Full Judgment Text
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PETITIONER:
N. E. HORO
Vs.
RESPONDENT:
JAHAN ARA JAIPAL SINGH
DATE OF JUDGMENT02/02/1972
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
BEG, M. HAMEEDULLAH
CITATION:
1972 AIR 1840 1972 SCR (3) 361
1972 SCC (1) 771
CITATOR INFO :
RF 1973 SC1406 (2)
ACT:
Representation of the People Act (43 of 1951), s. 123(2) and
(7)-Scope of.
Customary Law-Mundas-Marriage between Munda male and a non-
Munda-Whether wife becomes a Munda.
HEADNOTE:
The respondent, who was a Tamil by birth and Christian by
religion, had married a member of the Munda Schedule Tribe
in the State of Bihar. On the death of her husband, who was
a member of the Lok Sabha, she stood for election from a
Parliamentary (Schedule Tribe) Constituency in the State.
Another candidate B filed objections to her nomination that
she was not a Munda and her nomination was rejected by the
Returning, Officer, and the appellant was elected. She
filed an Election Petition for setting aside the election of
the appellant. She alleged that according to, the Munda
Customary Law when a Munda male married outside the tribe,
if his marriage was accepted by the tribe, he continued to
be a member of the tribe and his wife also acquired its
membership, and so, she became a Munda. In the petition it
was also stated that while hearing B’s objections the
Returning Officer allowed irrelevant personal aspersions to
be cast against her and that the Returning Officer had been
influenced by B. The High Court allowed the petition.
Dismissing the appeal to this Court, on the questions : (1)
Whether B. was a necessary party to the Election Petition;
(2) Whether the marriage of the respondent, who was a
divorcee, was a nullity under s. 57 of the Indian Divorce
Act, 1869, in that she married her Munda husband within. six
months from the date of the decree being made absolute; and-
(3) Whether the petitioner became member of the Munda
Tribe,
HELD : (1) According to s. 82(b) of the Representation of
the People Act, 1951, a petitioner must join as a respondent
any candidate against whom allegations of any corrupt
practices are made in the election petition. Section 123
deals with corrupt practices. The essential ingredient of s.
123(7) on which reliance was placed, is to obtain, procure
etc. by a candidates of any assistance (other than the
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giving of a vote)for the furtherance of the prospects of
that candidate’s election from any person in the service of
the Government and belonging to the classes. mentioned in
the sub-section. In the present case, there was absolutely
no allegation or suggestion that the Returning officer was
influenced by B for the purpose of rendering assistance for
the furtherance of the prospects of a candidate’s election.
The influence, mentioned in the election petition, had
reference only to the conduct of the Returning Officer is
allowing personal aspersions to be cast against the
respondent. The allegations do not also amount to any
suggestion of direct or indirect interference or attempt to
interfere on the part of a candidate with the free exercise
of any electoral right, and hence, do not amount to undue
influence under s. 123(2). Therefore, since there was no
allegation of any corrupt practice against B be was not a
necessary party. [366 D-H;368 A-G]
362
2 The respondent had contracted a marriage
with a Member of the Munda Tribe according to
Munda rites and ceremonies and not as one
,Christian marrying another Christian. In the
absence of any pleadings .Or issues or
material on record to show that in view of the
provision, of Is. 57 of the Indian Divorce Act
there could not be a valid marriage ,a
ccording
to Munda customary law, such a contention
could not be allowed to be agitated for the-
first time in this Court. [369 D-G]
3(i) The information contained in
authoritative books dealing with Munda
Customary Law and the evidence of witnesses
who had made special research in the matter,
show that : (a) The Mundas are endogamous and
intermarriage with non-Mundas is normally
prohibited; (b) A Munda male along with his
family, on marrying a non-Munda girl, is often
excommunicated or outcasted; (c) the
rule of endogamy is, however, not so rigid
that a Munda cannot marry a non-Munda even
after performing special ceremonies; (d) Such
marriages have been and are being sanctioned
by Parha Panchayat, and (e) Where a Munda male
and his family are outcasted for marrying a
non-Munda they are readmitted .to the tribe
after certain special ceremonies are
performed. [376 C-F]
In the present case, there is no evidence that
the deceased husband of the respondent was ex-
communicated or outcasted because he had
married a non-Munda; on the contrary, the
evidence is that the rule of endogamy has not
been observed in a rigid or strict form, and
that the marriage was accepted as valid and
was approved by the Parha Panchayat and the
elders of the Tribe. Once the marriage of a
Munda male with a non-Munda female is approved
or sanctioned by Parha Panchayat they become
members ,of the community. The contention
that a person can be a Munda by birth alone
can be sustained only if the custom of
endogamy is established with,out any
exception. [377 A-D]
(ii) Munda is one of the specified tribes or
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tribal communities in the ’Schedule to the
Constitution (Schedule Tribes) Order 1952.
