Query regarding the caste of a child of intercaste marriage

Not possible. Child will  bear the cast of father.

Is it possible for the  child to have no caste at all?

There is no definite law with regard to the caste of the child. If the child is declared as Scheduled Caste he or she will get special benefits like reservation for admissions to professional colleges, government jobs etc. If the child remains under General Category he/she will not get those benefits. Hence if the child is declared as General Category, no one else is going to bother. In order to encourage inter-caste marriages, particularly with Scheduled Castes, the child can get SC benefits if either of the parent belongs to a sheduled caste. As regards caste of the child, it is best left to the child to decide himself/herself when he/she grows up and knows things around. I know many cases, where the child does not want the lower caste  even if he/she has to forgo the benefits.

Find the attachment on smilar question as Sc opined.

The Supreme Court decision quoted by Mr. Aravind, Advocate, is different from the question posed by Aditi who has introduced the topic, for the following:

1. The case from the lowest court to the Supreme Court has started with the presumption by all the litigants and the courts, that in a legally wedded marriage, the child takes the caste of the father. The Supreme Court had not been asked to decide on that. The question was only whether the parents of the appellant were legally wedded or not.

2. The appellant claimed that she belonged to the lower caste, because of her mother’s caste as her parents were not legally wedded.

3. Further she claimed to belong to the lower caste in order to claim rights and benefits. The present case is the opposite. In this case the couple want to claim their child, not even belonging to the higher caste of the mother, but only “General Category”, thereby denying themselves the claim for certain benefits.

The term General Category comes with regard to reservations and the General Category has no rights under any of the laws for reservation etc.

To the best of my knowledge, there is no law answering the question raised by Aditi regarding caste of a child born in an inter-caste marriage.

There are certain laws under the Hindu scripttures, which are not recognized by courts in India. Under the Hindu law there are two types of inter-caste marriages. One is called Anuloma where the husband belongs to the higher caste and the wife the lower. In such a case the child will take the caste of the mother. Under the Hindu scripttures no caste climbing, as assumed by all in the Supreme Court case, is possible The marriage between a lower caste husband and a higher caste wife is called Pratiloma.  In a Pratiloma marriage the child will have a caste lower than that of the husband.

An example was the marriage between King Yayati and Devayani, daughter of Shukracharya. Devayani was a Brahmin girl and she married Yayati belonging to Kshatriya caste which is lower than Brahnins. Their son was Yadu. The descendants of Yadu are called Yadavas. Everyone knows that Yadavas are lower caste, claiming caste benefits, though Lord Krishna himself was a Yadava.

As I stated earlier let the child decide his or her own caste. Why parents bother now itself? In the meantime they can claim without any fear except for the people of the girl’s caste,  that the entire family belonged to General Category. Aditi go ahead.

Lastly paragraph 12 in the Supreme Court verdict was unwarranted and it betrays the minds of the judges.

I will disgree with Dr Ramani. The cencept of caste in scripttures was not the same as today as in Styug/Trtayug caste certificate was not needed for dalits to advance in education or profession.  The judgement quoted by Mr Arving carries the ration on which present query can be handled. The query has two questions:-

Both of them are willing to have the caste of their children as general category and NOT scheduled caste. Is this possible?

Ans : It is possible. One is a general candidate as long as he doe snot apply for caste certificate.

Can children get the caste of the mother( if both parents are willing) in case of an intercaste marriage?

Ans : For the purpose of reservtion (if applied) the child will have the caste status of father
 

There is no enacted law at present, which says as to which caste the child of an intercaste marriage will belong. When there is no law Surpreme Court or any other court rules based on what they think proper. If the judgement is that of the Supreme Court in a case where there is no enacted law that is taken as the law of the land thereafter. This is just for practical reason as there is no higher court than the Supreme Court. Supreme Court judges are not no alls nor are they personification of wisdom. I am a scientist and I can cite how Supreme Court judges have given absurd decisions. In physical sciences it is possible to be precise at least for the kind of matter that comes to the court for decision. So one can easily prove that a judge is wrong if he gives a wrong decision.

