HomeMahmood Farooqui v. Govt. of NCT Delhi 243 (2017) DLT 310

 

Facts

The girl was a student from Columbia University and had met the accused for her research work on coming to India. When she requested the accused for tickets to his performance, he invited her over to his house for dinner. He then called her and told her he had to go for a wedding and she agreed to go assuming his wife would also be present. When she reached his place, there was one more friend and the accused was intoxicated. The other friend left the room and the appellant asked her to come and sit next to him. He then kissed her repeatedly and also attempted to pull down her underwear. She kept pulling it up and told him that what he was doing was not correct after which he forced oral sex upon her. The girl faked an orgasm as she was scared after learning about the Nirbhaya case that had happened in India.

Issue

Whether a ‘feeble no’ can be considered as consent?

Rule

Section 376 IPC, section 90 IPC.

Analysis

The Court points out that in certain cases, a ‘feeble no’ by a woman can mean ‘yes’ to sexual intercourse. The court says that for a ‘feeble no’ to be a ‘yes’ the parties must not be strangers and must know each other quite well, the parties have to be educated. The Court observed that even if the woman is assumed to be fearful and thus gave in to the act, this fear never came to the knowledge of the accused. Moreover, the court says that her act of faking an orgasm, though in fear, motivated the accused to think she was enjoying and was a  consenting party to the act. Thus, under section 90 IPC, this will not come under the category of consent under fear as the accused did not know that the prosecutrix was under fear. The Court also goes on to justify why a ‘no’ from a woman can be taken as a ‘yes’. The justification given by the Court is that socialization leads to females being submissive and men being dominant in sexual activity.

Conclusion

Since there was doubt regarding the incident and regarding consent if the incident did take place, the benefit was given to the appellant and was thus acquitted.

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