Dismissed

Maksood Ahmad v. State of NCT of Delhi & Anr.

Delhi HC19 Jan 2024W.P.(CRL)/336/2023

Case brief

AI extract

What is this about?

This writ petition sought quashing of an FIR under Section 376 IPC on grounds of settlement and marriage between the accused and prosecutrix following her conversion to Islam. The Court dismissed the petition, holding that the marriage was likely invalid as the prosecutrix failed to produce documents of divorce from her first husband. The judgment also lays down critical guidelines for recording s

What did the court decide?

The petition for quashing of the FIR and bail was dismissed; the trial was ordered to continue.

Maksood Ahmad Vs State of NCT of Delhi & Anr. — Cheque Dishonour | Delhi HC (2024)

¶1

¶2

* IN THE HIGH COURT OF DELHI AT NEW DELHI

¶3

% Reserved on: 12.01.2024 Pronounced on: 19.01.2024

¶4

+ W.P. (CRL) 336/2023

¶5

MAKSOOD AHMAD ..... Petitioner Through: Mr. Shyam Kumar, Advocate alongwith Petitioner

¶6

versus

¶7

STATE OF NCT OF DELHI & ANR. ..... Respondents Through: Mr. Sanjeev Bhandari, ASC for the State along with Mr. Kunal Mittal, Mr. Arjit Sharma and Ms. Rishika, Advocates and with SI Manju and SI Neelam, P.S. GTB Enclave alongwith prosecutrix / Respondent no. 2

¶8

CORAM: HON'BLE MS. JUSTICE SWARANA KANTA SHARMA

¶9

J U D G M E N T

¶10

SWARANA KANTA SHARMA, J.

¶11

INDEX TO THE JUDGMENT

¶12

OVERVIEW ................................................................................................... 3 FACTUAL HISTORY OF THE CASE ........................................................ 4 History of Past Police and Judicial Proceedings ........................................... 5

¶13

Signature Not Verified

¶14

Page 1 of 54

¶15

W.P.(CRL.) 336/2023

¶16

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶17

THE RIVAL CONTENTIONS ..................................................................... 8
ISSUE IN DISPUTE BETWEEN THE PROSECUTION AND THE
PETITIONER ................................................................................................. 9
ISSUES MANDATING JUDICIAL NOTICE FOR THE OVERALL
WELL-BEING OF THE COMMUNITY .................................................... 9
PRINCIPLES GOVERNING QUASHING OF FIRs ON THE BASIS
OF SETTLEMENT AND THE ROLE OF COURTS .............................. 10
FIRST JUDICIAL ERROR: MECHANICALLY RECORDED
STATEMENT UNDER SECTION 164 OF CR.P.C. ................................ 15
SIGNIFICANCE OF RECORDING STATEMENTS OF SEXUAL
ASSAULT VICTIMS UNDER SECTION 164 OF CR.P.C. .................... 17
Guidelines Apropos Recording of Statement under Section 164 of Cr.P.C. of sexual assault victims ............................................................................. 21
SECOND JUDICIAL ERROR .................................................................... 25
LOVE, LAW, LIES & LITIGATION ........................................................ 26
Alleged Compromise Deed Executed in 2012 ............................................ 27
Mala Fide on Part of Prosecutrix ................................................................ 28
Conduct of Non-Disclosure of True Facts To The Authorities By The Accused ....................................................................................................... 30
IMPORTANCE OF PARTIES APPROACHING THE JUDICIAL
SYSTEM WITH CLEAN HANDS ............................................................. 31
NO DOCUMENT TO SHOW THAT MS. M HAD OBTAINED
DIVORCE FROM MR. P AND WAS THUS COMPETENT TO
SOLEMNIZE MARRIAGE WITH ACCUSED EVEN AFTER
CONVERSION TO ISLAM ........................................................................ 32
THE CONCERNS OF COURT REGARDING THE PROCESS
FOLLOWED FOR RELIGIOUS CONVERSIONS SOLELY FOR THE
PURPOSE OF MARRIAGE ....................................................................... 33
The Courts in India have Religiously Guided the Religious Sanctity of a
Person‘s Choice to Practice Any Religion.................................................. 33

¶18

Signature Not Verified

¶19

Page 2 of 54

¶20

Signature Not Verified W.P.(CRL.) 336/2023 Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶21

REL SOL	IGIOUS CONVERSIONS SOLELY FOR THE PURPOSE OF EMNIZATION OF INTER-FAITH MARRIAGES: CRUCIAL
ASP	ECTS TO BE FOLLOWED ................................................................ 39
1.	Informed Consent and Understanding: ................................................ 39
2.	Communication in Native Language: .................................................. 40
3.	Legal Implications of Conversion Be Explained: Succession & Inheritance, Maintenance, Custody of Children, Rights of the Spouse to Personal Law After Conversion ....................................................... 41
4.	Religious Repercussions of Conversion for the Purpose of Inter-faith Marriage: .............................................................................................. 42
5.	Marital Consequences in Marriages after Conversion: ........................ 43
6.	Identity Verification of the Prospective Spouses: ................................ 44
7.	Affidavit for Marital History: .............................................................. 44
8.	Scope for Reverting Back to Original Religion: .................................. 45
GUI	DELINES ............................................................................................... 45
No	te of Caution ........................................................................................... 46
CON	CLUSION ............................................................................................. 47
Th	e Decision ............................................................................................... 49

¶22

OVERVIEW

¶23

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.

¶24

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

¶25

Signature Not Verified

¶26

Page 3 of 54

¶27

W.P.(CRL.) 336/2023

¶28

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶29

Indian Penal Code, 1860 ( ‘IPC’ ) for the purpose of quashing the FIR without a trial.

¶30

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 .

¶31

FACTUAL HISTORY OF THE CASE

¶32

Facts of the case, what actually transpired and the controversy in issue as well as the procedural history of this case, which should ideally be kept minimal in a judgment by a appellate or writ court, in this case, as a matter of necessity, needs to be described at a reasonable length as they are of ultimate importance to decide this case.

¶33

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.

