The Delhi High Court has rejected the trial court’s judgment of sentencing 'Peepli-Live' co-director Mahmood Farooqui. On Monday (Sept 25), the court acquitted Farooqui in the rape case of a US researcher. He had earlier been awarded a seven-year jail term.
“It remains in doubt whether such an incident, as has been narrated… took place, and if at all it took place, it was without the consent/will of the prosecutrix (the woman). And if it was without the consent… whether the appellant (Farooqui) could discern/understand the same,” said Justice Ashutosh Kumar in an 82-page judgment, Indian Express stated.
Kumar failed to trust the survivor’s argument. He said that a “no” may not always mean a "no" in acts of passion. In the whole judgment, he spent a large chunk explaining how the woman couldn’t assert her position of denial of consent.
He said that a feeble “no” may mean a “yes”. Instead of discouraging Farooqui’s act, he blamed the survivor for not putting her words forth clearly.
"When parties know each other, are persons of letters, and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble "no" was actually a denial of consent," said the judge, News 18 reports.
Anusha Rizvi, Farooqui’s wife, told Indian Express that she feels “very relieved”.
“Vindicated… victory of truth. I feel grateful to judiciary, legal team,” she said.
SheThePeople.TV spoke to Rishikant of Shakti Vahini. He said he will comment after reading the judgment. But he showed “shock” over the judgment. “Victims are always alone and they experience the whole process of fighting the case alone. No one can understand their pain,” said Rishikant.
"Even if it is not verbal, if she said no, whether it is 'feeble' or not, one needs to demonstrate it clearly that she made an affirmative move. If she took a person's hand without any coercion and put it on her body, that is one way to demonstrate consent," Karuna Nundy, SC Lawyer
Justice Kumar points out that no one knows if the victim spelt out rejection or if the appellant knew about it. Hence, the court set aside the punishment.
"In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent. It may not necessarily always mean yes in case of yes or no in case of no," read the HC judgment.
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On the matter of consent, Supreme Court lawyer Karuna Nundy told us, "When it is accepted that a woman said 'No', any consent after that has to be voluntary and unequivocal. Even if it is not verbal, if she said no whether it is "feeble" or not, one needs to demonstrate it clearly that she made an affirmative move. If she took a person's hand without any coercion and put it on her body, that is one way to demonstrate consent. There is no such record or demonstration of consent in this case prior to the sexual assault."
There is an allegation in this case that subsequent to the sexual assault, the victim pretended orgasm. But there was nothing subsequent to show that a 'yes' -- whether verbal or non-verbal -- overwrote that 'no'."
Clearly, the Delhi HC closed the case with a doubt over the fact that any sexual assault took place. And if it did take place, then if it was without the consent of the woman or not. Or If she did deny him of consent, did he understand it considering his condition of bipolar disorder?
Picture credit- KoiMoi
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