Person Converting Religion For Marriage Must Be Informed Of Legal Consequences Like Inheritance, Maintenance: Delhi HC

PREFACE

It is most significant to note that in a very pertinent, progressive, powerful and pragmatic judgment titled Maksood Ahmad vs State of NCT of Delhi & Anr in W.P.(Crl.) 336/2023 and cited in Neutral Citation No.: 2024 : DHC : 398 that was reserved on 12.01.2024 and then finally pronounced on 19.01.2024 has minced just no words to observe explicitly that individual undergoing religious conversion for the purpose of marriage must be fully informed of the legal consequences associated with it. The Delhi High Court also issued a slew of directions to be followed by individuals facilitating religious conversion for interfaith marriages and to provide a detailed understanding of the religion person is converting and its associated ramifications and making them aware and abreast of the potential shifts in legal standing. This remarkable judgment by the Single Judge Bench of the Delhi High Court comprising of Hon'ble Ms Justice Swarana Kanta Sharma came as the Court heard the request to quash an FIR against a Muslim man accused of raping a Hindu woman who he later married according to Muslim customs after the woman converted to Islam.

It must be revealed here that the man was granted regular bail by a city court after the woman admitted that she married the man 10 days after the registration of the FIR and that the two had settled their disputes. The Delhi High Court, however, refused to quash the FIR. My very best friend Sageer Khan in 1993 in Sagar in Madhya Pradesh termed "conversion" as "one of the worst crimes on earth" and further said fumingly that, "Conversion cannot be justified under any circumstances. Just like I will never shun Islam and Allah similarly you should never shun Hinduism and Mahadev whom you worship till now. There is a reason why God makes our birth in a particular religion which we should never shun under any circumstances and all religions are different paths to reach the same goal just like mountaineers adopt different paths to reach the same top of a mountain. Centre must make conversion punishable with huge fine and imprisonment of at least 10 years and must ban it completely."

OVERVIEW

At the very outset, this brilliant judgment authored by the Single Judge Bench comprising of Hon'ble Ms Justice Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that, "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."

As we see, the Bench observes in para 2 that, "One of such issues is as to whether love and consequent marriage after registration of the FIR is or isn't always an adequate defence against a case registered under Section 376 of Indian Penal Code, 1860 ('IPC') for the purpose of quashing the FIR without a trial."

Truth be told, the Bench points out in para 3 that, "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."

FACTUAL HISTORY OF THE CASE

To put things in perspective, the Bench envisages in para 5 that, "The present writ petition, filed under Article 226 and 227 of Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') for quashing of FIR No. 439/2022, registered at Police Station G.T.B. Enclave, Delhi, for offence under Sections 376/506 of IPC, centers on the conflicting stories presented by the accused/petitioner Mr. Maksood Ahmad, and prosecutrix/ respondent no. 2 Ms. 'M'. The story of the respondent no. 2 being of forced sexual assault and the conflicting stand of the petitioner that it was a consensual live-in sexual relationship."

Briefly stated, the Bench enunciates in para 8 that, "To encapsulate, the history of proceedings before the courts of law, in this case, is as under:

i. The alleged incident in question took place on 24.09.2022.

ii. The FIR was registered on 18.10.2022.

iii.The prosecutrix Ms. 'M' converted to Islam on 28.10.2022 for the purpose of marriage with Mr. Maksood, and the parties were married vide Nikahnama of even date.

iv. The accused was arrested on 18.11.2022.

v. The parties appeared before the learned Sessions Court, and the accused was granted interim bail on the ground of compromise and marriage between the parties, vide order dated 23.11.2022. The interim bail was initially granted by the learned Sessions Court in its wisdom for the purpose of filing petition for quashing of FIR.

vi. The present petition was filed on 19.12.2022, seeking quashing of the present FIR on the basis of marriage solemnized between the accused and the prosecutrix after conversion of the prosecutrix to Islam.

vii. Vide order dated 13.12.2022, the interim bail of the accused was extended till 20.12.2022.

viii. On 20.12.2022, the interim bail of the accused was again extended by a period of one month, after considering the submissions of prosecutrix that she had got the present FIR registered due to some misunderstanding.

ix. The interim bail was further extended on 21.01.2023 by the Sessions Court, till 28.01.2023 and then till 07.02.2023 and further till 25.02.2023.

x. On 25.02.2033, the accused was enlarged on regular bail by the learned Sessions Court, after taking note of the fact that prosecutrix had admitted that she had got married to the accused after the registration of present FIR and the parties had already preferred a quashing petition before this Court.

xi. Charge-sheet was filed after completion of investigation for offence under Sections 376/328/506 of IPC.

xii. The learned Sessions Court framed charge against Mr. Maksood on 10.08.2023, for commission of offences under Sections 376/328/506 of IPC."