¶34

Signature Not Verified

¶35

Page 4 of 54

¶36

W.P.(CRL.) 336/2023

¶37

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶38

History of Past Police and Judicial Proceedings

¶39

At the time of filing complaint before the police, the story given by the prosecutrix Ms. ‗M‘ was that she was a divorcee and a handicapped person, who knew Mr. Maksood Ahmad for several years as he had been a friend of her ex-husband, and he used to visit her house. As per the version of Ms. ‗M‘, at about 6 PM on 24.09.2022, Mr. Maksood had come to her house and had asked her to prepare food for him. At his request, Ms. ‗M‘ had cooked food for him and in the meanwhile, Mr. Maksood had brought cold drinks for both of them. Ms. ‗M‘ alleges that Mr. Maksood had made her drink some cold drink and thereafter, she had started feeling dizzy as Mr. Maksood had laced the drink with some sedatives. Taking advantage of such situation, he had then raped Ms. ‗M‘ and when she had regained consciousness at about 9:30 PM, she had found that Mr. Maksood was lying naked above her and was still establishing physical relations with her. The incident as further disclosed by Ms. ‗M‘ is that when she had confronted and scolded Mr. Maksood, he had initially apologized for his acts, but later he had threatened Ms. ‗M‘ to not inform about the incident to the police, else she would face dire consequences. After committing rape upon her and extending threats to her, Mr. Maksood had run away. Though this incident is alleged to have happened on 24.09.2022, Ms. ‗M‘ says that she was not in a position to inform anyone about the incident, till 27.09.2022, when she had finally called on women‘s helpline number and after getting courage from the counsellor, she had informed the

¶40

Signature Not Verified

¶41

Page 5 of 54

¶42

W.P.(CRL.) 336/2023

¶43

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶44

police about the incident, which led to registration of the present FIR on 18.10.2022.

¶45

The petitioner Mr. Maksood Ahmad told a different story when he appeared at the time of consideration of his bail applications before the learned Sessions Court. His side of story was that he had been in a live-in-relationship with Ms. ‗M‘ since the year 2007, and on 18.04.2012, 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 Ms. ‗M‘ had 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.

¶46

To encapsulate, the history of proceedings before the courts of law, in this case, is as under:

¶47

i. The alleged incident in question took place on 24.09.2022. ii. The FIR was registered on 18.10.2022.

¶48

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.

¶49

iv. The accused was arrested on 18.11.2022.

¶50

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

¶51

Signature Not Verified

¶52

Page 6 of 54

¶53

W.P.(CRL.) 336/2023

¶54

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶55

the learned Sessions Court in its wisdom for the purpose of filing petition for quashing of FIR.

¶56

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.

¶57

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

¶58

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.

¶59

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.

¶60

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.

¶61

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

¶62

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.

¶63

Signature Not Verified

¶64

Page 7 of 54

¶65

W.P.(CRL.) 336/2023

¶66

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶67

THE RIVAL CONTENTIONS

¶68

Learned counsel for the accused/petitioner Mr. Maksood argues that the petitioner and respondent no. 2 Ms. ‗M‘ have already settled their disputes, and they are now legally married. It is argued that the marriage/ Nikah ceremony was performed between the parties on 28.10.2022 after the conversion of respondent no. 2 to the religion of the petitioner. It is argued that on 18.11.2022, the petitioner was arrested in the present FIR, however, on 23.11.2022, he was granted interim bail by the learned Session Court also on the ground of compromise and marriage between the parties which was extended from time to time. It is further argued that the petitioner and respondent no. 2 are residing together as husband and wife along with the children of the respondent no. 2 from her first husband happily from the day of their marriage. Thus, it is prayed that the present FIR registered against the petitioner be quashed, alongwith all consequential proceedings since respondent no. 2 has no objection to the same.

¶69

Learned ASC for the State has vehemently opposed the present petition, and has argued that the present petition is gross abuse of process of law and that the FIR reveals serious allegations against the complainant who alleges that she is a divorcee and handicapped who has been sexually assaulted by the accused by taking advantage of the fact that he was friend of her ex-husband.

¶70

This Court has heard arguments advanced by the learned counsels on behalf of petitioner and respondent no. 2, and by learned

¶71

Signature Not Verified

¶72

Page 8 of 54

¶73

W.P.(CRL.) 336/2023

¶74

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶75

ASC on behalf of the State. The material on record has also been perused and considered by this Court.

¶76

ISSUE IN DISPUTE BETWEEN THE PROSECUTION AND THE PETITIONER

¶77

The issue that arises for consideration in the present case is:

¶78

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?

¶79

ISSUES MANDATING JUDICIAL NOTICE FOR THE OVERALL WELL-BEING OF THE COMMUNITY

¶80

The hearing of this 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.

¶81

The following issues have compelled the judicial conscience of this Court to critically examine and lay down directions and

¶82

Signature Not Verified

¶83

Page 9 of 54

¶84

W.P.(CRL.) 336/2023

¶85

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶86

guidelines which are crucial for just and equitable adjudication of criminal cases and maintaining purity of the criminal justice system:

¶87

A. Importance of Recording Statement under Section 164 of Cr.P.C.

¶88

B. Importance of Parties Approaching the Judicial System with Clean Hands

¶89

C. Conversion of Religion of one of the parties solely for the purpose of Inter-faith Marriage

¶90

D. The Intricate Role of the Concerned Authorities Conducting Conversions solely for the Purpose of InterFaith Marriages:

¶91

E. Need to lay down Guidelines to be followed in case of Religious Conversions taking place solely for the Purpose of Inter-Faith Marriages.

¶92

F. How to deal with a Litigant or Complainant who Abuses the Process of Law.

¶93

PRINCIPLES GOVERNING QUASHING OF FIRs ON THE BASIS OF SETTLEMENT AND THE ROLE OF COURTS

¶94

As highlighted in discussion above, Mr. Maksood and Ms. 'M' have approached this Court seeking quashing of FIR registered for offence under Section 376 of IPC. Thus, this Court must remain guided by the principles propounded by the Hon'ble Apex Court, which govern the Constitutional Courts while adjudicating such petitions seeking quashing of FIRs on the basis of settlement/compromise.

¶95

Signature Not Verified

¶96

Page 10 of 54

¶97

W.P.(CRL.) 336/2023

¶98

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶99

In this regard, the Apex Court in case of Narinder Singh v. State of Punjab (2014) 6 SCC 466 , after taking note of decision in case of Gian Singh v. State of Punjab (2012) 10 SCC 303 , had observed as under:

¶100

"29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

¶101

29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

¶102

29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

¶103

29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

¶104

Signature Not Verified

¶105

Page 11 of 54

¶106

Signature Not Verified W.P.(CRL.) 336/2023 Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶107

29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

¶108

29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases."

¶109

17. In Parbatbhai Aahir Alias Parbathbhai Bhimsinhbhai

¶110

Karmur v. State of Gujrat (2017) 9 SCC 641, three-Judge Bench of the Hon‘ble Apex Court, after referring to several judicial precedents, had summarized the following principles qua quashing of criminal proceedings on the basis of settlement:

¶111

―16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:

¶112

16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.

¶113

16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Criminal Procedure Code, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

¶114

Signature Not Verified

¶115

Page 12 of 54

¶116

Signature Not Verified W.P.(CRL.) 336/2023 Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶117

16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

¶118

16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court.

¶119

16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

¶120

16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

¶121

16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.

¶122

16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

¶123

16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is

¶124

Signature Not Verified

¶125

Page 13 of 54

¶126

W.P.(CRL.) 336/2023

¶127

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶128

remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

¶129

16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic wellbeing of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.‖

¶130

Therefore, the consistent view expressed by the Hon'ble Apex Court has been that FIRs registered for commission of serious offences, including offence of rape, should not be quashed on the basis of settlement or compromise arrived at between the victim and the accused.

