• Caste of illegitimate child

My friend Shiva mother was a second wife to his father (first wife still alive). His father was OC and his mother was BC. His father stayed with his 1st wife and never cared about his second wife. He was always been with his mother n her family. And he was always been treated as BC. In school certificates his caste was entered as BC. 
 Now while applying for government job can he use his mother caste BC ? OS there any law regarding this? Please give clarity as he wants to apply for job.
Asked 8 months ago in Family Law from Visakhapatnam, Andhra Pradesh
Religion: Hindu
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.”



“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.


Holding that offspring in all such cases will get father's caste tag will cause serious problems


 
Ajay Sethi
Advocate, Mumbai
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1) if child is brought up by mother child can take mother caste 

2) judgment cited by me clearly mentions that if child is brought up my mother as member of her tribe he would take the mothers caste and not that of father 

3) you can seek job as member of backward caste 
Ajay Sethi
Advocate, Mumbai
23126 Answers
1215 Consultations
5.0 on 5.0
The marriage of your friend's mother to his biological father as his first marriage was already in subsistence. He can claim to be BC only if there is a declaration of nullity of the marriage of his mother to his biological father.
Ashish Davessar
Advocate, Jaipur
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446 Consultations
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My friend Shiva mother was a second wife to his father (first wife still alive). His father was OC and his mother was BC. His father stayed with his 1st wife and never cared about his second wife. He was always been with his mother n her family. And he was always been treated as BC. In school certificates his caste was entered as BC. 
 Now while applying for government job can he use his mother caste BC ? OS there any law regarding this? Please give clarity as he wants to apply for job.

Though the 2nd marriage is legally void,  but the child born through that relationship is a legitimate child and it will adopt the biological father's   customs. however there is no bar in the child adopting the mother's caste or religion.  There are plenty of decided case laws in this regard.  He can very well apply for jobs with reservation for BC.
T Kalaiselvan
Advocate, Vellore
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Sir I have gone through your answer but I couldn't get the conclusion. Pls answer give conclusion
 Can he take mother caste BC ? If he applied for job using mother caste BC and got job will it be any problem in future?? 
 Any legal law regarding this ??

He can adopt his mother's caste and can avail the privileges meant for the community to which his mother belongs.For case laws he can browse through internet
T Kalaiselvan
Advocate, Vellore
13943 Answers
127 Consultations
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Sir is there any definite GOVERNMENT ORDER  issued by central government or state ( precisely andhra Pradesh) regarding this ?
Few days back I asked regarding this in collector office they said there is GO but it is in pending. They too in dilama n they couldn't give a proper reply. 


First of all clarify that is there any specific order that the child has to adopt the father's caste alone? It has been in practice for long hence it is considered as law.  Your friend can adopt his mother's caste since the same has already been mentioned in his school records hence there is no question of giving false information. 
The collectorate staff or any other official cannot give concrete reply to this, hence let your friend avail the opportunity first, if at all there is any problem, let the problem creator quote the reason for the problem, we can catch it up with him accordingly.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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1) supreme court judgment is the law of the land 

2)  Article 141 of the Constitution of India states that the law declared by Supreme Court is to be binding on all Courts within the territory of India. It is the highest court in India and has ultimate judicial authority to interpret the Constitution and decide questions of national law 

3) once you have the supreme court judgment that child can claim caste of the mother if he has been brought up by the mother then you can claim benefit of the reservation . 

4) not aware of any order issued by AP govt on this issue 
Ajay Sethi
Advocate, Mumbai
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1215 Consultations
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1) in your case father never carried about second child and was brought up by mother only 

2) OBC would also be covered by said judgment 
Ajay Sethi
Advocate, Mumbai
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1215 Consultations
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This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe.
They mentioned St/SC is it means obc people are not covered under this?? 

Your understanding is absolutely right. This law was settled in favor of a candidate belonging to SC/ST community.  Actually this law is an eye opener to the suppressed community who suffer hardships in the society even till date owing to the injustice meted out to them in the name of caste and community.
However, you can very well quote this ruling for its general applicability and for your case too. 
T Kalaiselvan
Advocate, Vellore
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OBC and SC/ST is not one and the same thing. They are two different classes.
Ashish Davessar
Advocate, Jaipur
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446 Consultations
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