In the Aditi case the lady claimed that she belonged to scheduled caste. Her biological father belonged to upper caste. Her mother belonged to the scheduled caste. Her claim for lower caste was not because her mother belonged to lower caste but because she was an illegimate child. The question whether she should belong to caste of the father or the caste of the mother was not placed before the court. The judgement can even be intrepreted that one cannot claim benefits intended for a lower caste if one of the parents belonged to a higher caste.

As regards scripttures what I said was perfectly right. I did not say that one should follow the scripttures.

There is no law either for reservation adnt he reservation is going on on the basis of Govt instructions for which Govt is empowered as per the consititition. Such instruction on the subject are reproduced

Status of Children born to the Inter-caste married couple one of whom belongs to Scheduled Caste / Scheduled Tribe.

The crucial test to determine the caste of a child born out of wedlock in which one of the spouses belongs to SC/ST community as a member of their community is, to determine whether the child has been brought up and accepted as SC/ST as member of their SC/ST community. Even if a mother of the child is a SC/ST community member, it is possible that the community of his father accepts the child and brought up in the surroundings of his father’s relations. In that case such child cannot be treated as a member of SC/ST community. Similarly when the mother belongs to higher caste and the father belongs to lower caste irrespective of the fact whether the mother or father is a member of such community then he has to be treated as a member of SC/ST community and would be entitled to receive benefits as such.

[Guide-lines issued by the Government of India, Ministry of Home Affairs ND in its letter No.39/37/73/SCT I, dated 4-3-1975.

(Source : https://apland.ap.nic.in/cclaweb/certificates.htm#7 )

Since Hindu including Sikh & Buddhist, society (to whom SC status applies) is patrarchial it is artificial to assume that the caste will be determined on the basis of mother's caste. Woman is permitted to change surname after marriage (without affidavit etc) and not the man. This is done so as to recognise customary law. Yes in few parts of cournty society is matriachial and some of thm are Hindus as well.  In case of such communities the facts may be different.

“The crucial test to determine the caste of a child born out of wedlock in which one of the spouses belongs to SC/ST community as a member of their community is, to determine whether the child has been brought up and accepted as SC/ST as member of their SC/ST community. Even if a mother of the child is a SC/ST community member, it is possible that the community of his father accepts the child and brought up in the surroundings of his father’s relations. In that case such child cannot be treated as a member of SC/ST community. Similarly when the mother belongs to higher caste and the father belongs to lower caste irrespective of the fact whether the mother or father is a member of such community then he has to be treated as a member of SC/ST community and would be entitled to receive benefits as such”.

[Guide-lines issued by the Government of India, Ministry of Home Affairs ND in its letter No.39/37/73/SCT I, dated 4-3-1975.

“The crucial test to determine the caste of a child born out of wedlock in which one of the spouses belongs to SC/ST community as a member of their community is, to determine whether the child has been brought up and accepted as SC/ST as member of their SC/ST community.”

This does not say whether father or mother belongs to SC/ST. So if the father belongs to SC/ST but the child is not brought up as SC/ST,   ‘the crucial” test fails, and the child cannot be treated as belonging to SC/ST.

“Similarly when the mother belongs to higher caste and the father belongs to lower caste irrespective of the fact whether the mother or father is a member of such community then he has to be treated as a member of SC/ST community and would be entitled to receive benefits as such.”

When it has been said “when the mother belongs to higher caste and the father belongs to lower caste” where is the need to say “irrespective of the fact whether the mother or father is a member of such community”

The guidelines do not say

“Irrespective of the fact whether the child has been brought up and accepted as SC/ST or that of the higher caste”.

Then the guidelines say:

“Even if a mother of the child is a SC/ST community member, it is possible that the community of his father accepts the child and brought up in the surroundings of his father’s relations. In that case such child cannot be treated as a member of SC/ST community.”

I ask Mr. Sudhir as well as the Government Officer who drafted the guidelines

What if “Father of the child is an SC/ST community member, is it not possible that the community of his mother accepts the child and brought up in the surroundings of his mother’s relations?” What would happen then?

The above is most probably the case referred to the Forum by Aditi

The so called guidelines are self-contradictory and seem to support the ancient concept of pratiloma and anuloma.

Mr. Sudhir:

Do you say that the answer to the question of Aditi is an emphatic ‘No’? Not at all. My reply 10 months ago still holds.