¶131

However, this Court is also conscious of the fact 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, including the Hon'ble Apex Court [ Ref: Ananda D.V. v. State 2021 SCC OnLine SC 3423 ] 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. However, the Courts while adjudicating quashing petitions in such cases, will have to analyse all the facts and circumstances of the

¶132

Signature Not Verified

¶133

Page 14 of 54

¶134

W.P.(CRL.) 336/2023

¶135

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶136

case including the facts surrounding the factum of marriage solemnized between the parties, and the parties cannot seek quashing as a matter of right.

¶137

Besides presenting before this Court the conflicting stories given by the prosecutrix and the accused, this one case highlighted many judicial mistakes too.

¶138

FIRST JUDICIAL ERROR: MECHANICALLY RECORDED STATEMENT UNDER SECTION 164 OF CR.P.C.

¶139

In the journey of the case which travelled after lodging of the FIR, at the relevant point of investigation reached the learned Magistrate for a very important duty of recording statement under Section 164 of Cr.P.C.

¶140

In the present case unfortunately, two questions were asked by the learned Magistrate to the prosecutrix who was around 40 years of age (as per Aadhaar Card filed before this Court), with two grown up children, who had studied up to 6th Standard as per the statement recorded under Section 164 of Cr.P.C., however, who states before this Court that she is illiterate and can only sign in Hindi.

¶141

Strangely, while recording the statement of the victim under Section 164 of Cr.P.C. the learned Magistrate writes as under:

¶142

Signature Not Verified

¶143

Page 15 of 54

¶144

Signature Not Verified W.P.(CRL.) 336/2023 Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶145

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.

¶146

Today, when this statement is being questioned that it was given under misunderstanding and pressure and her being under stress and inability to depose before the learned Magistrate, this Court has been constrained to note several such cases which have become a subject matter of challenge and therefore, lays down the

¶147

Signature Not Verified

¶148

Page 16 of 54

¶149

W.P.(CRL.) 336/2023

¶150

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶151

significance and guidelines qua recording of statements of sexual assault victim under Section 164 of Cr.P.C.

¶152

SIGNIFICANCE OF RECORDING STATEMENTS OF SEXUAL ASSAULT VICTIMS UNDER SECTION 164 OF CR.P.C.

¶153

The importance of recording statement of a victim of sexual assault under Section 164 of Cr.P.C., can be understood, firstly through a bare reading of the relevant portion of provision:

¶154

―(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

¶155

(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, subsection (1) or sub-section (2) of section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:

¶156

Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:

¶157

Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the

¶158

Signature Not Verified

¶159

Page 17 of 54

¶160

Signature Not Verified W.P.(CRL.) 336/2023 Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶161

assistance of an interpreter or a special educator, shall be video graphed.

¶162

(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.‖

¶163

The Hon‘ble Apex Court in case of State of Karnataka v. Shivanna (2014) 8 SCC 913 had issued certain directions to be followed in cases involving recording of statement of a victim of sexual assault under Section 164 of Cr.P.C., which are as under:

¶164

―10. On considering the same, we have accepted the suggestion offered by the learned counsel who appeared before us and hence exercising powers under Article 142 of the Constitution, we are pleased to issue interim directions in the form of mandamus to all the police station in charge in the entire country to follow the direction of this Court which are as follows:

¶165

10.1. Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/ preferably Judicial Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. A copy of the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till charge sheet/report under Section 173 Cr.P.C. is filed.

¶166

10.2. The Investigating Officer shall as far as possible take the victim to the nearest Lady Metropolitan/ preferably Lady Judicial Magistrate.

¶167

Signature Not Verified

¶168

Page 18 of 54

¶169

Signature Not Verified W.P.(CRL.) 336/2023 Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶170

10.3. The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/ preferably Lady Judicial Magistrate as aforesaid.

¶171

10.4. If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.

¶172

10.5. Medical Examination of the victim: Section 164 A Cr.P.C. inserted by Act 25 of 2005 in Cr.P.C. imposes an obligation on the part of Investigating Officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under Section 164 Cr.P.C.‖

¶173

This Court notes 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.

¶174

It is trite law that statements recorded under Section 164 of Cr.P.C. before the learned Magistrate, of a victim of sexual offence, has to be made voluntarily by the person giving such statement. Further, it is crucial that the concerned Magistrate must record his satisfaction that the person making such a statement is not temporarily or permanently disabled, either physically or mentally. In case the Magistrate forms an opinion that the victim of sexual assault who is making such statement is either temporarily or permanently disabled, physically or mentally, the Magistrate shall take the

¶175

Signature Not Verified

¶176

Page 19 of 54

¶177

W.P.(CRL.) 336/2023

¶178

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶179

assistance of an interpreter or a special educator in recording the statement and such proceedings will be video-graphed.

¶180

Thus, the learned Magistrate recording statement under Section 164 of Cr.P.C. is entrusted with a very crucial duty of writing the incident of sexual assault of victim within the four walls of chamber of the Magistrate, to ensure that the security so felt to disclose without fear or pressure the real facts, incident or happening will give right direction to a case under Section 376 of IPC. In this regard, there is a practice to ask preliminary questions which is in the form of interaction between the witness and the Magistrate to ascertain the competence of the witness to understand as to where she/he is, he understands why he is before the judge, and an assurance to the judge that the victim is not under any pressure, coercion or threat to give a statement. In case of child victims, more caution is required as the administration of oath may need to be dispensed with and the capacity to make the statement may be judged and is reflected in the statement. It is also to ensure that at the time of trial when the statement is put to the witness and at times to the Magistrate himself, the defence counsel and the concerned Trial Court Judge, in case of need for proving or confrontation are able to appreciate its evidentiary value and the defence taken by the accused effectively. The questions are asked for the above purposes.

¶181

The statement made by a victim under section 164(5A) of Cr.P.C. transcends its role as mere evidence; it stands as a testament to the profound agony the victim suffers from due to the wrongful actions of accused. It is also an emotional release, laying bare the

¶182

Signature Not Verified

¶183

Page 20 of 54

¶184

W.P.(CRL.) 336/2023

¶185

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶186

deep pain and suffering inflicted upon her — a harrowing experience akin to witnessing the shattering of her hopes and dreams and in the hope of getting justice. The words recorded in the statement under section 164 of Cr.P.C., the victim not only communicates the immediate physical harm but also the enduring impact on her dignity and self worth.

¶187

The role of Courts thus while recording such statements becomes paramount, and the same must be done with a deep sense of sensitivity towards the victim and professionalism towards the criminal adjudicatory process.

¶188

Recording of statement under Section 164 Cr.P.C. in a case of sexual assault is a critical responsibility of a magistrate as the statements so recorded also becomes part of edifice of building of a case. The preliminary examination of the victim is to ascertain her competence, intelligence and being under no pressure as well as her capacity to understand a vernacular language.

