Delhi HC frames guidelines for religious conversions solely for the purpose of marriage, says legal & religious repercussions must be explained
Justice Swarana Kanta Sharma [19-01-2024]

Read Order: MAKSOOD AHMAD v. STATE OF NCT OF DELHI & ANR [DEL HC- W.P. (CRL) 336/2023]

Tulip Kanth

New Delhi, January 23, 2024: In a significant ruling, the Delhi High Court has formulated guidelines and highlighted certain aspects to be considered and followed in cases of religious conversions which are carried out solely for the purpose of marriage. Such observations were made by the High Court while refusing to quash FIR in an alleged case of rape where consequent marriage after registration of the FIR was raised as a defence by the accused.

At the time of filing complaint before the police, the story given by the prosecutrix was that she was a divorcee and a handicapped person, who knew Maksood Ahmad-accused for several years as he had been a friend of her ex-husband, and he used to visit her house. As per her version, the accused had come to her house one day and had asked her to prepare food for him. She further alleged that he had laced the drink with some sedatives. Taking advantage of such situation, he had then raped her.

It was further alleged that he had threatened her to not inform about the incident to the police, else she would face dire consequences. Thereafter the prosecutrix finally called on women's helpline number and after getting courage from the counsellor, she had informed the police about the incident, which led to registration of the present FIR.

The petitioner-accused told a different story when he appeared at the time of consideration of his bail applications. He submitted had been in a live-in-relationship with Ms. 'M' since the year 2007, and a compromise deed had been executed between them. However, as per the version of Mr. Maksood, he and Ms. 'M' had again started living together after six months, as husband and wife, and since some differences had arisen between the two of them, the prosecutrix got the present FIR registered against him. However, he informed the Court that on 28.10.2022, he had solemnized marriage with the prosecutrix according to Muslim customs and rights.The petition in question was filed seeking quashing of the FIR on the basis of marriage solemnized between the accused and the prosecutrix after conversion of the prosecutrix to Islam.On 25.02.2033, the accused was enlarged on regular bail by the Sessions Court, after taking note of the fact that prosecutrix had admitted that she had got married to the accused after the registration of the FIR and the parties had already preferred a quashing petition before the Court.

Charge-sheet was filed after completion of investigation for offence under Sections 376/328/506 of IPC.The Sessions Court framed charges against the accused. The main issue for consideration in this case was whether in the peculiar facts and circumstances of the case, where the accused and the prosecutrix have compromised the matter and have married each other, the petition for quashing FIR registered under Section 376 of IPC deserves succeeding in light of the conduct of the parties.

On the issue of quashing of FIRs on the basis of settlement/compromise, the Single-Judge Bench of Justice Swarana Kanta Sharmareferred to Narinder Singh v. State of Punjab [LQ/SC/2014/327]; Gian Singh v. State of Punjab [LQ/SC/2012/838]; Parbatbhai Aahir Alias ParbathbhaiBhimsinhbhaiKarmur v. State of Gujrat, [LQ/SC/2017/1450]. It was observed that it is not an absolute rule that the FIR registered for offence under Section 376 of IPC cannot be quashed on the basis of compromise in any case. The Constitutional Courts, as well as High Courts, have taken a view that in cases where the victim and the accused had been in relationship for a long period of time and FIR was registered owing to some misunderstanding, but if they had later got married to each other and had been living happily with each other, such FIRs can be quashed in larger interest and for ensuring justice.

The Bench was of the opinion that the conflicting stories given by the prosecutrix and the accusedhighlighted many judicial mistakes too.The first error was mechanical recording of statement u/s 164 CrPC. It was opined that the recording of the statement of the rape victim under Section 164(5A) is an essential part of the investigation, as it serves several critical purposes in ensuring a fair and effective adjudication process.

