New Delhi, Jan 18 (IANS) The Supreme Court Wednesday said that the determination of caste of a person born of a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case.

In such a marriage, there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where the husband belongs to a forward caste, said the apex court bench of Justice Aftab Alam and Justice R.P. Desai in their judgment.

Justice Alam said: “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 Castes or the Scheduled Tribes.”

The court said this while answering the question as to what would be the status of a person whose one parent belongs to the Scheduled Castes or Scheduled Tribes and the other comes from the upper castes or more precisely does not come from the Scheduled Castes or Scheduled Tribes.

The court also considered the question as to what would be the entitlement of a person from such parents to the benefits of affirmative action sanctioned by the constitution.

Referring to the earlier judgments of the apex court, the court said that “the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal, the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case.”

The judgment said that by virtue of being the son of a forward caste father, he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humiliations and handicaps like any other member of the community to which his or her mother belonged.

The judgment said that he was always treated as a member of the community to which his mother belonged not only by that community but by people outside the community as well.

It is also clear to us that taking it to the next logical step and to hold that the off-spring of such a marriage would in all cases get his/her caste from the father is bound to give rise to serious problems, the judgment said.

The court said this while allowing an appeal by Rameshbhai Dabhai Naika who had challenged the Gujarat High Court order by which it upheld the caste scrutiny committee decision cancelling the tribal certificate earlier obtained by the appellant on the sole ground that his father was a non-tribal but his mother was a tribal.