman and a non-tribal, the woman must in all cases take her caste from the husband,” these were not binding precedents, said a Bench of Justices Aftab Alam and Ranjana Desai.

Writing the judgment, Justice Alam said: “To hold that the offspring of such a marriage would in all cases get his/her caste from the father is bound to give rise to serious problems.”

The Bench said it was unclear if the doctrine of Hindu customary law, based on Privy Council decisions, that the wife took the caste of the husband could be applied in the post-Constitution era to determine the caste of a child from an inter-caste or a marriage between a tribal and a non-tribal.

“Take for instance the case of a tribal woman getting married to a forward caste man and who is widowed or is abandoned by the husband shortly after marriage. She goes back to her people and the community carrying with her an infant or may be a child still in the womb. The child is born in the community from where her mother came and to which she went back and is brought up as the member of that community suffering all the deprivations, humiliation, disabilities and handicaps as a member of the community. Can it still be said that the child would have the caste of his father and, therefore, is not entitled to any benefits, privileges or protections sanctioned by the Constitution.”

In the instant case, Rameshbhai Dabhai Naika was born to a tribal mother and a forward caste father. His ST certificate was cancelled by the Scrutiny Committee in Gujarat on the ground that his father belonged to a forward caste. The Gujarat High Court upheld this order and as a result he lost the fair price shop that was allotted to him on the basis of the ST certificate.

Allowing his appeal against this judgment, the Bench said: “The High Court seems to have read the Supreme Court decisions as laying down the rule that in all cases and regardless of other considerations the offspring of an inter-caste marriage or a marriage between a tribal and a non-tribal would take his/her caste from the father” and the offspring would not be entitled to reservation.

What was important in these decisions that was not noted by the High Court was that if a tribal woman had raised her child as a member of that community, it would be treated as a tribal even though the father might have come from a forward caste. Whether and to what extent the Hindu customary law governed members of STs would depend on the extent to which the given tribe was Hinduised prior to the adoption of the Constitution of India, the Bench held.