¶189

Guidelines Apropos Recording of Statement under Section 164 of Cr.P.C. of sexual assault victims

¶190

Thus, in these circumstances, this Court deems it crucial to lay down the following set of guidelines, to be followed by the learned Magistrates, while recording statements of a victim of sexual assault under Section 164 of Cr.P.C.:

¶191

Statements under Section 164 of Cr.P.C. of victims of sexual assault should not be recorded mechanically or in a typed performa .

¶192

Signature Not Verified

¶193

Page 21 of 54

¶194

W.P.(CRL.) 336/2023

¶195

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶196

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 .

¶197

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 .

¶198

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.

¶199

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.

¶200

Signature Not Verified

¶201

Page 22 of 54

¶202

Signature Not Verified W.P.(CRL.) 336/2023 Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶203

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.

¶204

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.

¶205

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.

¶206

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.”

¶207

The Magistrate must append a certificate at the end of the statement recorded under Section 164 of Cr.P.C.

¶208

Signature Not Verified

¶209

Page 23 of 54

¶210

W.P.(CRL.) 336/2023

¶211

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶212

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 .

¶213

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.

¶214

The signatures or thumb impression , as the case may be, must be taken inside the chamber/room and in presence of the Magistrate.

¶215

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.

¶216

The statement must be recorded in the language understood by the victim and it should be so reflected in the statement.

¶217

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 .

¶218

Signature Not Verified

¶219

Page 24 of 54

¶220

W.P.(CRL.) 336/2023

¶221

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶222

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 .

¶223

SECOND JUDICIAL ERROR

¶224

Another judicial error committed in this case was by the learned Sessions Court. While adjudicating the interim bail application of accused Mr. Maksood, certain facts of the case were mentioned incorrectly, and absolutely contrary and imaginary to the contents of FIR. In this regard, the relevant portion of order dated 23.11.2022 passed by learned Sessions Court is extracted hereunder:

¶225

―...Briefly, as per the contents of the FIR, the case of prosecution is that the complainant, who is a widow and handicapped lady, lives along with her children and she knows the applicant/accused for the long time being the friend of her deceased husband. On 24.09.2022 at about 6 pm, the applicant/accused came to her house and at his request, she cooked the food…‖

¶226

This Court is constrained to point out the same since the contention raised before this Court is that the learned judge granted bail on wrong facts which were totally imaginary and incase the judge would have recorded the correct facts bail would have been rejected and the accused could not have agitated before this Court that even the sessions court granted him bail on the basis of a compromise. This Court notes that contrary to the version given by

¶227

Signature Not Verified

¶228

Page 25 of 54

¶229

W.P.(CRL.) 336/2023

¶230

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶231

the prosecutrix in FIR, that she was a divorcee, the learned Sessions Judge had recorded in the above-mentioned order that prosecutrix was a widow and the accused was a long time friend of her deceased husband.

¶232

Further, the learned Sessions Court also fails to take note of the fact that the first husband of the prosecutrix was alive, and rather an agreement dated 18.04.2012 had been filed on record by the accused alongwith his interim bail application which mentions that previously also, the accused and prosecutrix had lived together for a long period of time after getting married to each other, and the husband of the prosecutrix was alive and was working in Delhi and that the prosecutrix did not want to live with him though he was ready to take care of her and the children. Had the learned 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 learned Sessions Judge would have noted that the parties could not have been validly married and that there was no document of divorce of the prosecutrix on record. The detailed observations in this regard have been recorded in succeeding paragraphs.

¶233

LOVE, LAW, LIES & LITIGATION

¶234

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 .

¶235

Signature Not Verified

¶236

Page 26 of 54

¶237

W.P.(CRL.) 336/2023

¶238

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶239

These lies have been highlighted in the succeeding paragraphs.

¶240

Alleged Compromise Deed Executed in 2012

¶241

An interesting aspect in this case emerges from the submissions made on behalf of Mr. Maksood, at the time of hearing of interim bail application before the learned Sessions Court, that he and prosecutrix Ms. ‗M‘ had been in a live-in-relationship between the period 2007 to 2012, after which they had executed a compromise deed and separated from each other, for a few months.

¶242

To fortify his submission, Mr. Maksood had also placed on record before the learned Sessions Court, a copy of the alleged compromise deed executed between Mr. Maksood and Ms. ‗M‘ on 18.04.2012. This Court has gone through the contents of the said deed, and interestingly as well as shockingly at the same time, the compromise deed reveals that Mr. Maksood had got married to Ms. ‗M‘ earlier also, and that Ms. ‗M‘ had not obtained divorce from her husband. The deed records that Ms. ‗M‘ was married to one Mr. ‗P‘ for fourteen years and out of their wedlock, one boy and one girl were born. 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 is further mentioned in the compromise deed that both the parties i.e. Ms. ‗M‘ and Mr. Maksood had decided to finally settle the matter

¶243

Signature Not Verified

¶244

Page 27 of 54

¶245

W.P.(CRL.) 336/2023

¶246

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶247

and Mr. Maksood had paid Rupees Fifty Thousand in cash to Ms. ‗M‘.

¶248

Mala Fide on Part of Prosecutrix

¶249

This Court notes that in the present case, the prosecutrix Ms. ‗M‘ had got the present FIR registered on 18.10.2022 against the accused Mr. Maksood. Though it was later disclosed before the Courts that Mr. Maksood and Ms. M had solemnized marriage on 28.10.2022 as per Muslim rites and customs, the prosecutrix Ms. ‗M‘ had not informed either the police or the Court about the same.

¶250

The records reveal that Ms. M was present before the learned Sessions Court on 05.11.2022, at the time of hearing of anticipatory bail application of Mr. Maksood, but she had not informed the Court that they had already got married to each other a week prior i.e. on 28.10.2022. The learned Sessions Court vide order dated 05.11.2022 had thus dismissed the anticipatory bail application filed by Mr. Maksood.

¶251

This Court has also perused the supplementary statements of Ms. M recorded under Section 161 of Cr.P.C on 06.11.2022 and 17.11.2022, whereby she had reiterated the allegations made by her in the FIR. However, even on the said dates, Ms. ‗M‘ had not informed the Police that she had already got married to the accused on 28.10.2022.

¶252

It is the order dated 23.11.2022, passed by learned Sessions Court, which discloses that Ms. M had then, for the first time, informed the Court about the factum of her conversion and getting

¶253

Signature Not Verified

¶254

Page 28 of 54

¶255

W.P.(CRL.) 336/2023

¶256

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶257

married to Maksod on 28.10.2022, as well as the fact that she had not disclosed the same at the time of adjudication of his anticipatory bail application on 05.11.2022 when she was already married to him.