There are occasions when one should not quote from “scripttures” (here the laws and the so called guidelines), but use common-sense. It is good to have wide knowledge. But it is another thing to use common sense to analyze them.

As for patriarchal and matriarchal systems things are changing with progress and the concept of gender equality. Earlier only sons had the right to inherit father’s property. Since 1955 both sons and daughters have equal right to father’s property. Women need not change their surnames after marriage. Why, even our scripttures recognize sons being known by their mother’s name. Satya Kama told his prospective Guru, that he did not know who his father was, as his mother had co-habited with several men. The Guru allowed him to adopt his mother’s name. Famous people in scripttures and puranas are known after their mother’s name. Kounteya, Radheya, Kartikeya are examples.

I wish you prove right and somene having a persons of patrirchial lineage general category born og general categopry father and SC/ST/OBC mother gets a caste certificate ans serves till supernnuation. I have not drafted this OM dated 4.3.75. But ut does exist.

My purpose here is limited to answer the question posed by Aditi 12 months ago. I gave my reply.  My 11 month old well reasoned answer is still very much valid. Again I say that there is no law regarding caste of a child of an inter-caste marriage. The dictat of a burocrat does not have the force of a law. I agree you didn't draft the guidelines.Nor did I deny its existence.  You only quoted it as though it is gospel truth.

As for proving caste we shall discuss it when someone asks the opposite question in a case opposite to that of Aditi.

Our Constitution has abolished all castes. Originally an exception was made in the case of scheduled castes and scheduled tribes for certain privileges for limited period of 15 years. Then expediency and political interests crept in and  the privileges were made permanent. After 43 years OBC's also were  included. There is a hide and seek game between the Parliament and the Supreme Court on the question of reservations. In due course Parliament may also pass a law as to which caste child of an inter-caste marriage should belong.

It can be determined whether a child has been brought up as a Hindu or as a Muslim. But how to find out whether a child has been brought up according to this caste or that caste in this age when caste practices are vanishing?

Hans Kelson an Austrian  jurist gave concept of "grundnorm" the basic law (constitution of the country in modern times) all norms revelove around the same.  The it is right of the Govt to give or deny the reservation and frame instructions thereon.  Whole reservation scheme is based on Govt instructions (of politician not of bureacrats who just authenticate the decision) there is no statute. Supreme Cout has in number of cases held that it is consititutional for the Govt to lay reservation and court has put reasonable fetters on the same. The instructions quoted above do exists and exercised.  Courts can strike down any promotion / appointment in violation of these instructions. These remain even if you and me do not agree.

What is the need to draw Kelson here? What all have been stated after quoting Kelson are all half-truths. Probably they have been stated in support of those guidelines.

In one post I started a para stating

“There are certain laws under the Hindu scripttures, which are not recognized by courts in India.”

The underlined portion has been underlined by me now. Still Mr. Sudhir Kumar said

“I will disgree with Dr Ramani. The concept of caste in scripttures was not the same as today as in Styug/Trtayug.”

Where is the disagreement between my statement and the above statement?

For the sake of argument let us take that the “guidelines” are mandatory. There is one statement which says if one of the spouses belonged to scheduled caste (without specifying which one), the child will belong to that caste according to which he was brought up. This can be interpreted to mean that if the father was of a higher caste and mother of scheduled caste, the child can be considered to belong to scheduled caste, if he or she was brought up according to that caste.

Mr. Sudhir Kumar seems to suggest that the Government and Government Officers can make rules according to their own whims and fancies. Even the Parliament could not constitutionalize the Lokpal Bill because opposition BJP did not co-operate.  

In Mumbai, if one has to start an industry, he or she has to give an undertaking that 80% of the workers recruited will be Maharashtrians. Further only a person with Marathi as mother tongue can be the HRD officer. These are patently unconstitutional and it continues only because no one will dare to challenge and not because of Hans Kelson. Again the industrialists know that the Government cannot take action, if they do not abide by the undertaking.

In a democracy no one can be arbitrary, Hans Kelson or any other luminary notwithstanding

Unfortunately none has challnaged this provision in court.  Many Giovt directies on reversation hve been succhssfully chanllnaged in courts.