Divergent views over judgment in Farooqui case

Verdict creates new defence in law for rapist: Indira Jaising

September 26, 2017 10:41 pm | Updated November 28, 2021 07:36 am IST - NEW DELHI

Mahmood Farooqui. File photo

Mahmood Farooqui. File photo

The Delhi High Court’s judgment acquitting Peepli Live co-director Mahmood Farooqui has raised divergent views in the legal community on the grey line between sexual consent of a woman and rape.

The judgment by Justice Ashutosh Kumar holds that in the modern world where equality is the “buzzword” and where both men and women are “initiators” of sexual acts, consent should not be mere hesitation or reluctance, but a clear and unambiguous “No.” In short, there is no room for a feeble “No.” Justice Kumar gave the benefit of doubt to Mr. Farooqui on the ground that he had no intention to rape her and it was unclear that she had refused consent. The court notes that since both Mr. Farooqui and the woman are “persons of letters,” little or no resistance and a feeble refusal cannot be counted as actual refusal.


Former Additional Solicitor General, Indira Jaising, termed the judgment a “sophisticated but deeply flawed judgment on whether or not rape took place.”

“The judgment creates a new defence in law for the rapist which does not exist in law. There is a double presumption — absence of intention to rape [by the accused] and non-communication by the woman despite a clear ‘no’ from her. ,” Ms. Jaising said.

She said the judge “has invented a defence for the accused, which the latter did not make or have in law. The case of the accused [Farooqui] was bare denial [of rape]. But the judge introduces his own belief that the woman did, in fact, consent. The burden of claiming such a defence, based on actual proof and evidence, was on the accused. Therefore, the judgment converted what was decidedly a defence for the accused into the presumed consent of the victim.”

Senior advocate K.T.S. Tulsi also agreed with the judge’s conclusions. He said “sexual consent has to be categorical.


The facts related in the FIR and the HC judgment show that the two had gone halfway. In such a situation, the woman’s refusal should have been unambiguous. At that point, the burden shifts to the woman to make her refusal clear.”

Supreme Court Women Lawyers Association president and senior advocate Mahalakshmi Pavani said the judgment presuming consent was “outrageous.” “Why did the woman register an FIR, stand by her version through the trial if she had consented to the act? This judgment should be appealed against in the Supreme Court,” Ms. Pavani said.

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