¶258

Thus, this Court is of the opinion that even though Ms. M had got married to Mr. Maksood after converting her religion, as claimed before this Court, ten days after the FIR was registered in this case, Ms. ‗M‘, however, had misguided the police as well as the Courts by not informing them about the factum of their marriage. 49. The story further took a different turn altogether on 20.12.2022, when during the course of hearing of extension of interim bail application of accused, Ms. ‗M‘ admitted before the learned Sessions Court that she had got a false FIR registered against Mr. Maksood, and that she had misled the Court earlier at the time of adjudication of anticipatory bail of Mr. Maksood by not informing the Court that she had already got married to him.

¶259

In this regard, this Court deems it important to refer to the following observations in order dated 20.12.2022 passed by learned Sessions Court:

¶260

―…However, complainant, who is present in the court, has submitted that she had filed the present case FIR against the applicant/accused due to some misunderstanding and upon being misled by some people. She has further stated that applicant/accused has solemnized marriage with her on 28.10.2022 after her conversion, however, the said fact was not disclosed by her at the time of adjudication of application for anticipatory bail on behalf of applicant/ accused. She has further stated that she along with the applicant/accused have already filed a quashing petition before the Hon'ble High Court of Delhi vide diary number 2076373/22 on 19.12.2022. Further, she has no

¶261

Signature Not Verified

¶262

Page 29 of 54

¶263

W.P.(CRL.) 336/2023

¶264

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶265

objection in case the applicant / accused is granted extension of interim bail in the present case…‖

¶266

Again on 25.02.2023, i.e. at the time of adjudication of regular bail application of Mr. Maksood, the prosecutrix Ms. ‗M‘ stated before the learned Sessions Court that she had falsely implicated Mr. Maksood in the present FIR and he may be enlarged on bail. For the same, order dated 25.02.2023 may be referred to:

¶267

―On being asked, the victim/prosecutorix submits that on the ill advice, she had registered a false case against the accused and now she does not want any further proceedings against accused in the present case.‖

¶268

Thus 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.

¶269

Conduct of Non-Disclosure of True Facts To The Authorities By The Accused

¶270

Similarly, the conduct of the accused is also noteworthy.

¶271

As revealed from the records, though the FIR in this case was registered on 18.10.2022 and the parties herein had got married on 28.10.2022, the accused while preferring an anticipatory bail application before the learned Sessions Court had neither informed the Court about the factum of marriage solemnized between him and the prosecutrix, after the prosecutrix had converted her religion for the purpose of said marriage, nor he had informed the Court about execution of any compromise deed in the year 2012.

¶272

Signature Not Verified

¶273

Page 30 of 54

¶274

W.P.(CRL.) 336/2023

¶275

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶276

It was only at the time of hearing of interim bail application on 23.11.2022, that the accused had informed the learned Sessions Court about the aforesaid facts.

¶277

IMPORTANCE OF PARTIES APPROACHING THE JUDICIAL SYSTEM WITH CLEAN HANDS

¶278

An individual is required to approach the Court with honesty and disclosure of true facts, emphasizing the fundamental principle that those seeking justice must present themselves before the Court with clean hands.

¶279

This recurring trend of parties failing to adhere to the foundational principle of approaching the Courts with clean hands raises significant concerns about effort to manipulate the legal process. Courts rely on the information presented before it for the purpose of making informed legal decisions by application of law, and the deliberate suppression or misrepresentation of material facts definitely comes in the way of dispensation of fair and just decisions. 58. The doctrine that those seeking equity must do equity and must come with clean hands highlights the importance of transparency in legal proceedings. It is not merely a procedural formality but a vital ethical obligation that litigants must fulfill. The duty to approach the Court with clean hands extends beyond the legal realm; it is a moral obligation that ensures the sanctity of the justice-seeking process.

¶280

In response to such practices, the Courts have consistently and unequivocally asserted that the suppression of material facts and a lack of candor in presenting one's case can lead to a denial of relief. It

¶281

Signature Not Verified

¶282

Page 31 of 54

¶283

W.P.(CRL.) 336/2023

¶284

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶285

acts as a check on any party attempting to gain an unfair advantage by withholding crucial information. The principle of clean hands ensures that the Court's time and resources are dedicated to resolving disputes based on a complete and accurate understanding of the facts.

¶286

NO DOCUMENT TO SHOW THAT MS. M HAD OBTAINED DIVORCE FROM MR. P AND WAS THUS COMPETENT TO SOLEMNIZE MARRIAGE WITH ACCUSED EVEN AFTER CONVERSION TO ISLAM

¶287

In the present case, the prosecutrix Ms. ‗M‘ had stated in her initial complaint that she was a divorcee, and the accused herein was a friend of her ex-husband. Ten days post the registration of present FIR, Ms. M and Mr. Maksood were married to each other, as per Muslim customs and rights, and for the solemnization of marriage, Ms. ‗M‘ had converted her religion to Islam on the same day prior to solemnization of marriage.

¶288

However, this Court notes that the Investigating Officer in this case had issued a notice on 01.11.2022 to the prosecutrix to produce documents in respect of divorce obtained by her from her first husband Mr. P. However, Ms. M had failed to provide any documents to prove that she was divorced as per law from her previous husband, so as to be capable of entering into another marriage, as per law, and to ensure that this second marriage was not bigamous. It was more crucial since she appears before this Court supporting the petitioner‘s plea for quashing the FIR on the basis of marriage solemnized between them.

¶289

Signature Not Verified

¶290

Page 32 of 54

¶291

W.P.(CRL.) 336/2023

¶292

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶293

Therefore, no documents have 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 Mr. Maksood or any other person.

¶294

This aspect gains even more importance in this case since the contents of the compromise deed dated 18.04.2012 also revealed that Ms. M and Mr. Maksood had got married to each other in the past as well even though Ms. M was still the legally wedded wife of her husband Mr. P and was a Hindu and Mr. Maksood followed Islam.

¶295

THE CONCERNS OF COURT REGARDING THE PROCESS FOLLOWED FOR RELIGIOUS CONVERSIONS SOLELY FOR THE PURPOSE OF MARRIAGE

¶296

The Courts in India have Religiously Guided the Religious Sanctity of a Person’s Choice to Practice Any Religion

¶297

While legal limits on religious conversions in India have been apparent through certain State legislations, the core sentiment of freedom of practicing any religion is enshrined in the Constitution of our country itself.

¶298

At the cost of repetition, it is to be reiterated and impressed that the Courts have never come in the way of a person practicing any religion or not practicing any religion according to his choice, as the same is respected and guaranteed in the form

¶299

Signature Not Verified

¶300

Page 33 of 54

¶301

W.P.(CRL.) 336/2023

¶302

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶303

of right of freedom of choice to practice any religion under Article 25 of the Indian Constitution .

¶304

The need to deal with issue of conversion was necessitated in this case, since it was vehemently and repeatedly argued by the learned counsel for the petitioner as well as the complainant that the conversion and consequent marriage of the prosecutrix with the petitioner makes out a strong case in their favour for quashing. Since this Court has to deal with this argument in detail to decide the present case, the need to deal with this issue arose .

