- Citation: CRL.A.944/2016
- Bench: Hon'ble Mr Justice Ashutosh Kumar
- Petitioners: Mahmood Farooqui
- Respondents: State (Govt Of Nct Of Delhi)
Facts of the case: The plaintiff in the Farooqui case was an American PhD student who, as part of her study, had met with media star Farooqui many times. The incident happened at his home after the complainant had been invited to accompany him and his wife to a local wedding. The accused was drunk when the defendant entered, and the wife was not in the house. He performed oral sex on her, forcefully. She claimed she didn't want to indulge in oral sex and that she kept pulling it up because "the defendant attempted to take down her panties." She refused, but was held down violently because soon as it was done she wanted to leave the room. The complainant, in her email to the accused, is quoted as having said “I told you many times I didn’t want to. But you did become forceful. I went along, because I did not want things to escalate… I was just afraid that something bad would happen if I didn’t, it was because of pressure and your own force physically on me.”
Judgements:The first two rape conditions were met: oral sex was against her will, and without her consent. The plaintiff said no, attempted to hold the accused off her clothes and tried to drive him further. Her relinquishing resistance in fear is a consent gained by fear of harm.
Instead of enforcing the consent law as it was adopted in 2013, the court added an extra requirement for "intellectually / academically qualified" women "with letters." The court ruled that a well educated women needed to make clear to the accused her "unwillingness." The court held that the accused failed to understand the 'no' repeatedly issued, and the resistance.It further held that in cases where “physical contacts” have existed between the parties in the past “it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.” The use of the term “feeble” is concerning as at no point in any of the complaint’s cross-examination or evidence given was this suggested. Further to place an additional burden upon the complainant -ensuring the perpetrator understands her lack of consent- goes against the legal provisions in force for prosecuting rape, and undermines the definition of sexual consent. The Delhi High Court, for crimes related to sexual harassment, including the current consent clause, did not follow the values and the enforcement of the law as adopted in 2013. Rather, the court was more confident applying section 90 of the Indian Penal Code, the 'consent considered to be given under fear or suspicion' clause for all criminal offences.