The term ’tribal community’ is of wider
connotation than the expression ’tribe’. A
"person who, according to the strict custom of
a tribe, cannot be regarded ,as a member of
that tribe may be regarded as a member of that
tribal community. Where a non-Munda woman is
married to a Munda male and the marriage is
approved and sanctioned by the Pahra Panchayat
of that tribe, and the marriage is valid, she
may not, on the assumption that ’the rule of
endogamy prevails, become a member of the
Munda tribe in the stick sense as not having
been born in the tribe. But a marriage
between a Hinduised Munda and a Munda
converted to Christianity is permitted. That
being so, the wife cannot be excluded from the large
r group, namely, the tribal community.
In the present case the respondent’s manage
with a Munda male having been approved and
sanctioned by the Pahra panchayat of the Munda
tribe, it can be said that she became a member
of the Munda tribal community. When a person,
in course ,of time, has been assimilat
ed into
the community that person cannot be denied the
rights and privileges which may be conferred
on that community, even though tribal, by
Constitutional provisions. [377 E, H; .378 A-
El
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 909 of 1971.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated May 21, 1971 of
the Patna High Court in Election Petition No. 2 of 1970.
363
Frank Anthony, A. T. M. Sampath and E. C. A Agrawala, for.
the appellant.
L. M. Singhvi, Basudeva Prasad, Ravinder Narain and P. C.
Bhartari, for the respondent.
The judgment of the Court was delivered by
Grover, J. This is an appeal from a judgment of the Patna
High Court holding that the nomination papers of the
respondent Smt. Jahan Ara Jaipal Singh had been illegally
rejected by the Returning Officer. For that reason the
election of the returned candidate Shri N. E. Horo from the
51 Khunti Parliamentary (Scheduled Tribe) Constituency in
the State of Bihar was set aside.
On May 1, 1970 the Election Commission of India issued a
notification calling upon the above-named Parliamentary
Constituency to elect a Member to the Lok Sabha in the
vacancy caused by the death of late Shri Jaipal Singh. The
last date for filing the nomination papers was May 8, 1970.
The date for scrutiny was May 9, 1970. Several persons
filed nomination papers including Theodore Bodra and others.
Two nomination, papers were filed on behalf of the
respondent who was a Congress (Ruling) candidate for the
aforesaid by-election. According to the respondent she was
the widow of late Shri Jaipal Singh and was a member of the
Munda Scheduled Tribe in the State of, Bihar. She filed
certain certificates to that effect. Bodra filed an
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objection petition to the nomination papers of the
respondent. The Returning Officer, after hearing arguments,
passed an order rejecting the nomination papers of the
respondent. The nomination papers of all the other
candidates were accepted. After the polling took place, the
result of the election was announced on June 3, 1970 and the
appellant Shri Horo was declared elected to the Lok Sabha.
On July 8, 1970 the respondent filed an, election petition.
In the election petition it was stated inter alia that the
petitioner (who is now respondent before us) was the widow
of Late Shri Jaipal Singh and belonged to the Munda
Scheduled Tribe although she was a Christian by religion.
It was averred in paragraph 3 of the petition that according
to the Munda Customary Law when a Munda male married outside
the Munda Tribe if his marriage is accepted by the Tribe he
continues to be a member of that Tribe and his wife also
acquires its membership. It was pleaded that the wife being
a member of her husband’s family had the right of succession
to her husband’s property as well. In para 4 of the
petition it was stated that the petitioner was a Tamil by
birth. She married late Shri Jaipal Singh in the year 1954
364
according to the rights and rituals of Mundas in the
presence of Parha Raja, Parha Munda, Parha Pahan, relatives
of the deceased and the members of the Tribe at Morabadi a
Mohalla of Ranchi. In paragraph 5 the ceremonies which were
performed according ’to Munda custom were mentioned. These
ceremonies inter alia were the washing of the wife’s feet by
the elder sister of the husband and the holding of the feast
of the male goat meat and drinks of Handia etc. A new name
was given by her mother-in-law to the petitioner, that name
being Lankashri. All these functions were witnessed by
Parha Raja, Parha Munda, Parha Pahan and other members of
the Tribe. In paragraph 6 more details were given of the
various other ceremonies also which were performed in
connection with the marriage. After referring to the
relevant provisions of the Representation of People Act
1951, hereinafter called the ’Act’, it was stated that the
Returning Officer had illegally allowed irrelevant personal
aspersions to be .cast against the petitioner by her
opponents. It was alleged that the Returning Officer had
been influenced by Bodra who was the Chairman of the Bihar
Legislative Council. The decision of the Returning Officer
that the status of a Munda could be acquired only by birth
and not by marriage and that the petitioner did not belong
to the Munda Scheduled Tribe was challenged principally on
the ground that the Returning Officer had not considered the
custom by which if a Munda male marries a women not
belonging to Munda Tribe and that is accepted by the Tribe
the wife acquires the membership thereof.
In his written statement the returned candidate Shri Horo
maintained that even though the election petitioner might be
iving as wife of late Shri Jaipal Singh she was never
married in accordance with the custom of the Munda Tribe
prevalent in Chhota Nagpur. It was denied that she was ever
accepted as a member of the Munda community as no such
custom is prevalent in that community. It was denied that
the ceremonies and rituals mentioned in the election
petition had been performed in respect of the marriage of
the election petitioner with the late Shri Jaipal Singh. In
paragraph 25 of the written statement it was asserted that a
non-Munda merely by virtue of the marriage with a Munda
could not ipso facto become a Munda. If a person was not
born of a father belonging to a Scheduled Tribe he or she
could not legally claim to be a member of the said Tribe.