¶305

In this regard, this Court notes with strong sense of dissatisfaction and regret that the prosecutrix/respondent no. 2, who had lodged an FIR under Section 376 of IPC against the petitioner for having sexually assaulted her, married him after registration of FIR. The facts and investigation revealed the story of love, lies, law, and litigation as it transpired that in the year 2012 itself, the petitioner herein and the prosecutrix, who were already married to different partners, had married each other. The petitioner as per his personal law could marry for a second time but he could not have married the prosecutrix/respondent no. 2, who was a Hindu, as her husband was alive and she was not divorced. Interestingly, the said compromise deed filed by the petitioner, and not disputed by the respondent no. 2, mentions the name of petitioner as Mr. Maksood alias Manoj and the factum of both having married after being in a live-in relationship, a compromise between them which was never

¶306

Signature Not Verified

¶307

Page 34 of 54

¶308

W.P.(CRL.) 336/2023

¶309

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶310

brought to the knowledge of police or the Sessions Court at any stage of proceedings prior to arrest of the petitioner.

¶311

The proceedings and investigations further reveal that both the parties herein did not approach the police, religious or judicial authorities with clean hands. The respondent no. 2, in the agreement of the year 2012, mentions that she is married to the petitioner, though her husband Mr. P was alive and willing to take care of her and children born out of her wedlock with her husband Mr. P. Till date, she has not been able to produce before this Court or any other Court or the investigating agency, despite being asked to produce, the documents regarding her divorce with her first husband.

¶312

The timing of the marriage is crucial too which is being made basis of plea for quashing. The same took place on the same date of her conversion in the year 2022, ten days after registration of FIR.

¶313

The need for conversion arose after registration of FIR as the accused could not have married the prosecutrix under Special Marriage Act, 1954 without his divorce from his first wife and divorce of the prosecutrix from her husband. The prosecutrix, in any case being governed by the law of monogamy, whether as a Hindu or after conversion to Islam, could not have married the accused without being divorced from her first husband, for which she has no document and rather there is a document to the contrary.

¶314

The concern of the Court was critical as case after case, one is confronted with cases where conversion to one religion or the other only for the purpose of marriage and evading law has

¶315

Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶316

Page 35 of 54

¶317

W.P.(CRL.) 336/2023

¶318

deeply troubled the judicial conscience of this Court. More so, since in many cases, quashing of FIR lodged under Section 376 of IPC is sought on the ground of conversions and marriage between the accused and the victim which is followed by divorce or desertion of the victim after quashing of the FIR .

¶319

The marriage between petitioner and the respondent no. 2 is prima facie not valid, however, she has been assured by the accused of its validity by virtue of a Nikahnama . She and probably the accused presumed that they are legally married due to the conversion of the prosecutrix, however, they are not. Therefore, the very basis of their contention that FIR be quashed since they are married now, is meritless.

¶320

Thus, in this situation, there arises deep concern regarding such conversions and marriages. The conversions, many a times, are only for the purpose of facilitating inter-faith marriages, the religion may be any and this order is not referring to any one or specific religion or conversion of one gender.

¶321

The respondent no. 2 is unfortunately illiterate and can only sign in Hindi. She does not know Urdu and there is nothing in the certificate of marriage i.e. Nikahnama which shows that the contents of Nikahnama or the conversion certificate which also is in Urdu was explained to her. As per investigating officer, no documents were available in the office record where the conversation and Nikah had taken place between the parties. The IO has submitted that during investigation that only ID card of the prosecutrix and the accused

¶322

Signature Not Verified

¶323

Page 36 of 54

¶324

W.P.(CRL.) 336/2023

¶325

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶326

were available in one office, situated behind Tis Hazari Court, where conversion and Nikah took place.

¶327

When respondent no. 2 appeared before this Court, during interaction with the Court, she disclosed her name as ‗X‘ which is not her name after her conversion. The respondent no. 2, when asked about her name could not disclose her name to be one which as per conversion certificate placed on record was given to her after her conversion to Islam. She was using her original name, however, she was prompted by the petitioner in the Court to tell her name as ‗B‘. The petitioner was continuously prompting her about the questions being asked to her. He was asked not to do so.

¶328

In the interaction with the Court during in-camera proceedings, in the presence of learned counsel for the accused and learned ASC for the State and investigating officer, the prosecutrix stated that at the time of conversion, she was only told that for the purpose of getting married to the petitioner, she will have to convert to Islam and for that purpose only, she had converted. She was only told that she will have to offer Namaz five times a day, and except that, she was not informed about what she should expect and as to how her rights which she had enjoyed, till date in a matrimonial union as a Hindu, will not be available to her after conversion to Islam. She was not aware about anything including the law regarding maintenance or Mehr . She did not know Urdu, but the conversion certificate as well as the marriage certificate and Nikahnama were in Urdu. The investigating officer was unable to locate the Qazi, who had got the parties married in a place which is an office and not a religious place.

¶329

Signature Not Verified

¶330

Page 37 of 54

¶331

W.P.(CRL.) 336/2023

¶332

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶333

The said office did not have any document furnished by the parties except the Identity cards, though the parties stated that they had tendered certain documents to the person who had solemnized their marriage. It was admitted that the factum of the first marriage of the accused was known to the prosecutrix herein and the factum of first marriage of prosecutrix was known to the accused, however, both of them had misguided the Qazi . In a nutshell, for the prosecutrix to get married to Mr. Maksood, she had to cross the barrier of conversion to Islam which was one of the conditions put by the accused. She states that she had converted only for the purpose of marrying him.

¶334

Conversion to another religion which is uninformed may not prepare a convert with the consequences that they will now not be able to follow their form of religion in case the religion they are converting to, does not permit so. This becomes more critical in case their reverting back to their religion may ensue legal, matrimonial, succession and custody related consequences. This Court is only concerned with such situations. These situations may arise by conversion to any religion whatsoever .

¶335

In the present case, the conversion is with the consent of the prosecutrix herself and this Court has no occasion to either raise any objection to it, nor the Court is authorized to do so but the cause of such conversion being solely for the purpose of getting married to the petitioner and not out of following the faith and without understanding the consequences thereof may complicate their life further in future which is not the intent of any religion or conversion.

¶336

Signature Not Verified

¶337

Page 38 of 54

¶338

W.P.(CRL.) 336/2023

¶339

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶340

It is not clear whether the person concerned i.e. Qazi was authorized or not for the purpose of conversion as he could not be located or found by the IO concerned at the place where conversion and Nikah had taken place. 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.

¶341

In these circumstances, since this Court cannot make any law neither intends to do so but only being concerned with the restrictions and outcome of such cases, deems it apposite to lay down certain guidelines to be followed for conversion of religion, be it any religion, solely for the purpose of conducting marriages except under Special Marriage Act, 1954.

