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A Feeble No is a Yes: Is It? Mahmood Farooqui v. State (Govt of NCT of Delhi)

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The Delhi High Court’s recent decision in Mahmood Farooqui v. State (Govt of NCT of Delhi) provides a clear example of the law’s aversion to change. The persistence of law inside dominant social, cultural, and sexual norms frequently violates the logic and goal of legal changes, leaving us with more law but little freedom or justice. Noteworthy amendments were implemented to the rape law provisions in the Indian Penal Code, 1860 in 2013, which included the insertion of a definition of consent in rape cases. However, the high court’s anti-feminist interpretation in the said case has utterly nullified the definition of sexual consent’s goal and intent. The supreme court has once again proven the rigidity and fixity of the conservative legal framework by overturning a trial court judgement which dramatically recognised rape as loss of control over one’s sexuality. The preconceptions of an ideal rape victim is plain and simple as per the court, genuine rape, real resistance, and authentic consent are all that remains. In 2013 the amendments had defined consent as “an unequivocal voluntary agreement when a woman signals intent to participate in a specific sexual act through words, gestures, or any other form of verbal or nonverbal communication.” This definition is used in conjunction with the broader definition of rape. In addition, the 2013 changes included a seventh section to Section 375, which stipulates that a male is guilty of rape if the woman “is unable to communicate consent.” In its most limited sense, this could relate to instances in which someone is unable to communicate owing to a physical or mental impairment. However, this can also refer to instances in which a woman is denied the opportunity to speak and be heard, leaving her unable to communicate.

In this particular case, Mahmood Farooqui, the appellant here was accused of Rape under section 376 of IPC. The prosecutrix in this case is a student from Columbia University in New York. She met with the accused through a common friend and Mahmood invited her to a wedding. The charge against the accused was that on March 28, 2015, he undertook forcible oral sex on the prosecutrix in his flat without her consent, and the offender’s defence at the trial court stage was that such a case hadn’t ever occurred; however, after being convicted at the trial court stage, the accused
proposed a different argument (that was acknowledged by the court) that, if the act of oral sex had taken place, it was with the consent of the prosecutrix. Oral testimony, call detail records, and several emails and WhatsApp discussions were among the evidence presented by both parties. The High court acquitted the appellant on the basis that the prosecution’s events appeared improbable, and even if they were probable, it was unclear whether they occurred without the prosecutrix’s consent, and even if the events occurred without the prosecutrix’s consent, it was unclear whether the accused understood this lack of consent.”

So the question here is, Did the accused understand her lack of consent?

Talking about effective communication where both parties understand what they mean, the court had an interesting opinion which was the basis of ruling in this particular case. The sexual partners are equally responsible for obtaining a “unequivocal voluntary agreement” under this concept. In addition to the woman’s willingness to participate, the male must be accountable and sincere in his understanding and appreciation of what is being expressed. Far from grasping this significant shift in
understanding of consenting sexuality, the Farooqui decision falls short of conceiving sexual freedom for women. Instead, the feminist shift in the concept of consent is being undone in a variety of ways. The ruling replaces the woman and reinstitutes the male as the subject of law, rejecting
feminist reforms. The court’s conclusion was based on what the man understood, not what the lady said: “even though the act was not done with her consent, she actually transmitted something that the appellant took as consent.” As a result, the woman’s voice in questions of sexuality was effectively silenced. Also the court’s questions were framed from the man’s perspective: “whether the appellant mistakenly accepted the prosecutrix’s moves as consent; whether the prosecutrix’s feelings could be effectively communicated to the appellant; and whether mistaking all of this for genuine consent by the appellant.” Moreover, the court stated that “the prosecutrix’s unwillingness was only in her own mind and heart, but she communicated something different to the
appellant. It is unclear at when point during the act she did not grant her consent, and it is safe to assume that the appellant was completely unaware of the prosecutrix’s unwillingness. It is not uncommon for one of the parties to be less willing or even unwilling during sexual actions, but when there is assumed permission, it makes no difference whether one of the couples is hesitant. Such faint hesitancy may never be interpreted as a positive rejection of the other partner’s advances.”1
The court attempted to read stereotypes into consent by stating that a ‘feeble no’ from a woman can be taken into account as a ‘yes’ in some circumstances, and by distinguishing between the ‘no’ of a learned woman versus a more orthodox woman, and when the victim knows the accused versus when they are strangers. In this concept, women (especially “intellectually/academically capable” women) are expected to be loud (not feeble), aggressive (not timid), and show “genuine opposition” (not feeble disinclination).

The court’s explanation of section 375 requires a ‘unequivocal willingness from the victim to the sexual act,’ which implies that “men should receive affirmative expressions of consent, regardless of whether this is a common practise in our sexual encounters or not,” but nowhere are these kinds of subtleties added to meet the criteria of consent from a female.

In my opinion, the judgement here is flawed reason being the High Court entirely dismissed important aspects in the facts of the case. The prosecutrix did say no, she denied accused’s advancements on her body but the court only considered the point where in her no was timid and feeble. In the trial court, the accused denied the entire situation in one god, what does that say about the accused? Later on he said that it did happen with her consent, then what was the reason of lying in the trial court hearing? How is it possible that the high court dismissed several important aspects of this case and just blamed it on the prosecutrix that you should’ve been clearer with your
disagreement. How was the man not expected to understand that she said no, not once but twice. Verbally as well as through her body language when he pulled her underwear down and she pulled it back up. How is it that the man in this case was not expected to ask id she wanted oral sex or not?
This judgement had a chance to write history with respect to the amendment in rape laws but has set a really negative precedent for the coming future.

Author’s Disclaimer: This article is written on the basis of personal judgments and pure opinions.

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