Therefore, the Bench issued the following set of guidelines, to be followed by the Magistrates, while recording statements of a victim of sexual assault under Section 164 of Cr.P.C.-

• Statements under Section 164 of Cr.P.C. of victims of sexual assault should not be recorded mechanically or in a typed performa.
• The victim has to be produced by the investigating officer before the learned Magistrate, at the earliest. Before recording the statement in the chamber or room so designated for the said purpose, the investigating officer will identify the victim and will sign the same on the record so made by the Magistrate, that the IO Ms. 'M' has produced the witness who has been identified by her and was asked to leave the chamber/room where the statement was to be recorded. The Magistrate must record that the IO had left the chamber/room after identification.
• The Magistrate must interact with the victim to make preliminary inquiries by putting age appropriate and educational background appropriate questions to adjudge the competence of the victim to depose and give rational answers.
• The questions so put must reflect the state of mind of the victim by inquiries as to whether he/she is aware about his/her surroundings, the purpose of making the statement and before whom and why he/she is making the statement.
• The questions so put must also reflect, as far as possible, that the statement is being made voluntarily without any threat, pressure, fear, influence, coercion, or tutoring.
• In case of child victims, the Magistrate must satisfy that he or she understands the sanctity of oath, and in case of tender age, may dispense with administering oath.
• The preliminary inquires as well as the statements must be in vernacular and should not typed stereotyped performas, as all cases are not the same, and all victims may not have same level of intelligence, competence to understand, or social and educational background.
• The words and language used by the victim must be written in the statement in verbatim, and the act of sexual assault explained and described by the victim must be written as it is, instead of writing 'wrong act' which becomes a bone of contention at the time of trial.
• The questions to be put have to be framed according to each case and the victim. The learned magistrate may record after putting the questions and preliminary inquiry that “the victim is comfortable, well-oriented and is capable of giving rational answers to questions. He/she is aged about years at present and after some preliminary conversations with him/her, the victim appears to be vocal. The victim appears to be giving his/her statement voluntarily and without any threat, pressure, fear, influence, coercion or tutoring.”
• The Magistrate must append a certificate at the end of the statement recorded under Section 164 of Cr.P.C. regarding the statement being made voluntarily and the same being the true and exact statement made by the victim and that nothing has been added or subtracted therefrom.
• The certificate at the end of the statement must also mention that the statement was read over and explained to the victim and the victim has put his/her signatures in token of its correctness.
• The signatures or thumb impression, as the case may be, must be taken inside the chamber/room and in presence of the Magistrate.
• In case, the statement has been typed by a stenographer or an interpreter, which should not be the norm but an exception for reasons to be mentioned in the statement, it will be added that the statement was typed at the dictation of the learned Magistrate and is the true content of the statement made by the victim.
• The statement must be recorded in the language understood by the victim and it should be so reflected in the statement.

“The judiciary, being a crucial pillar of democratic Bharat, is always striving to deliver the best and the need for continuous judicial education is a step forward in this direction for a more dynamic and professional judiciary”,the Bench said while further adding, “The Director (Academics), Delhi Judicial Academy, is requested to conduct a workshop for the learned Magistrates regarding the importance and procedure to be followed while recording statements under Section 164 of Cr.P.C. of sexual assault victims.”

Another judicial error committed in this case was by the Sessions Court. While adjudicating the interim bail application of accused, certain facts of the case were mentioned incorrectly, and absolutely contrary and imaginary to the contents of FIR. The Bench opined that had the Sessions Judge noted the correct facts, the genuineness of marriage on the basis of which interim bail was granted to the accused, would have been revealed.

The compromise revealed that the accused had got married to Ms. 'M' earlier also, and that Ms. 'M' had not obtained divorce from her husband Mr. P. It was further recorded that Mr. P had gone to Madras in 2007, after which Ms. 'M' had established physical relations with Mr. Maksood. Thereafter, marriage had been solemnized between Ms. 'M' had Mr. Maksood, whereas Ms. 'M' had not disclosed the factum of her first marriage to Mr. Maksood as well as the fact that she had not obtained any divorce from her husband Mr. P. It was further mentioned in the compromise deed that both the parties had decided to finally settle the matter and Mr. Maksood had paid Rs 50,000 in cash to Ms. 'M'.