¶342

RELIGIOUS CONVERSIONS SOLELY FOR THE PURPOSE

¶343

OF SOLEMNIZATION OF INTER-FAITH MARRIAGES: CRUCIAL ASPECTS TO BE FOLLOWED

¶344

1. Informed Consent and Understanding:

¶345

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

¶346

Signature Not Verified

¶347

Page 39 of 54

¶348

W.P.(CRL.) 336/2023

¶349

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶350

willingly embraces the decision to convert, fully cognizant of the multifaceted implications embedded in such a significant life choice. 82. 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.

¶351

2. Communication in Native Language:

¶352

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.

¶353

Essentially, the communication process must align with the linguistic preferences and understanding of the person involved, ensuring that the information is presented in a language they are familiar with and proficient in. The choice of language holds immense significance, as it facilitates not only comprehension but also a meaningful exchange of ideas.

¶354

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. It is further noted that the language used should be simple and clear which directly

¶355

Signature Not Verified

¶356

Page 40 of 54

¶357

W.P.(CRL.) 336/2023

¶358

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶359

communicates the religious and legal implications of the conversion. It enables the individuals to comprehend the implications, responsibilities, and consequences associated with such a conversion. 86. This Court emphasizes that the communication should not only be linguistically understood. By prioritizing clear understanding by the prospective convert, this guideline ensures that the individual is equipped with a comprehensive understanding of the transformative journey they are embarking upon and the conversion is completely voluntary .

¶360

3. Legal Implications of Conversion Be Explained: Succession & Inheritance, Maintenance, Custody of Children, Rights of the Spouse to Personal Law After Conversion

¶361

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.

¶362

Thus, the legal ramifications of the conversion necessitate thorough explanation, which involves clarifying its impact on matters of inheritance and successions, ensuring that the individual is cognizant of the legal consequences that may ensue. A transparent discussion about the intricacies of the religious framework ensures that the person making this crucial choice is well-informed about the

¶363

Signature Not Verified

¶364

Page 41 of 54

¶365

W.P.(CRL.) 336/2023

¶366

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶367

religious framework they are entering in. Thus, by providing a detailed understanding of the religious and its associated ramifications, the individual must be made aware of the potential shifts in his or her legal standing post-conversion.

¶368

This aims to prevent any legal complications that may arise due to oversight or lack of information during the process of conversion. Ensuring that the individual is well-versed in the religious and its associated aspects of the conversion process contributes to informed decision-making.

¶369

4. Religious Repercussions of Conversion for the Purpose of Inter-faith Marriage:

¶370

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. This encompasses explaining whether certain practices, such as idol worship in case of Hindus, will be allowed or prohibited within the new found religious framework. Providing insights into the broader religious context aids the person in understanding the cultural and spiritual dimensions of their decision.

¶371

Furthermore, this Court emphasizes through this guideline the importance of discussing any restrictions or allowances related to religious practices post-conversion. Addressing potential restrictions ensures that the individual is well aware of any limitations or modifications in their religious practices that may arise as a consequence of the conversion. Simultaneously, highlighting

¶372

Signature Not Verified

¶373

Page 42 of 54

¶374

W.P.(CRL.) 336/2023

¶375

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶376

allowances enables the person to appreciate the freedoms and privileges they may enjoy within the framework of their newly adopted religious identity.

¶377

5. Marital Consequences in Marriages after Conversion:

¶378

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. It is important to clarify and explain the rites, rituals, and obligations associated with the marital union following the conversion. Addressing these marital repercussions ensures that the person is fully aware of the commitments and dynamics involved in their marital journey.

¶379

It must also be explained as to what are the specific personal law rights available to one of the partners and whether the same will be available to the prospective convert or not. For example, in case of conversion of a female to another religion, she must know the nonprohibition for husband to follow polygamy and the restriction of monogamy being still applicable to her despite her conversion. It will be applicable in a vis-a-versa situation. Needless to say, this is an example and will be applicable to any religious conversion for the purpose of marriage.

¶380

This will entail elucidating the specific procedures and practices involved in getting married within the chosen religious framework. Whether it involves a religious ceremony, legal formalities, or a combination of both, the individual must have a clear understanding of how their marriage will be solemnized.

¶381

Signature Not Verified

¶382

Page 43 of 54

¶383

W.P.(CRL.) 336/2023

¶384

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶385

Additionally, this guideline highlights the importance of addressing potential dissolution scenarios, ensuring that the person is wellinformed about the processes and legalities involved in ending a marriage within the adopted faith.

¶386

It will ensure a sense of understanding and preparedness, enabling the prospective convert to make informed decisions about their commitment to marriage within the context of their newly adopted religious beliefs.

¶387

6. Identity Verification of the Prospective Spouses:

¶388

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. This verification process is important to ensure transparency and authenticity throughout the conversion and subsequent marriage proceedings.

¶389

7. Affidavit for Marital History:

¶390

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. The purpose of this affidavit is to promote transparency creating an environment of trust between the parties involved.

¶391

Signature Not Verified

¶392

Page 44 of 54

¶393

W.P.(CRL.) 336/2023

¶394

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶395

8. Scope for Reverting Back to Original Religion:

¶396

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.

¶397

GUIDELINES

¶398

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.

¶399

Thus, to give effect to aforesaid aspects and observations, the following guidelines are laid down by this Court :

¶400

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:

¶401

(a) Affidavit regarding the Age, marital history and marital status and evidence thereof of both the parties .

¶402

(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 .

¶403

Signature Not Verified

¶404

Page 45 of 54

¶405

Signature Not Verified W.P.(CRL.) 336/2023 Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶406

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.

¶407

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 .

¶408

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.

¶409

Note of Caution

¶410

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

¶411

Signature Not Verified

¶412

Page 46 of 54

¶413

W.P.(CRL.) 336/2023

¶414

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶415

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 .

¶416

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 .

¶417

CONCLUSION

¶418

Each page of this case file revealed one after another layer and level of lies and manipulation by both the parties, as if it was not a petition but an object with thousand layers revealing one colour after another.

¶419

The present case brings to light a convoluted scenario marked by a web of deceit that extends beyond the immediate parties to encompass religious authorities, even deceiving the Qazi involved . At the heart of this complexity is the deliberate concealment of crucial information related to the prosecutrix's marital status. As noticed hereinabove, it came to this Court's attention that the prosecutrix was not legally divorced from her first husband, a fact

¶420

Signature Not Verified

¶421

Page 47 of 54

¶422

W.P.(CRL.) 336/2023

¶423

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶424

that renders her ineligible for remarriage without proper legal dissolution of her prior union. This deliberate withholding of pertinent details by both the parties not only violates legal requirements but also raises questions about the candor and forthrightness of the involved parties. This intricacy adds a layer of complexity to the case, where the parties have lied to the religious authorities too.

¶425

A Court should not be trapped in the legal intricacies which will amount to straying from the principle of protecting not only the complainant but also the offender, in case he has been falsely implicated, and at the same time protect the purity of the judicial system from being encroached upon and manipulated by a manipulative and an abusive complainant or accused.