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It was asserted that since the election petitioner was not
the daughter of a member of the Munda Tribe she could not
claim to be a member of that Scheduled Tribe. The
allegations of mala fides made against the Returning Officer
were described as baseless and extraneous.
During the pendency of the election petition the Lok Sabha
was dissolved on December 27, 1970. A petition was filed
365
before the High Court on behalf of Shri Horo that the
election petition should be dismissed as having become
infructuous. The court made an order on January 14, 1971
holding that the election petition could not be dismissed on
that ground.
On the pleadings of the parties seven issues were framed.
Issues 1, 2 and 3 which are material need be mentioned.
(1) Is the election petition maintainable ?
(2) Whether the petitioner was the legally married wife of
late Shri Jaipal Singh according to the custom of Munda
Tribe prevalent in Chhota Nagpur ?
(3) Whether the petitioner could legally acquire the status
of a Munda by virtue of her marriage to late Shri Jaipal
Singh and whether she had been accepted as a member of the
Munda Tribe by the said Tribe ?
It may be mentioned that so far as issue No. 1 was concerned
the objection taken was that the election petition was
defective on account of the non-joinder of necessary
parties. When the election petition was filed only Shri
Horo the returned candidate was impleaded but subsequently a
petition was filed on behalf of the election petitioner
making a prayer that the other contesting candidates were
also necessary parties and should be impleaded. The court
directed that they be added as parties. Shri Bodra who was
one of the contesting parties was consequently impleaded as
a party. Later on it was prayed on behalf of the petitioner
that on a further consideration it was found that the
persons who had been subsequently added were not necessary
parties and their names might be deleted. Bodra’s name was
therefore deleted. The argument raised before the High
Court was that Bodra being a necessary party to the petition
under cl. (b) of s. 82 of the Act the petition became
defective as soon as his name was struck off at the instance
of the election petitioner. The High Court was of the view
that although in paragraph 21 of the election petition an
allegation had been made that Bodra had influenced the
Returning Officer, no evidence was led on that point and the
case of the election petitioner was based solely on the
ground that the nomination paper had been illegally and
improperly rejected. No relief had been sought on the
ground that undue influence had been exercised on the
Returning Officer by Bodra. The High Court was also of the
view that the allegation made in the election petition that
Bodra had exercised his influence in getting the nomination
paper of the election petitioner rejected did not fall
within the ambit and scope of sub-s. (7) of s. 123 of the
Act. The contention that the petition was not maintainable
was consequently rejected.
On the main issues, namely (2) and (3) it was expressly
stated in the judgment that the factum of the marriage of
the elec-
366
tion petitioner with the late Shri Jaipal Singh had not been
disputed. The real controversy between the parties in the
High Court centered round the point whether the marriage was
in such form that the wife acquired the membership of the
Tribe. According to the arguments on behalf of Shri Horo as
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the election petitioner was not a Munda she could not belong
to the Munda Tribe and that by marriage such a status could
never be acquired. The High Court examined the evidence
relating to the question whether the marriage of the
election petitioner with late Shri jaipal Singh had been
performed in accordance with the Munda custom and was in
such form that she was accepted and treated as a member of
the Munda Tribe. The court also considered the various
authoritative books and other works relating to the Mundas
and came to the conclusion that on a survey of the entire,
evidence and the circumstances there was no reason to
discredit the evidence which had been led on behalf of the
petitioner that she was married according to the Munda
custom and that it was with the approval and sanction of the
Tribe that she had been accepted as a member of the Munda
tribe.
The first contention raised by Mr. Frank Anthony on behalf
of the appellant relates to issue No. 1. It has been
maintained by him that Bodra was a necessary party. Apart
from the fact that he was the only person who had filed a
written objection to the nomination of the respondent the
election petition filed by the respondent contained serious
allegations of corrupt practice against Bodra. As he had
been given up as a party although impleaded at one stage the
petition became defective and was not maintainable.
According to clause (b) of s. 82 of the Act the petitioner
must join as a respondent any candidate against whom
allegations of any corrupt practices are made in the
petition. Section 86(1) provides that the High Court shall
dismiss any election petition which does not comply inter
alia with the provisions of s. 81.
There can be little doubt that if the allegations made in
the election petition against Bodra amounted to the
commission of a corrupt practice by him it was obligatory on
the part of the election petitioner to join him as a
respondent to the petition. It is equally clear that in
that event the petition would have become liable to
dismissal. For finding out what a corrupt practice is we
have to turn to s. 123 of the Act. According to Mr. Anthony
the allegations made against Bodra fell within sub-s. (7) of
s. 123 which is in the following terms :
S. 123 "The following shall be deemed to be corrupt,
practices for the purposes of this Act:--
367
.lm15
(7) The obtaining or procuring or abetting or attempting to
obtain or procure by a candidate or his agent or, by any
other person with the consent of a candidate or his election
agent, any assistance other than the giving of vote for the
furtherance of the prospects of that candidate’s election,
from any person in the service of the Government and
belonging to any of the following classes, namely :-
(a) gazetted officers;
(b) stipendary judges and magistrates;
(c) members of the armed forces of the Union:
(d) members of the police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers
known as lambardars, malguzars, patels, deshmykhs or by any
other name, whose duty is to collect land revenue and who
are remunerated by a share of, or commission on, the
amount of land revenue collected by them but who do not
discharge any police functions; and
(g) such other class of persons in the service of the
Government as may be prescribed.
