A high court judge has set aside the rape conviction of a prominent Indian actor and director, saying that a “feeble no” may mean a “yes” to sex – a case that has revived debate in India over the meaning of consent in rape cases.
On Monday, Delhi High Court Justice Ashutosh Kumar set aside the rape conviction of Mahmood Farooqui, who was convicted last year of raping a Columbia University graduate student in his New Delhi home. In a lengthy ruling, Kumar said it was likely that Farooqui had “no idea” the alleged victim was an unwilling participant in an act of oral sex, in part because she feigned orgasm.
According to Kumar’s ruling, the young woman, who was studying on a Fulbright scholarship at Delhi University, was introduced to Farooqui by a mutual friend in 2014. She hoped that Farooqui could help her with her studies, the judge wrote. The two became friends and kissed each other on two previous occasions, according to testimony.
In March, 2015, she arrived at his New Delhi home, thinking she was going to accompany him to a wedding along with his wife, Anusha Rizvi, also a filmmaker. But Farooqui – drunk and “lachrymose” as the judge put it – was alone. He attempted to kiss her and begged her for oral sex, finally forcing himself upon her, the victim testified. Scared, she feigned orgasm to end the encounter, she testified.
“You were supposed to be my friend,” the alleged victim wrote him in an email after the event, according to the ruling. “Instead you manipulated me. You hurt me. I said no. I said no many times.”
The student later returned to Columbia, where she eventually filed a complaint with the school. She returned to India four months later to file an official complaint of rape with Indian police.Farooqi – a famed Urdu storyteller who co-directed a popular film called “Peepli Live” – was convicted in July 2016 and sentenced to seven years in prison.
In his ruling, Kumar wrote that it was doubtful the incident took place as she described or, in any case, without her consent. “Under such circumstances, benefit of the doubt is necessarily given to the appellant,” he wrote.
According to Kumar:
“Instances of woman behavior are not unknown that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied. … But same would not be the situation when parties are known to 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.”
Despite a clear definition of consent in the Indian Penal Code – which includes both verbal and nonverbal communication – judges and lawyers in Indian courtrooms have long blurred those lines, arguing that women who wear provocative clothes, stay out late or do not fight back fiercely enough against their attackers are actually providing consent.
“I am deeply concerned with the language. It is an absolutely incorrect interpretation of consent, which has statutorily been defined already,” lawyer Rebecca John told the Times of India. “The language used is neither legal, nor factual. This is the same misogynistic response we have fought for years.”
Farooqui’s supporters in the Indian theater and movie community lauded the judge’s decision.
“All the family members and friends of Mahmood Farooqui are relieved,” his wife said in a statement to the newspaper. “We followed the law to the T. We had faith in the justice system of the country. We were shocked when the trial court had convicted him and that’s why we took the matter to the High Court. Given the evidence, he has now been acquitted.”
(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)