¶426

Any manipulation to take the criminal justice system for a ride needs to be corrected, and such cases are not only a strain on the heavily burdened courts, but also a stain on the character of the man if in a case registered under Section 376 of IPC, he has been falsely implicated.

¶427

In the present case, it is not about pure love culminating into marriage between the parties which could have become a basis for quashing the FIR.

¶428

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

¶429

Signature Not Verified

¶430

Page 48 of 54

¶431

W.P.(CRL.) 336/2023

¶432

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶433

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.

¶434

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.

¶435

The Decision

¶436

There should not be an expectation that as a matter of right, subsequent marriage between the prosecutrix and the accused is sufficient ground for quashing the FIR of every case registered under Section 376 of IPC . Needless to say, every case has to be adjudged strictly on the basis of evidence, conduct of the parties, their age, etc., and other material available on record.

¶437

Having carefully examined the entire records of the case, as well as the contents of this petition, and having considered the discussion made in preceding paragraphs and examined the facts and circumstances of the present case on the anvil of the principles laid down by the Hon'ble Apex Court in several judicial precedents governing quashing of FIRs based on settlement/compromise, this Court reaches the following conclusions:

¶438

Allegations against the accused: The allegations leveled by the prosecutrix/respondent no. 2 against the petitioner/

¶439

Signature Not Verified

¶440

Page 49 of 54

¶441

W.P.(CRL.) 336/2023

¶442

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶443

accused in the FIR were serious in nature, alleging therein that accused, after intoxicating the prosecutrix, had established sexual relations with her without her consent, and had also extended threats to her to not disclose about the incident to anyone. The same allegations were reiterated by her in the statement recorded under Section 164 of Cr.P.C before the learned Magistrate, as well as in two supplementary statements recorded under Section 161 of Cr.P.C.

¶444

Misconduct on the part of prosecutrix: The misconduct of the prosecutrix is writ large, as she had lied at every stage and misguided the police as well as the Courts. The Court acknowledges the present case as one marked by mala fide intentions on the part of the prosecutrix, Ms. 'M', who failed to disclose before the Courts and the investigating authorities, the factum of her marriage to the accused Mr. Maksood, for almost a month after the registration of FIR. Despite attending court proceedings and recording statements, she consistently omitted the crucial information about her conversion and marriage. The turning point came during the hearing on 20.12.2022 when Ms. 'M' admitted to filing a false FIR against the accused and for misleading the courts. Subsequently, during the adjudication of the regular bail application on 25.02.2023, she expressed a desire to drop further proceedings against the accused, further emphasizing her

¶445

Signature Not Verified

¶446

Page 50 of 54

¶447

W.P.(CRL.) 336/2023

¶448

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶449

inconsistent and misleading conduct throughout the investigation and court proceedings.

¶450

Simultaneously, the conduct of the accused also raises questions, given the delay in revealing the marriage and compromise deed executed in the year 2012, before the learned Sessions Court. The accused's failure to disclose these vital facts during the anticipatory bail application reflects lack of transparency on his part. This Court, thus, notes that both parties have not approached the courts with clean hands, with each contributing to the confusion and complicating the legal proceedings.

¶451

Previous Marriage, Compromise, and the Quashing: The parties herein base their plea for quashing solely on the ground of compromise that they have entered into a marital union. Before averting to this ground, it is crucial to emphasize that quashing, especially in cases falling under Section 376 of the IPC, cannot be considered a standard practice. Even if this Court entertains the possibility of a settlement, it must scrutinize whether the compromise is such and pertains to the marital aspect between the parties, that it warrants quashing of FIR. Herein lies a critical concern– the prosecutrix was already married to her first husband. The investigation of the case reveals that the prosecutrix has not taken divorce from her previous husband and neither has she filed any document which establishes that she is divorced from her

¶452

Signature Not Verified

¶453

Page 51 of 54

¶454

W.P.(CRL.) 336/2023

¶455

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶456

first husband, even though she mentions in her complaint that she was a divorcee, thus casting doubt on the legality of the marriage solemnized between the accused and the prosecutrix itself. One document i.e. compromise deed 18.04.2022 filed by the accused before the learned Sessions Court, and not disputed by the prosecutrix as such, reflects that several years ago, the accused and the prosecutrix had lived together for a considerable period of time after getting to married to each other, even though the marriage between the prosecutrix and her husband was subsisting and she had not obtained any divorce. This raises suspicion about the validity of the marriage between the prosecutrix and the accused, as it appears from the record that the prosecutrix is still married to her previous husband, and therefore she cannot enter into a second marriage without divorcing her previous husband. Thus, this Court is of the opinion that whether the marriage solemnized between the prosecutrix and the accused vide Nikahnama dated 28.10.2022, 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.

¶457

Suspicious circumstances surrounding the marriage of prosecutrix and accused: This Court also looks such marriage with suspicion, and the bona fides of accused

¶458

Signature Not Verified

¶459

Page 52 of 54

¶460

W.P.(CRL.) 336/2023

¶461

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶462

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.

¶463

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.

¶464

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

¶465

Signature Not Verified

¶466

Page 53 of 54

¶467

W.P.(CRL.) 336/2023

¶468

Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

¶469

against both the parties in case it is proved that they had misguided the Court or committed perjury.

¶470

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.

¶471

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 .

¶472

In view thereof, the present petition stands dismissed.

¶473

The judgment be uploaded on the website forthwith.

¶474

SWARANA KANTA SHARMA, J

¶475

JANUARY 19, 2023/ns

¶476

Signature Not Verified

¶477

Page 54 of 54

¶478

Signature Not Verified W.P.(CRL.) 336/2023 Digitally Signed By:ZEENAT PRAVEEN Signing Da te:1 9.01.2024 17:20:58

Maksood Ahmad v. State of NCT of Delhi & Anr.

Case brief

What is this about?

What did the court decide?

Maksood Ahmad v. State of NCT of Delhi & Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sh. Ankit Bhati Vs the State NCT of Delhi and Ors.

Guddi Khatoon Vs Commissioner of Police & Ors.

Vinod Kumar Vs State (Gnct of Delhi)

Rishabh Khari Vs the State Goverment of NCT of Delhi & Ors.

Nazia Ali Vs State of Delhi & Anr.

Raj Singh @ Raju Vs State (G.N.C.T. of Delhi)

Nazam Vs State (N.C.T. of Delhi) & Anr.

Ankit Garg and Others Vs the State Govt. of NCT of Delhi

Kuzbayeva Maral Vs the State N.C.T. of Delhi

Rohit Shokeen & Ors. Vs the Satae NCT of Delhi & Anr.

Tejas Sai Vs State NCT of Delhi & Anr.

Rohit & Anr. Vs the State (Gnct of Delhi) & Ors.

Aradhya Bais Vs State NCT of Delhi & Anr.