GUIDELINES

Do note, the Bench notes in para 99 that, "The law books may not have answers to every situation lurking in pages of the petitions before the adjudicating courts. It is when a Court is confronted with the real life situations that the justice system has to deal with, that the guidelines or application of law with the understanding of specific cases are born."

Most significantly, the Bench then mandates in para 100 postulating that, "Thus, to give effect to aforesaid aspects and observations, the following guidelines are laid down by this Court:

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."

For clarity, the Bench clarifies in para 101 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."

Note of Caution

Quite significantly, we see that the Bench hastens to add in para 102 stating that, "This Court should not be taken to be laying down any law or prescribing any mode of conversion or putting restrictions on conversion, but the Courts, being the implementing institutions of the country and one of the pillars of democracy to ensure rule of law by application of law is that pillar of democracy which will come across situations through unfolding of facts in various cases, as to whether the laws which have been enacted by the Parliament suffer from any lacunae, grey area or gap in law including any lacunae or unconstitutionality in the law which has the potential of being manipulated by those who do not have care or respect for the law."

To be sure, the Bench specifies in para 103 that, "These guidelines are for ensuring well-informed decision on the part of the naive, uneducated, susceptible, adolescent couples who may enter into such unions after conversions, without fully comprehending the profound implications of such a conversion, impact of which extends far beyond the immediate union, encompassing a myriad of consequences on their personal laws and various facets of life, as have been highlighted in the preceding paragraphs."

Be it noted, the Bench notes in para 109 that, "Notably, the relations between the parties had taken place much prior to the marriage. The FIR was registered prior to the marriage. A person embracing another religion not only gives up his or her faith, but also the personal law he/she is governed by, and thus, he or she needs to make an informed decision, without being influenced by any external factors. It is not clear as to whether the conversion in this case was bonafide with intent to only marry the petitioner. The prosecutrix who appeared before this Court had converted to Islam, which was one of the conditions precedent set before her by the petitioner herein for getting married to him."

It cannot be glossed over that the Bench observes in para 110 that, "Had this FIR not been registered, probably the marriage would not have taken place. There is no argument or justification as to why the marriage was earlier solemnized and was not brought to the notice of the authorities."

Precisely stated, the Bench states in para 113 that, "Without a doubt sexual violence against a woman should invite no tolerance. At the same time, manipulating the system by the parties to a case under Section 376 of IPC would equally need to be dealt with a stern hand and serious efforts should be made to address and remedy failings within the criminal justice system and through our society."

It is worth noting that the Bench notes in para 114 that, "The learned Trial Courts below have already taken cognizance of the statement of the prosecutrix. This Court has taken cognizance of conduct of the accused as well. No material could be brought forth before this Court in support of the contention which is the very basis on which the quashing has been sought by both the parties. The argument addressed before this Court could not prima facie prove that the contention of compromise on the basis of marriage is genuine or not or whether it is only for the purpose of quashing of the FIR. The same will be clear only during trial and passage of time. The Courts below will be at liberty to take appropriate action under law against both the parties in case it is proved that they had misguided the Court or committed perjury."

Most remarkably, the Bench propounds in para 115 that, "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."

Further, the Bench directs in para 116 that, "A copy of this judgment be forwarded to the Director (Academics), Delhi Judicial Academy for information and necessary action and also to Commissioner of Police, Delhi for bringing it to the notice of all concerned and training."

What's more, the Bench directs in para 117 that, "In view thereof, the present petition stands dismissed."

Conclusion

Finally, the Bench concludes by holding in para 118 that, "The judgment be uploaded on the website forthwith."

In essence, we thus see that the Delhi High Court has made it indubitably clear that interfaith couples must be briefed on all aspects of conversion including legal consequences like inheritance and maintenance. The rape case registered against a man in FIR was thus refused to be quashed by the Delhi High Court. It merits no reiteration that the guidelines prescribed must be adhered to strictly. No denying!