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Affidavit of consent, age, knowledge of legal consequences: Delhi High Court issues guidelines for religious conversion for marriage

The High Court emphasised that the primary necessity in the religious conversion process for the sake of marriage is to guarantee informed consent and a thorough comprehension on the part of the individual undergoing the conversion.

On Friday (19th January), the Delhi High Court ruled that an individual, who undergoes a religious conversion to marry someone from a different faith, must submit an affidavit declaring their awareness of the consequences and implications. The affidavit must specifically talk about divorce, custody, succession, and religious rights. The Court has provided comprehensive guidelines for authorities to adhere to in marriages following conversion. Additionally, the Court outlined procedures for recording statements of sexual assault victims under Section 164 of the Criminal Procedure Code (CrPC). Justice Swarana Kanta Sharma gave this verdict.

What did the Delhi High Court say in its order

The High Court emphasised that the primary necessity in the religious conversion process for the sake of marriage is to guarantee informed consent and a thorough comprehension on the part of the individual undergoing the conversion. The Court said, “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.”

The High Court further said, “The same be in Hindi as well 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 High Court further noted, “An affidavit regarding age, marital history and marital status and evidence of the same shall also be furnished and the affidavit shall also say that the conversion is being undergone voluntarily after understanding the implications and consequences related to marital divorce, succession, custody and religious rights, etc.”

Justice Swarana Kanta Sharma clarified that these instructions do not extend to individuals reverting to their original religion, as they are already familiar with their initial faith. The Court additionally stated that these guidelines do not pertain to marriages conducted under the Special Marriage Act, of 1954.

She added, “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, the impact of which extends far beyond the immediate union, encompassing a myriad of consequences on their personal laws and various facets of life.”

What are the guidelines for recording Section 164 CrPC statements

The High Court also issued guidelines for recording Section 164 CrPC statements as follows: The statement should not be mechanically recorded and must be in a language understood by the victim. The victim should be presented before the magistrate promptly, and the Investigating Officer (IO) must identify the victim before recording the statement. The magistrate should engage with the victim, making age and education-appropriate inquiries to assess their competence, ensuring the voluntariness of the statement, and addressing specific details for accuracy.

Both preliminary inquiries and statements should be in the vernacular and avoid standardised templates. The victim’s words and descriptions of the sexual assault must be documented verbatim. The magistrate should append a certificate confirming the voluntary nature and accuracy of the statement, ensuring the victim’s understanding and obtaining signatures within the magistrate’s presence.

Guidelines issued after case involving Maksood Ahmad

The Court issued these directives when declining to dismiss the First Information Report (FIR) filed against an individual under Section 376 (rape) and 506 (criminal intimidation) of the Indian Penal Code (IPC), despite the subsequent marriage of the complainant and the accused. The petitioner, Maksood Ahmad, was represented by Advocate Shyam Kumar, while the State was presented by Additional Standing Counsel (ASC) Sanjeev Bhandari, along with advocates Kunal Mittal, Arjit Sharma, and Rishika.

In her complaint, the woman accused Maksood Ahmad of raping her on 24th September 2022. The FIR was officially filed on 18th October 2022. Notably, on the same day, 18th October 2022, the woman underwent a conversion to Islam and entered into marriage with Ahmad. After the marriage, the accused Ahmad was apprehended by authorities on 18th November 2022.

The woman said that she was divorced from her first husband during her marriage to Ahmad. However, the Court observed a lack of supporting documentation for this claim. Notably, Ahmad was already married when the complainant woman married him.

The High Court encountered a plea to quash the FIR, contending that the accused and the complainant are not legally wedded. The argument was based on the current status of the couple as husband and wife, living together with the woman’s two children from her first marriage. The woman also expressed her willingness to have the FIR quashed.

Justice Swarana Kanta Sharma emphasised that the complainant, at the time of marrying the accused, was not legally divorced from her first husband, making her ineligible for remarriage. The Court underscored that the mere occurrence of subsequent marriage between the complainant and the accused should not automatically warrant the quashing of FIRs in cases registered under Section 376 of the IPC.

The High Court said, “This Court also looks at such marriage with suspicion, and the bona fides of accused are also unclear, since the marriage in this case was immediately solemnized i.e. within a period of ten days of registration of FIR, after getting the religion of prosecutrix converted to Islam, and it cannot be ascertained at this stage as to whether the religious conversion in this case was with a bona fide intent to only marry the prosecutrix or to clandestinely project to the prosecutrix that now she was married to the accused and that both of them could now approach the Courts for seeking bail and for quashing of the FIR.”

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