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Explanation(1) In this section the expression "agent"
includes an election agent, a polling agent and any person
who is held to have acted as an agent in connection with the
election with the consent of the candidate.
(2) For the purposes of clause (7) a person shall be deemed
to assist in the furtherance of the prospects of a
candidates’s election if he acts as an election agent of
that candidate".
The allegations against Bodra are contained in para 21 of
the election petition which may be set out :
"That the Returning Officer, while hearing the
objections illegally allowed irrelevant
personal aspersions to be cast against the
petitioner by her opponents and the aforesaid
Shree Theodore Bodra even after protests made
by and on behalf of the petitioner, Shrimati
Jahanara Jaipal Singh, against the same’.
plain reading of the above paragraph shows that no such
alletion was made that Bodra had influenced the Returning
Officer
I-L887 Sup CI/72
368
for the purpose mentioned in S. 123(7) of the Act. The
essential ingredient of that provision is to obtain, procure
etc. by a candidate of any assistance (other than the giving
of a vote) for the furtherance of the prospects of that
candidate’s election from any person in service of the
Government and belonging to the classes mentioned in the
sub-section. There is absolutely no allegation or
suggestion in para 21 that the Returning Officer was
influenced by Bodra for the purpose of rendering assistance
for the furtherance of the prospects of the election of any
candidate. All that has been stated in that paragraph is
that while hearing the objection the Returning Officer
allowed irrelevant personal aspersions to be cast against
the election petitioner by her opponents and Bodra. It was
further stated that on inquiry the election petitioner came
to learn that the Returning Officer had been influenced by
Bodra. This influence apparently can have reference only to
the conduct or act of the Returning Officer in allowing
personal aspersions to be cast against the election
petitioner. Even by stretching the language it is not
possible to discover any of the ingredients which would
constitute a corrupt practice under s. 123(7) of the Act.
Faced with this situation Mr. Anthony sought to rely on sub-
s. (2) of S. 123 the relevant part of which is as follows :
"(2) Undue influence, that is to say, any
direct or indirect interference or attempt to
interfere on the part of the candidate or his
agent, or of any other person with the consent
of the candidate or his election agent with
the free exercise of any electoral right:
Provided that--"........"
It is not possible to comprehend how the allegation
contained in para 21 can be understood to amount to a
suggestion of direct or indirect interference, or attempt to
interfere on the part of the candidate etc. with the free
exercise of any electoral right. We are accordingly
satisfied that no allegation of any corrupt practice had
been made in the election petition against Bodra and
therefore he was not a necessary party within S. 82 of the
Act. In this view of the matter it is not necessary to
examine the criticism of Mr. Anthony of that part of the
judgment of the High Court according to which one of the
reasons given for deciding issue No. 1 in favour of the
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present respondent was that no relief had been sought on the
ground that undue influence had ’been exercised on the
Returning Officer by Bodra and that no evidence was led on
that point.
On issues 2 and 3 Mr. Anthony has raised three main points
The first was that the respondent who was a Christian by
birth, was a divorcee and according to her own statement the
decree
369
nisi in the divorcee proceedings had been made absolute on
May 6, 1954. According to her she got married to late Shri
Jaipal Singh on May 7, 1954. This marriage was a nullity as
under s. 57 of the Indian Divorce Act 1869 she could not
enter into a second marriage until after the expiry of six
months from the date the decree had been made absolute.
Secondly the High Court had palpably erred in holding that
the respondent had become a member of the Munda tribe by
marrying Shri Jaipal Singh and set aside the order of the
Returning Officer who had held that she was a Christian by
birth and Munda tribe being an ethnic group its membership
could not be acquired by marriage but could be acquired only
by birth. Thirdly it has been strongly urged that the
respondent failed to prove the custom that a non-Munda could
be initiated into tribe as its full fledged member either by
performance of certain rituals and ceremonies or by the
acceptance as such by the tribe or its panchayat.
As regards the first point it was never canvassed or argued
before the High Court. No plea was taken by Shri Horo in
the written statement that there could be no valid marriage
between the respondent and late Shri Jaipal Singh owing to
the provisions contained in s. 57 of the Indian Divorce Act
1869 until after the lapse of. a period of six months from
the date the decree of divorce was made absolute. None of
the issues which was framed by the High Court involve the
question now sought to be agitated based on the provisions
of s. 57 of the Indian Divorce Act. It appears that
advantage is sought to be taken from the statement of the
respondent about the various dates when the decree absolute
was granted and the date when the marriage took place
between the respondent and the late Shri Jaipal Singh. In
the absence of any pleadings or issues no material has been
placed on the record to show that in view of the provisions
of S. 57 of the aforesaid Act there could not be a valid
marriage according to the Munda customary law. It must be
remembered that the respondent contracted a marriage with
late Shri Jaipal Singh according to Munda rites and
ceremonies and not as one Christian marrying another
Christian. Nor was the matter pursued in cross-examination
of the respondent and she was not asked as to how she could
get over the bar of S. 57 in theway of remarriage before
the expiry of the prescribed period.In these circumstances
we do not consider that such a pointcan be allowed to be
agitated for the first time before this Court.
