A day after the Delhi High Court acquitted Peepli Live director Mahmood Farooqui of charges of rape, the counsel of the US woman scholar said the court order is “dishonest on fact and in law”.
Advocate Vrinda Grover, counsel for the woman who accused Farooqui, said, “We have read the judgment. It is dishonest on fact and in law. We will move the Supreme Court challenging the acquittal order.”
The HC, while acquitting Farooqui, said that “… it remains in doubt as to whether such an incident” as narrated by the woman took place. It further said that “if at all it had taken place”and if “it was without consent”, Farooqui “could discern/understand the same”.
Some key points from Monday’s court order:
# The woman had deposed before the trial court that at the time of the alleged incident, she “remembered the case of Nirbhaya, whose offender had declared that if she had not protested, she would have lived”. According to her, this was why she kept “quiet and faked an orgasm in order to avoid any physical harm to her”.
In an apparent reference to this, the High Court said: “There is no communication regarding this fear in the mind of the prosecutrix (the woman) to the appellant (Farooqui). The prosecutrix makes a mental move of feigning orgasm so as to end the ordeal. What the appellant has been communicated is, even though wrongly and mistakenly, that the prosecutrix is okay with it and has participated in the act.”
# The court said that “at what point of time and for which particular move” Farooqui “did not have the consent of the prosecutrix is not known”. “What is the truth of the matter is known to only two persons, namely the appellant and the prosecutrix, who have advanced their own theories/versions,” the High Court said.
# The court said, “Normally, body language or a non-verbal communication or any previous activity or passivity and in some cases incapacitation because of alcohol consumption may not be taken as consent… However, in the present case, as has been stated, the appellant has not been communicated or at least it is not known whether he has been communicated that there was no consent of the prosecutrix.”
# The court said that “the unwillingness of the prosecutrix was only in her own mind and heart but she communicated something different to the appellant”. “It is not unknown that during sexual acts, one of the partners may be a little less willing or, it can be said unwilling, but when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner,” the court said.
# The court has said that “the past conduct will definitely” not amount to consent for what happened during the incident — and that “for every sexual act, every time consent is a must.” It added, “Different persons have different inclinations for sexual activity and immediately preceding the act, there are different ways of people responding to the advances, entreaties or requests.”