Recently, in an order delivered through single bench, the Delhi High Court in Mahmood Farooqui v. State acquitted the defendant of the charges of rape alleged by a US research scholar, reversing the order of the trial court. The judgment has been subjected to much criticism by the intelligentsia and feminist groups from all over the country, terming it as ‘dangerous’ and ‘outrageous’. Judiciary has also been criticized and accused of misogyny and gender biases.
Now, in the opinion of the author, the judgment is a well crafted and well thought one, which has been rendered after taking all the circumstances into consideration. This article tries to bring out the intricacies of ‘consent’ how it is to be read in context in the present case. During the course of this article, the author will analyze of the judgment and its various aspects and will also try to justify it.
Brief Facts-
The Prosecutrix, a US research scholar was in search of some contact for getting information regarding ‘nath samrpaday’. She met the defendant through a common friend in connection of the same in June 2014. This was ensued by close friendship between them for some time. On the day of the occurrence of the event, the Prosecutrix was called upon by the defendant to attend a wedding with the defendant. When Prosecutrix reached his home, she found him in ‘drunk and lachrymose state’. Prosecutrix asked the reason for the sadness and the reason was told. Prosecutrix hugged the defendant and kisses followed after that defendant expressed his will to ‘suck her’ which was initially denied but later oral sex took place which was allegedly forced on her.
Relevant provisions-
Explanation (2) to section 375, IPC
Consent means an unequivocal voluntary agreement when a woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Section 90, IPC
Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
Moot Questions-
The court while reversing the sentence passed by the Trial Court gave a very well reasoned judgment of 82 pages and took a very natural and pragmatic view of ‘Consent’. The major questions posed before the court were-
Does initial reluctance/ a feeble ‘no’ amounts to ‘denial of consent’?
In the present case, the Prosecutrix after exchanging few kisses refused to have oral sex, but the defendant insisted and tried to convince her like any reasonable man would and later the Prosecutrix went along. It is submitted that sexual acts are initiated by one party and the other party at times initially turns down the offer, but if later because of some manipulation or repeated requests the same person (who initially refused) participates in the act without objecting to the acts of the other party, then the act cannot be said to be without consent as ‘no’ was already stated. The communication between sexual is largely ‘non- verbal’ and in the light of the later conduct of the party, the feeble no or initial reluctance cannot be taken as a denial of consent.
Is ‘consent’ to be read in context of circumstances (e.g. ‘Past Intimacy’ in the present case)
In case there has been past intimacy between the victim and the defendant, then does the law warrants that every time ‘willingness to participate’ is to be communicated? The court banking on the scientific studies brought out the concept of ‘assumed consent’ and held that in light of previous intimacy the consent can be presumed unless is expressly repudiated. The author hails the reasoning of the court because it is based on human psychology as it would be unreasonable to expect that two sexual partners take each other’s consent before every sexual encounter. Attention is also demanded to Explanation 2 to section 375 that ‘no physical resistance does not mean there is consent’ but if there is even no oral or any other gesture showing resistance then, it is submitted consent can be presumed on account of past intimacy.
Whether a person can be punished for rape without mens rea i.e. ‘to him sex was consensual’?
For any crime, there are two aspects, first the actus reus or physical aspect and second, the mens rea of the mental aspect. Now if there is a prior relationship between two individuals and the defendant as far as he can perceive feels the act as ‘consensual’ due to the inability of counterpart to object to his actions, then the person cannot be punished for rape because apparently, there was implied consent by act of both parties. Now, in the relevant case, the Prosecutrix stated that the carried act as she was afraid and in a documentary of the infamous nirbhaya rape case she heard the rapist stating that the’ girl would have survived had she not resisted the rape’ and hence she went ahead with the act. In the present case, no sign/ hint was given to defendant that the act was happening against the will of the women and it appeared to him that she had agreed after initial reluctance as the women even had an orgasm (fake orgasm to end the ordeal). It is further stated that a presumption that refusal to have sex in every case would result in an assault or violence is unreasonable. Also, proseutrix knew the defendant previously, so, there were negligible chances that such even could even happen.
Section 90 of the Indian Penal Code lays down that a consent is no consent which has been given under fear and the person doing the act knows or has reason to believe that consent was given under fear. In the relevant case, no such impression was there on the part of the defendant and hence to him the oral sex was consensual where the women even had an orgasm!
Whether intellectual proficiency of a person can determine the presence or lack of consent?
The court in its judgment dwelled into another behavioral aspect stating that the victim/ Prosecutrix and stated that if the Prosecutrix would have been from a weaker background and would have been intellectually improficient, then the plea could have been accepted that she was not in a position to resist but looking at the intellectual proficiency of the Prosecutrix the court cannot accept the plea.
The court in its judgment dwelled into another behavioral aspect stating that the victim/ Prosecutrix and stated that if the Prosecutrix would have been from a weaker background and would have been intellectually improficient, then the plea could have been accepted that she was not in a position to resist but looking at the intellectual proficiency of the Prosecutrix the court cannot accept the plea.
Conclusion and Suggestion
In the light of the above-stated arguments and the reasoning, the judgment of Delhi High Court appears to be of paramount quality. The court needs to be appreciated for not taking a biased view and standing there as the guardian of the innocent. The judgment is being criticized for taking a neutral view standing against the strong waves of feminism and interpreting the law in the right context. This is what courts have been doing since their inception and will continue to do. The author hopes that the judgment is reaffirmed by the Supreme Court of India if there is an appeal.
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