On the second and the third points, a great deal of reliance
has been placed on the following statement in the well known
book of S. C. Roy "Mundas and their country", 1912 Edn.
"The Munda tribe is divided into a large
number of exogamous groups called kilis.
According to
370
Munda tradition, all the members of the same
Kili are descended from one common ancestor.
But such a tradition may not be quite correct
with regard to the original kilis. Though
exogamous as regards the kilis, the Mundas are
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endogamous so far as other tribes are
concerned. Thus, there can now be no valid
marriage, according to Munda custom, between a
Munda and the member of any other ’kolarian’
tribe, such as the Santals, the Kharias the
Asurs, or the Bir-hors".
According to Roy the family came to be evolved from tribes
and sub-tribes. Communal marriage was superseded by the
individual marriage and Matriarchal Age was superseded by
Patriarchal. Kinship came to be traced not as before,
through a common female ancestor but through a male
ancestor. D. N. Mazumdar in his work on the Ho tribe
entitled "Affairs of a Tribe", 1950 Edn. points out that the
rule of endogamy has its base in superstitious belief.
According to him villages which are closely allied by ties
of marriage are those which share the same God and Spirits
and the same Deonwa. The influence of Deonwas, in other
words, the knowledge of the Bongas of an area, determines
the limit of exogamy, for there is a risk in marrying in
villages the Bongas of which are unknown; (pp. 237-238).
From the account given by S. C. Roy himself it appears that
according to the Munda custom the rule of endogamy is not
absolute; for instance, in the case of Munda female married
or unmarried found to have gone astray with a man of a
different caste or tribe, it is said, that the latter is
summoned before a Panchayat and a heavy fine is imposed on
the lover and the fine, if realised, is paid as compensation
to the parents of the seduced maiden or the husband of the
married female and the seducer is compelled to take the girl
or woman as a wife or a mistress and in case of refusal
(which is rare) to submit to the orders of the Panchayat.
The family of the seduced female remains outcaste until a
purificatory ceremony is performed and thus restored to
caste. The members of the family then cook rice. and pulse
and themselves distribute the food to the assembled
relatives; (see pp. 544-545.)
The question that has to be enquired into is whether the
strict rule of endogamy of the Munda tribe has been deviated
from and whether custom has sanctioned such deviation. D.
W. Mazumdar in his work "Races and Cultures of India" deals
with tribal organisations in Chapter 17. According to him
the definition that is found in the current literature on
the subject is given in the Imperial Gazetteer which is, "A
tribe is a collection of families bearing a common name,
speaking a common dialect occupying or professing to occupy
a common territory and is
371
not usually endogamous though originally it might have been
so". Endogamy is an essential feature of the tribe though
intertribal marriages are breaking the limits of endogamy.
It is further stated by him that "the importance of the
blood bond or the kinship group is forced to the background,
the communal economy of the clan is superseded by individual
desire for gain and property, money assumes an importance it
seldom had before, and the ties of reciprocity and mutuality
of obligation are reoriented to suit new conditions. Tribal
custom and practices which established social life lose
their value and the choice of ’leader and of mate is guided
by different considerations". The Munda tribe cannot be
said to be immune from the above process of change in their
social Organisation. Changes in their belief, customs,
traditions and practices have taken place under the in-
fluence of Hinduism, Christianity, and on account of the
impact of western education, urbanisation, industrialisation
and improved means of communication. The sense of
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individualism and lack of love for, the traditional code of
conduct and social taboos ,ire stated to be apparent among
the emerging urban-industrial oriented adivasi communities.
D. N. Mazumdar has made an intensive study of the rule of
endogamy among the Ho tribe which is an off-shoot of the
Munda tribe. A reference to, the Ho practice may,
therefore, help us in understanding the practice among the
Mundas. According to D. N. Mazumdar "A Ho does not marry
outside the tribe as a rule but there is today no legal or
social prohibition against his doing so. Though tribal code
has relaxed considerably those who work in the mining and
industrial centers in and outside Kolhan contract such
alliances and when they come back to their villages they are
not outcasted by the society;" (pp. 124125, "Races and
Cultures of India"). At another place he records :-
"The endogamy of the tribe is not sacred
today, with the result that many marriages
have taken place between the Hos and other
tribes. Liaison between Diku men and Ho girls
is increasing, and cases that have occurred in
Chaibassa during the last ten years or so
would fill a volume. Thus, there being no
longer ,my deterrent to mating with strangers,
social authority vested in the Killi punch has
to exercise its prerogative to ensure a
compliance with social traditions. Killi
exogamy has not led to an indiscriminate
alliance between the different killis and as
far as our knowledge goes, taboo on marriage
outside a particular local area can be traced
to a dread of unfamiliar Bongas, who were
conceived as hostile,. and therefore
dangerous". (p. 236).
