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'No' has to be emphatic, says court, acquits filmmaker of rape

But in Mahmood Farooqui's case, it was unclear whether he was told "that there was no consent of the prosecutrix", who was also his friend

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Peepli Live co-director Mahmood Farooqui
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A feeble 'no' to sexual advances may mean a 'yes', said the Delhi High Court while acquitting Peepli Live co-director Mahmood Farooqui in a rape case brought against him by a US researcher.

Giving the benefit of doubt to Farooqui, who had appealed against the seven-year jail term awarded to him by a trial court for sexually assaulting the 30-year-old on March 28, 2015 at his south Delhi home, Justice Ashutosh Kumar said, "It remains in doubt as to whether such an incident, as has been narrated by the prosecutrix, took place and if at all it had taken place, it was without the consent/will of the prosecutrix, whether the appellant could discern/understand the same."

The court also said that in today's time, a 'no' has to be emphatic, not ambiguous, and has to be "expressed outwardly through mutually understandable words or actions". But in Farooqui's case, it was unclear whether he was told "that there was no consent of the prosecutrix", who was also his friend.

"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. Instances of woman behaviour are not unknown that a feeble 'no' may mean a 'yes'... But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble 'no' was actually a denial of consent," the 82-page judgment says.

Elaborating on the "differences between how men and women initiate and reciprocate sexual consent", it says: "The normal construct is that man is the initiator of sexual interaction. He performs the active part whereas a woman is, by and large, non-verbal.. However, in today's modern world with equality being the buzzword, such may not be the situation."

Stating that it did not want to indulge in "speculative imagination", the court also considered the evidence of Farooqui's bipolar disorder while setting aside the trial court's conviction and directing immediate release of Farooqui, who was lodged in Tihar Jail since August 4, 2016.

The victim's lawyer, Vrinda Grover, said they would appeal against the decision, and declined further comment.

Talking to DNA, Farooqui's wife, Anusha Rizvi, said: "I am very relieved, happy and vindicated. I feel it has been a victory for truth. I am really grateful to the judiciary, lawyers, and my family. The fight has been tough, but we had no choice."

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