Individual Must Be Apprised Of Religious Repercussions & Legal Implications Of Conversion For Inter-Faith Marriage: Delhi HC Issues Guidelines
The Delhi High Court while noting that an individual must be apprised of religious norms, obligations, and restrictions that come after religious conversion for the purpose of marriage, has issued some guidelines for dealing with such cases.
The Court was deciding a case in which the main issue was whether love and consequent marriage after registration of an FIR is or is not always an adequate defence against a case registered under Section 376 of the Indian Penal Code, 1860 (IPC) for the purpose of quashing the FIR without a trial.
A Single Bench of Justice Swarana Kanta Sharma said, “The individual undergoing religious conversion for the purpose of marriage must be fully informed of the legal consequences associated with such a conversion. This involves providing a comprehensive explanation of how the conversion may affect the individual's personal status, outlining any alterations in inheritance rights, and shedding light on modifications in succession, maintenance, custody, divorce laws that may come into play. … Equally important is the exploration of religious repercussions. The individual must be apprised of the religious norms, obligations, and restrictions that come with the conversion.”
The Bench added that such a communication should extend to the marital domain, covering aspects such as the mode of marriage and potential modes of dissolution of the same. It observed that the individual who is facilitating the conversion has the utmost responsibility to meticulously verify the identity of the prospective spouse.
The petitioner/accused Maksood Ahmad along with an Advocate represented himself while ASC Sanjeev Bhandari represented the State.
Factual Background -
A writ petition was filed under Articles 226 and 227 of Constitution read with Section 482 of the Code of Criminal Procedure, 1973 (CrPC) for quashing of an FIR registered for the offence under Sections 376 and 506 of IPC. It was a case of the conflicting stories presented by the accused/petitioner Maksood Ahmad, and prosecutrix/respondent no. 2 Ms. ‘M’. The story of the victim was of forced sexual assault and the conflicting stand of the accused was that it was a consensual live-in sexual relationship.
The issue that arose for consideration in this case before the court 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.
The High Court in the above regard noted, “The sheer strangeness of some of the facts and events of this case that have been encountered by this Court, have compelled this Court to consider multiple issues which needed consideration in one case. … This case also presents a situation which points out that there may be some cases involving facts and situations that even the Legislature didn’t plan for, which will raise questions and issues in a petition that may not have come up or dealt with previously by a Court of law.”
The Court further said that the petition brought to fore many questions, related and unrelated to the petition, which affect the larger concern of judicial adjudication, fairness, equity, purity and strength of the judicial system to stand tallest and be able to see from the said tallest pedestal, the manipulation, misguiding and taking for a ride the judicial system, and the criminal provisions by parties approaching it so that the faith of the community should not shake in the judicial system ever.
“In the present case, the statement recorded reads as mere formality in a typed initial performa. It is strange that though the Magistrate was actually examining a woman who is 40 years of age and having two children, she was asked about her favourite fruit and favourite colour. Strangely though the learned Magistrate writes that these two questions were “to check her competency to depose in a vernacular language”, the questions seem to be a typed performa in English and the answers have been written in English only. Therefore, it is not clear as to how the learned Magistrate, by asking these two questions in English, was judging and checking the competence of prosecutrix to give a statement and her capacity to speak and understand a vernacular language”, it observed.
The Court, therefore, issued following guidelines to the Magistrates for the purpose of recording statement under Section 164 of CrPC of sexual assault victims:
1. Statements under Section 164 of Cr.P.C. of victims of sexual assault should not be recorded mechanically or in a typed performa.
2. The victim has to be produced by the investigating officer before the learned Magistrate, at the earliest.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. The questions to be put have to be framed according to each case and the victim.
10. 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.
11. 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.
12. The signatures or thumb impression, as the case may be, must be taken inside the chamber/room and in presence of the Magistrate.
13. 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.
14. The statement must be recorded in the language understood by the victim and it should be so reflected in the statement.
“The story of this case allegedly began with love of Ms. M and Mr. Maksood which landed Mr. Maksood in a police station where he had encountered the hands of law, and it then progressed on mutual lies of Ms. M and Mr. Maksood before police authorities and courts and ended up in the present litigation”, noted the Court.
Furthermore, the Court said that at every stage of police investigation and judicial proceedings, the prosecutrix misguided the authorities and Courts and did not come to the court with clean hands. Hence, it directed that in respect of religious conversions solely for the purpose of solemnization of inter-faith marriages, following crucial aspects be followed:
1. 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. It is crucial that the person willingly embraces the decision to convert, fully cognizant of the multifaceted implications embedded in such a significant life choice. To achieve this, it becomes paramount to furnish and inform the individual with exhaustive information concerning the religious doctrines, customs, and practices associated with the chosen faith, which includes an explanation of the tenets, rituals, and societal expectations inherent in religious conversion, to ensure that consent to such conversion is an informed consent, given after fully understanding the consequences of such action.
2. Communication in Native Language- When an individual contemplates a decision to undergo conversion for the purpose of marriage, it is essential for him or her to grasp the intricacies of this process fully, for the same, effective communication assumes paramount importance.
3. Legal Implications of Conversion Be Explained: Succession & Inheritance, Maintenance, Custody of Children, Rights of the Spouse to Personal Law After Conversion- The individual undergoing religious conversion for the purpose of marriage must be fully informed of the legal consequences associated with such a conversion.
4. Religious Repercussions of Conversion for the Purpose of Inter-faith Marriage- Equally important is the exploration of religious repercussions. The individual must be apprised of the religious norms, obligations, and restrictions that come with the conversion.
5. Marital Consequences in Marriages after Conversion- Moreover, the communication should extend to the marital domain, covering aspects such as the mode of marriage and potential modes of dissolution of the same.
6. Identity Verification of the Prospective Spouses- Furthermore, this Court observes that the individual who is facilitating the conversion has the utmost responsibility to meticulously verify the identity of the prospective spouse.
7. 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.
8. 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 Court, therefore, issued following guidelines:
1. 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:
(a) Affidavit regarding the Age, marital history and marital status and evidence thereof of both the parties.
(b)Affidavit that the conversion is being undergone voluntarily after understanding the implications and consequences related to marital divorce, succession, custody and religious rights, etc.
2. 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.
3. 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.
The Court clarified 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.
Coming back to the case, the Court remarked that the facts and investigation in the case revealed the story of love, lies, law, and litigation as it transpired that in the year 2012 itself, the petitioner and the prosecutrix, who were already married to different partners, had married each other.
“Without doubt, 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. Thus, in view of the above facts and circumstances, this Court does not find it a fit case to quash the FIR”, it concluded.
Accordingly, the High Court dismissed the petition.
Cause Title- Maksood Ahmad v. State of NCT of Delhi & Anr. (Neutral Citation: 2024:DHC:398)
Appearance:
Petitioner: Advocate Shyam Kumar
Respondents: Advocates Kunal Mittal, Arjit Sharma, and Rishika.