372
L. P. Vidyarthi in his work mentioned before based on his
study of the social life of the Oraon and Munda tribes
living in the city of Ranchi points out that a good number
of cases of marriage between tribals and non-tribals have
occurred and that in his investigation he came across 53
cases of non-tribal males marrying tribal girls. He points
out that greater percentage of love marriages and marriages
by ’Kept’ have been socially disapproved while 83.3% and 100
% of arranged and legal (civil) marriages have been
approved. (See pages 102-103).
We may how deal with the evidence produced by the parties on
the above points. P.W. I who was working as District Wel-
fare Officer in May 1970 at Ranchi and who belongs to the
Munda tribe stated that if a Munda male married a non-Munda
girl and such marriage was accepted by the society it would
be a valid and proper marriage. The wife would, therefore,
be accepted as a member of the tribe. He had himself
married an Oraon girl and his wife though a non-Munda has
been accepted as a member of the Munda tribe. He further
deposed that if the Munda married a non-Munda a feast is
given and if the elders of the society accept the marriage
and participate in the feast that by itself would show that
the tribal society has accepted the marriage and the wife
has become a member of the tribe. P.W. 2 who is a nephew of
the late Shri Jaipal Singh gave details of the ceremonies
which were performed when the marriage between his uncle and
the respondent took place. After the performance of those
ceremonies the members of the tribe and the family declared
that the respondent had been accepted as a member of the
tribe. He himself is married to a non-Munda girl though he
was married according to Munda marriage rights as well as
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according to Hindu law. P.W. 3 who was at the material time
working as Assistant Director in Sociology, Bihar Tribal
Welfare Institute, stated that he had been doing research on
the subject of Bihar Tribal Marriage and Family
Transformation with special reference to Family law. One of
his major duties was to ascertain from the members of
different tribes facts relating to the subject of his
research. According to his evidence a Munda male can marry
a non-Munda girl. After adopting a special procedure in
some cases a non-Munda wife is accepted as a member of the
tribe. A certain procedure or formality has to be gone
through. The council of elders of the tribal people has to
be consulted and the special reason for the marriage is to
be stated. Then various rituals are gone through and the
marriage is allowed by the elders. He gave instances where,
a Munda male had married a non-Munda girl and their marriage
had been accepted by the tribal people. One of these
instances given by him related to persons belonging to the
Santhals and Ho tribes. He maintained that the customs
prevalent among these tribes were broad-
373
ly the same as among the Mundas. In cross-examination he
stated that he had met the members of the Munda elder
council and he had remained in touch with that council since
1952. He had made special research of Jojo Hatu which was a
Munda village. He claimed to have submitted a report to the
government in which he had collected hundreds of cases where
a girl of a particular tribe had married outside her tribe.
P.W. 4 was the Superintendent of the Anthropological Survey
of India, Ministry of Education. As an Anthropologist he
had to undertake full study in different parts of India
mostly among the tribal community. He had studied Munda
tribal custom which assignment had been given to him in
1965-66. In course of the research he found that a Munda
could marry a non-Munda girl even before 1954. He gave
three kinds of unusual marriages one of which was where a
Munda male married a non-Munda female. The social
consequences of that marriage was called Jati Bora. That
meant that the Munda male had committed an offence against
the whole community. Normally he would be ostracised along
with his family but there was a process by which he and his
wife could be admitted into the community. This process was
known ’Niyar’ which means "to bring in or take in". The
offending party invites the members of the Parha gives them
a feast at which a white goat is sacrificed and the blood is
smeared on the body of the boy and the girl along with
Tarmolik and then they are allowed to sit along with the
members of the community in the same Pankti. After that
they are formally considered as members of the community.
He was specifically asked a question with regard to the
manner in which a Munda boy marrying a non-Munda girl would
be accepted by the community and his reply was that in his
opinion the Parha was the ultimate authority in the matter
of acceptance of a non-Munda girl in the community. If a
Parha accepted her that was final. in cross-examination he
stated that if a marriage of the nature under discussion is
not approved by Parha he did not think it would be accepted
by the members of the society. It may be mentioned that the
evidence of this witness has been subjected to a good deal
criticism by Mr. Anthony for the reason that he was only
expressing an opinion on the last matter and was not making a def
inite statement of fact. P.W. 5, who was attached to
the office of the Deputy Commissioner, Palamau, gave an ac-
count of the ceremonies which were performed of the marriage
between the respondent and late Shri Jaipal Singh.
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According to him the elders of the community unanimously
decided that since permission had been given by the elders
they would be taken as members of the tribe. He denied the
suggestion that it was on account of the influence of late
Shri Jaipal Singh that Pahans had given sanction to the
marriage. According to him there had been other cases also
where such sanction had been given.
