When is a no a "NO" | Take on Mahmood Farooqui Acquittal

A No Is A No Only When Communicated

Ever since Mahmood Farooqui was set free by the Delhi High Court, feminists and media have gone into overdrive. May I say that scandalous reporting, “A No does not always mean No, says Delhi HC”, and sorts have added fuel to the fire?

It took me some time to read the judgment and see the import of the judgment and what he meant: a “no may not always mean no, and it has to be deduced from the attended circumstances”. Then, I read a few of the reports on this judgment and realized that a Hindu and a Muslim couldn’t discuss “COW” as a bovine animal; it would always be an unequal fight where the party who screams louder would be heard.

One needs to understand the judgment in its entirety and in light of the facts examined to make an opinion.

The factual matrix of the case is as follows:

The prosecutix was known to Mahmood Farooqui, and they both were involved in a lot of physical contact, including kissing, groping and so on, on many occasions. The lustful relationship was of such level when, one day, the wife of Mahmood Farooqui went out of the room; they kissed each other. They routinely exchanged SMSes, and on the fateful day at the house of Mahmood Farooqui, they consumed liquor and exchanged kisses. Then Mahmood Farooqui asked for sexual favours from the prosecutrix, who kept quiet, and Mahmood Farooqui performed cunnilingus with her, and she faked an orgasm. In all this, from the exchange of kisses to Farooqui performing cunnilingus, the prosecutrix once said a feeble “NO” to Mahmood Farooqui. Then, she kept quiet because the Nirbhaya incident was fresh in her mind. And then she felt bad for herself and wrote an affectionately remonstrative email to Mahmood Farooqui that they went a little too far the other day. Then after a few months, after due counselling and consultations, she decided to file an FIR because she thought she was raped on that fateful day.

Delhi HC, after detailed scrutiny of facts and in a detailed 82-page judgment, stated many contradictions in the story of the prosecutrix and then came to a conclusion that “In the present case, the unwillingness of the prosecutrix was only in her mind and heart, but she communicated something different to the appellant. If that were not so, the prosecutrix would not have told the appellant that he had gone too far that night. At what point in time, during the act, did she not give consent for the same? Thus, it remains unknown, and it can safely be said that the appellant had no idea at all that the prosecutrix was unwilling. 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 assumed consent, it matters not if one of the partners in the act is a bit hesitant. Such feeble hesitation can never be understood as a positive negation of any advances by the other partner.”

If the judgment had left the finding till this level, I think the media and feminists would have a different reason to blast the judgment. It is only because the judgment went a step further and added the below paragraph where it differentiates feeble no between two strangers and two known people who had a history of sexual innuendos amongst them that all hell broke loose.

“Instances of woman behaviour are not unknown, and a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied…But the 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 tough to decipher whether little or no resistance and a feeble ‘no’ was a denial of consent.”

I fail to understand why one line is taken out of context and such a hue and cry is made out of it. Consent is often rightly presumed based on actions. Non-verbal communication is more strong than verbal communication. If I invite a person to a cup of coffee, and he comes, and I order two cups of coffee, and we have coffee, that person, later, under no circumstances, accuses me of making him drink coffee against his wishes. The person had more than one chance of saying no, and when he did not communicate his negation to me and kept his negation in his heart and mind, how the hell am I going to decipher that he did not want to have coffee?

In a bid to make sexual offences laws more friendly towards women, we have added many caveats to the same, which are stringent against the accused, if not confusing. Let’s study the explanation in the definition of rape:

Explanation 2:- Consent means an unequivocal voluntary agreement when a woman, by words, gestures or any form of verbal or non-verbal communication, communicates a 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.

Now, how does Mahmood Farooqui understand whether the party is consenting or not? If a lady exchanges kisses, hugs and other sexual advances and goes to the extent that she kisses him when his wife briefly goes out of the room. Then, on the fateful day’s exchanges, kiss freely and do not resist the further act; how should Mahmood Farooqui have gotten into her heart and mind to know that her consent from now onwards is vitiated with fear of “Nirbhaya” running through her mind?

My dear feminists, a “no” is a “no” only when communicated in such circumstances and not if not communicated. We should not allow anyone to change his/ her confused YES to a NO on a later date after deliberation in a criminal trial, which affects the right of another person’s freedom and life.

And lest I take your absurd argument to its equally scandalous interpretation, one would have to agree that even during sex, when a woman moans ever so softly, “Oh No, Oh No”, a man should stop the act in between, lest it be considered a rape.

Ah! Even when I write, I can hear a few feminists say, “Yes, a man should stop then and there and check whether she was moaning or saying NO and ask for her consent again before proceeding with the act.”