The Bench was of the view that the prosecutrix married the accused after converting her religion, as claimed before this Court, ten days after the FIR was registered in this case, At every stage of police investigation and judicial proceedings, the prosecutrix/respondent no.2 misguided the authorities and Courts and did not come to the court with clean hands.The Bench also noticed the aspect of conduct of non-disclosure of true facts to the authorities by the accused. Moreover, no documents had been either handed over to the Investigating officer by Ms. 'M' or placed before this Court, to show that she had obtained divorce from her previous husband and that she was competent to enter into a legally valid marriage with the accused or any other person.

On the issue of conversion of religion, the Bench observed that the Qazi was misguided by both the parties by suppression of facts and even he could not have known that the marriage could not have been solemnized, neither he may have known that the prosecutrix was converting not out of her faith towards the religion but love for the accused who was already married.

The High Court also put forth following aspects which need to be considered in cases pertaining to religious conversions solely for the purpose of marriage:

• Informed Consent and Understanding: The foremost requirement in the process of religious conversion for the purpose of marriage revolves around ensuring informed consent and comprehensive understanding on the part of the individual undergoing conversion.
• Communication in Native Language: Recognizing the gravity of the decision to convert for marriage, it is incumbent upon the parties involved, whether they be religious or legal authorities, to convey this information in a manner that is accessible and culturally sensitive.
• Legal Implications of Conversion Be Explained: Succession & Inheritance, Maintenance, Custody of Children, Rights of the Spouse to Personal Law After Conversion
• Religious Repercussions of Conversion for the Purpose of Inter-faith Marriage:The individual must be apprised of the religious norms, obligations, and restrictions that come with the conversion.
• Marital Consequences in Marriages after Conversion:The communication should extend to the marital domain, covering aspects such as the mode of marriage and potential modes of dissolution of the same.
• Affidavit for Marital History:Additionally, during the performance of marriage ceremonies following the conversion, the individual who is facilitating the conversion must take an affidavit from the parties detailing the past marital history of the individuals entering into the marital bond.
• Scope for Reverting Back to Original Religion:The prospective convert must also be informed about his/her right to reconvert to his/her own original religion and the consequences of the same.

The Bench also issued the following guidelines:

The following affidavits must be obtained at the time of inter-faith marriage after conversion by the concerned persons/authorities, except in cases of marriages performed under Special Marriage Act, 1954:

• Affidavit regarding the Age, marital history and marital status and evidence thereof of both the parties.
• Affidavit that the conversion is being undergone voluntarily after understanding the implications and consequences related to marital divorce, succession, custody and religious rights, etc.
• A certificate must be appended to the conversion certificate that the convert has been explained the tenets, rituals and expectations inherent in religious conversion as well as implications and consequences related to marital divorce, succession, custody and religious rights etc.
• The certificate of conversion and marriage should also be in additional vernacular language understood by the prospective convert in proof of the fact that he or she has understood the same. The same be in Hindi also where the language spoken and understood by the prospective convert is Hindi, in addition to any other language preferred to be used by such authority. Where the language spoken and understood by the prospective convert is other than Hindi, the said language can be used.

However, the Bench made it clear that these guidelines will not be applicable to the person converting back to his/her original religion, since the convert is already well-versed with his/her original religion.

It also came to the Court's attention that the prosecutrix was not legally divorced from her first husband, a fact that rendered her ineligible for remarriage without proper legal dissolution of her prior union. This deliberate withholding of pertinent details by both the parties, as per the Bench, not only violated legal requirements but also raised questions about the candor and forthrightness of the involved parties.

It was opined by the High Court that whether the marriage solemnized between the prosecutrix and the accused vide Nikahnama, as per Muslim rites and customs, is a valid marriage or not, is a question in itself that still remains unanswered at this stage which is being sought to be made a ground for quashing. Thus, dismissing the petition, the Bench held that it is not the continuity of the proceedings which will be abuse of process of law in this case, but bringing to halt or quashing of the proceedings which will be equivalent to permitting abuse of process of law by both the parties herein.