374
P.W. 8 who claimed to be a Parha Raja of three Parhas, viz.,
Takara Parha, Sada Parha and Sagha Parha comprising 36 vil-
lages also gave evidence about the ceremonies which were
performed at the marriage of late Shri Jaipal Singh with the
respondent. After the performance of the ceremonies the
Samaj of the Munda tribe accepted the marriage, according to
him. He deposed to other instances where Munda had married
non-Mundals. He had attended a marriage of a Munda who had
married a Ho girl. Sanction was given by the elders to that
marriage. It is unnecessary to refer to the evidence of
P.W. 10 who is also a Pahan and who claimed to have been
present at the time of the marriage in question. He made a
statement which has been subjected to justifiable criticism
by Mr. Anthony about the document Exht-3. His evidence,
therefore, does not deserve consideration. Out of the
witnesses examined on behalf of the respondent mention may
be made of the statement of Shri Horo himself who appeared
as R.W. 6. After stating that the late Shri Jaipal Singh who
was a leader of the Jharkhand Party and was an Adivasi and a
Munda professing the Christian religion, he affirmed that
the respondent did not have the right and status of a Munda
on the basis of established custom. He admitted that there
was a custom that a Munda who had been excommunicated from
the tribe could be taken back but according to him that
person must be a Munda and no non-Munda could be accepted as
a member of the tribe. The Munda could of course marry a
non-Munda but in the manner in which the Munda usually
married a Munda. The custom among the Mundas is changing
and it is dynamic and not static. The other witnesses
produced by Shri Horo are not impressive and do not afford
much assistance in deciding the points under discussion.
According to- the observations of the High Court Shri Horo
did not examine any witness on his behalf who could say that
he had made a special study and research of the marriage
custom of the Munda tribe and that such a marriage was not
acceptable in the present times in spite of all the changes
which have taken place in the life and social structure of
the community owing to the impact of the various factors
which have been mentioned in the authoritative studies of
eminent Anthropologists mentioned before.
Our attention ha,, been drawn by Mr. Anthony to certain
decisions for the proposition that in a tribe which is
endoganotus birth alone can confer the status of membership
of the tribal community. In V. V. Giri v. D. Suri Dora &
Others(1) one of the, questions raised, was whether
respondent No. 1 in that case had ceased to be a member of
the Schedule Tribe at the material time because be had
become a Kshtriya. This court observed that it
(1) 21 E. T. R. 188.
375
was essential to bear in mind the broad and recognised
features of the hierarchical social stricture prevalent
amongst the Hindus. It was considered enough to state that
whatever might have been the origin of the Hindu castes and
tribes in ancient times, gradually status came to be based
on birth alone. It was pointed out that a person who
belonged by birth to a depressed caste or tribe would find
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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. We are unable to
see how this case can be of any assistance in deciding the
matter before us, namely, whether a non Munda can by
marriage be recognised as a member of the Munda tribe in
certain circumstances.
The High Court, after discussing the evidence and referring
to other authoritative books like "Tribes and Castes of
Bengal" by H. H. Risley and "Encyclopedia Mundarica" by
Rev. John Hoffman as also the statement in Encyclopedia
Britannica, Vol. 15, and the Encylopaedia of Religion and
Ethics by James Hastin ings, Vol. IX, apart from the work
of J. Reid, I.C.S., on Chhota Nagpur Tenancy Act, observed
that although originally very severe restrictions were
imposed amongst the Mundas as far as marriage in their own
Kili or seat was concerned, the process of Munda
assimilation to the larger Indian society facilitated by im-
proved communications and the introduction of formal system
of education was being accelerated under the independent
Government of India. In Encyclopedia Britannica, Vol. 15 in
the Chapter relating to Mundas it is also mentioned. "The
Munda speaking people, with the other Indian tribal groups,
are being encouraged to adopt new customs and to become
fully participating members of Indian society". (page 991).
Similarly in the Encyclopedia of Religion and Ethics by
James Hastings, Vol. IX, it has been stated as to how Munda
customs are being changed with the impact of the influence
of Christianity. Referring to the Chapter in Reid’s book
it has been noticed by the High Court that according to the
Munda conception a wife becomes a member of the Kili of her
husband by legal fiction. The High Court further relied on
the decision in Wilson Reads v. C. S. Booth(1) in which it
was held that the question whether a person can be regarded
as a member of the Khasi tribe was a question of fact
depending upon the evidence produced in the case. It was
said that the whole object of reserving a seat for a
particular tribe was to afford the community, ;is a whole, a
right of representation and therefore the question of the
membership of a particular individual of that community
could not be considered divorced from the very object of
legislation. Thus the conduct of the community which had
been given the right of special representation. the manner
and how the
(1) A. T. R 558 Assam 128
376
community regarded a particular individual and whether the
community as a whole intended to take the individual within
its fold were all matters which would be relevant for
consideration of the question whether a particular person
could be regarded as a member of the-Scheduled Tribe. The
High Court was alive to the fact and this point of
distinction has been greatly emphasised by Mr. Anthony-that
in that case the appellant claimed to be a Khasi, his father
being a European and his mother a member of the Khasi tribe.
Even though the facts were different, the approach in such
matters which commended itself to the Assam High Court can
hardly be regarded as unsound.
It appears to us, on a full consideration of the entire
material. that the following matters stand established in
the present case :--
(1) The Mundas are endogamous and inter-
marriage with non-Mundas is normally
prohibited.
(2) That a Munda male along with his family on
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marrying a non-Munda girl is often ex-
communicated or outcasted.
