SC lauds HC, upholds Farooqui's acquittal

NEW DELHI: Holding that it is "very hard" to decide cases relating to rape charges when a couple is in a relationship, the Supreme Court upheld the acquittal of 'Peepli Live' co-director Mahmood Farooqui in a rape case saying the complainant was intimate with him and that there was no evidence of coercion.

So convinced was the court about the lack of evidence that sex was not consensual that it took an unusual step of dismissing the US-based research scholar's plea against Farooqui's acquittal in the first hearing itself on Friday.

A bench said the Delhi HC verdict acquitting Farooqui was a "very well though-out judgment" and the case had been "extremely" well-decided by the HC.

It saw no reason to alter the verdict, dismissing the appeal filed against the order, the bench of Justices S A Bobde and L Nageswara Rao said.

The case, which had attracted wide attention, has again focused attention on how consent or lack of it is conveyed and interpreted.

The bench said Farooqui and the complainant were more than friends as evidence showed they were in an intimate relationship and the woman had accepted that they had in the past kissed and had drinks together. Though the bench clarified that having drinks together did not mean she consented, but showed the nature of the relationship and also referred to an email sent by the complainant to Farooqui in which she had expressed her love for him even after the incident.

The order gains significance in the light of the "me too" movement highlighting the "no means no" argument. The SC's decision to uphold the HC order setting out a grey area where a "feeble no" is not a "no", can impact how courts will view consent, not to talk of instances where the resistance is non-verbal.

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Advocates Vrinda Grover and Anindita Pujari, appearing for the complainant, contended that two prior incidents of sexual interaction could not be a ground to assume consent and that the two were acquaintances and not in a relationship. They contended that the plea of consensual sex was not raised in the trial court, which had convicted and awarded seven years to Farooqui, and the issue came up only in the HC.

The bench, however, was not satisfied with the plea and said, "Kissing does not happen between friends. This is the indication of their relationship. This is not a case where strangers met. They had been in a relationship."

"You are an experienced lawyer and must have handled many rape cases. How many cases of rape you have come across when a complainant says 'I love you' after the incident. We are referring to their communication and email to show that they were very good friends," the bench said, adding that it was wrong to say she was too afraid to oppose his advances as she responded in a very positive manner.

"This is a very hard case and we must say it has been decided extremely well by the high court," the court said.

Grover, however, insisted that the court must examine the issue as the HC verdict would have wider ramifications and be followed in similar cases but the bench said there was no need to interfere.

While acquitting Farooqui, the HC had said "no" might not always mean no and that there were examples of "woman's behavior (where)... a feeble 'no' may mean a 'yes' in cases of past intimacy". The 35-year-old woman had alleged that Farooqui had raped her at his Delhi home on March 28, 2015.

Quashing the trial court order, the HC found the claim of rape unreliable, noting the woman had faked an orgasm during the alleged crime, justifying it on the grounds that she feared violence similar to Nirbhaya's if she resisted. "In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean 'yes' in case of yes or no in case of no," the HC had held.

Challenging the verdict, the petitioner said, "The judgment has strayed into the realm of gender stereotyping by making generalised comment which negate an adult woman's express communication of consent or the lack of consent for a sexual act. This is not based on any legal reasoning and is a distressing example of judicial stereotyping impacting women as a class."

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