(3) That the rule of endogamy is not so rigid
that a Munda cannot marry a non-Munda after
performing special ceremonies.
(4) That such marriages have been and are
being sanctioned by the Parha Panchayat.
(5) That where a Munda male and his family
are’ outcasted for marrying a non-Munda they
are admitted to the tribe after certain
special ceremonies are performed.
Even in the account given by S.C. Roy as well as by P.W. 4 a
Munda male is excommunicated for marrying a non-Munda girl
but such excommunication is not automatic. It is left to
the discretion of the panchayat. If the panchayat approved
of a particular marriage with a non-Munda then no question
of excommunication arises. Thus several inroads appears to
have been made on the rigid system of endogamy which might
have existed at one time but over the course of years
several matters are left to be decided by the panchayat or
elders of the tribe itself. There is no evidence whatsoever
that the late Shri Jaipal Singh was excommunicated or
outcasted because he had married a non-Munda. On the
contrary there is abundant evidence that his marriage was
accepted as valid and was approved by the Parha Panchayat or
the elders of the tribe.
Reverting to the argument that a non-Munda women cannot
become a member of the Munda tribe by marriage even if the
377
marriage be valid because the Mundas are a patriarchical
society and constitute an ethnic group, we have already
referred to the evidence of the witnesses produced by the
respondent who had made, special research in the matter and
even if we exclude the opinion of P.W. 4 who was
Superintendent of Anthropological Survey of India that the
Parha was the final authority in the matter of acceptance of
an non-Munda girl in the community but the rest of his
evidence cannot be brushed aside. From all this evidence it
is proved that once the marriage of a Munda male with a non-
Munda female is approved or sanctioned by the Parha
panchayat they become members of the community. They
contention of Mr. Anthony that a person can be Munda by
birth alone can be sustained only if the custom of endogamy
is established without any exception. We have already held
that the rule of endogamy has not been proved to exist in
the rigid or strict form canvassed by Mr. Anthony. That
rule has not been strictly followed and the marriage of a
Munda male with a non-Munda woman has been and is being
approved and sanctioned by the Parha panchayat. If a non-
Munda woman’s marriage with a Munda male is valid it is
difficult to say that she will not become a member of the
Munda tribe. The, concept of a tribe is bound to undergo
changes, when numerous social, economic, educational and
other like factors in a progressive country start having
their impact. It is noteworthy that a Hinduised Munda and a
Munda converted to Christianity can inter-marry and
conversion to Christianity has not become an obstacle in the
way of such marriage among the Mundas. Mr. Horo himself in
all fairness affirmed that custom among the Mundas was not
static but was dynamic and was changing. We do not find
cogent or weighty reasons for disagreeing with the view of
the High Court on the points under discussion.
We may also refer to Article 330 of the Constitution accord-
ing to which the seats reserved for the Scheduled Tribes are
to be reserved in the House of the People, inter alia, for
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members of these Tribes. Under S. 33 (2) of the Act a
candidate for a reserved seat has to file a declaration
specifying a particular caste or tribe of which he is a
member. Article 342(1) empowers the President to specify
’the tribes or tribal communities or parts of or groups
within tribes or tribal communities which shall, for the
purposes of the Constitution, be deemed to be Scheduled
Tribes in relation to the State or Union territory as the
case may be. In Parts 1 to 12 of the Schedule to the
Constitution (Scheduled Tribes) Order 1952 are specified the
tribes or tribal communities or parts of or groups within
the tribes or tribal communities who are to be deemed to be
Scheduled tribes. Munda is one of such specified tribes or
tribal communities. It can well be said that the term
"tribal community" has a wider connotation than the
expression "tribe". A person who, according to the strict
custom of a tribe’.
378
cannot be regarded as a member of that tribe may well be
regarded as a member of that tribal community. Where a non-
Munda woman is married to a Munda male and the marriage is
approved and sanctioned by the Parha Panchayat of that tribe
and the marriage is valid she may not, on the assumption
that the rule of endogamy prevails, become a member of the
Munda tribe in the strict sense as not having been born in
the tribe. She cannot, however, be_ excluded from the
larger group, namely, the tribal community. The High Court
has taken the view that the use oil the term "tribal
communities" in addition to the term "tribes" in Article 342
shows that a wide import and meaning should be given to
these words and even if the respondent is not a member of
the Munda tribe by virtue of birth she having been married
to a Munda after due observance of all formalities and after
obtaining the approval of the elders of the tribes would
belong to the tribal community to which her husband belongs
on the anology of the wife taking the husband’s domicile.
Even without invoking the doctrine of domicile the
respondent’s marriage with late Shri Jaipal Singh who was a
Munda having been approved and sanctioned by the Parha
Panchayat of the Munda tribe it can be said that she became a me
mber of the Munda tribal community. We have not been
shown any infirmity in the reasoning of the High Court on
this point. When a person, in the course of time, has been
assimilated in the community it is somewhat difficult to
comprehend how that person can be denied the rights and
privileges which may be conferred on that community even
though tribal by constitutional provisions.
In the result this appeal fails and it is dismissed but in
view of the nature of the points involved we leave the
parties to bear their own costs in this Court.
V.P.S.
Appeal dismissed.
379