Can Consent in Sex Be Ambiguous? Delhi HC’s Comment Sparks Debate

At a time when every woman in our country is battling to emphasise on the importance of consent, the Delhi High Court just took a step back by making retrograde comments while passing a judgment in the rape case against 'Peepli Live' co-director, Mahmood Farooqui.

The Delhi High Court, on 25 September, acquitted Farooqui of charges of raping a 35-year-old US scholar. While raising doubts on the credibility of the rape charges, the court also made certain comments that cater to a regressive mindset.

Section 375 of the Indian Penal Code says 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.

Also Read: Anatomy of a Rape Trial: A Timeline of Mahmood Farooqui Rape Case

While we debate what it means when a girl says 'NO', the excerpt from the judgment reads as follows:

Instances of woman behaviour are not unknown, that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied. If the parties are in some kind of prohibited relationship, then also it would be difficult to lay down a general principle that an emphatic ‘no’ would only communicate the intention of the other party. If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. 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. [sic]

The Quint reached out to a few lawyers in the country to understand the validity of this excerpt by the Delhi HC.

Here is how they reacted:

Reinforces Stereotypes Against Women: Rebecca John

Senior Advocate Rebecca John thinks the excerpt is an alarm for everyone to start taking a hard look at the language of the court.

This is a very disturbing comment from the High Court. It just reinforces every stereotype that the women of the country face today. These kind of extremist comments are baseless. I am not commenting on the decision of acquitting Mahmood Farooqui but this kind of irrelevant details do not even go into the roots of the case. The judgment only provokes us to take note of the regressive language of the court.‘When a Woman Says ‘No’, She Means ‘No’: Swaty S Malik

The Delhi High Court lawyer said a woman irrespective of her background or circumstances has every right to say a ‘no’ and that should be respected, lest it be deemed as rape.

This is an extremely insensitive and archaic thought that seems to have clouded the otherwise rational mind of our judiciary. Comments such as these from the brightest minds in our country put our society back by a few decades. Whether to someone known or unknown, literate or illiterate, when a woman says no, she means no. The judge seems to have implied a blanket ban on marital rape. I, as a lawyer, hope and pray that our judiciary will come out of this dark cloud and help create a more positive, progressive, compassionate, sensitive and safe environment. This seems to be the need of the hour where judiciary needs to be sensitized towards this not just physical but emotional and psychological crime inflicted on women.Such an Observation in a Situation of Violence Denies the Very Violence: Veena Gowda

For advocate Veena Gowda, this observation by the court is regressive and reflects a certain Bollywood representation of women’s consent.

Advocate Veena GowdaThe observation that “instances of woman behaviour are not unknown that a feeble no may mean a yes” is an extremely regressive approach to women’s agency and infantalises us as if we do not know our own mind. It reflects a kind of Bollywood representation of women’s consent where the heroine is shown to say no to the hero as she is shy. Rape is an act of violence and such an observation in a situation of violence denies the very violence.No Record of Verbal or Non-Verbal ‘Yes’: Karuna Nundy

Senior advocate Karuna Nundy firmly believes that there should have been a finding of rape in this case.

Senior Advocate Karuna Nundy“The judgment says the prosecutrix was a ‘sterling witness’ and her evidence was corroborated by other witnesses. It still somehow goes on to say that there is doubt whether the incident occurred at all. The judgment problematically says ‘a feeble ‘no’ may mean a yes’. But between the ‘no’, the forcible disrobing of the prosecutrix and the forced oral sex there is no record of any verbal or non-verbal ‘yes’ – that altered her non-consent in the man’s mind. Therefore, in my view, there should certainly have been a finding of rape.”Benefit of Doubt Must Be Given to the Accused: Saif Mahmood

Taking a slightly lighter stand, Senior Advocate Saif Mahmood said a person cannot be convicted till the prosecution's case is proved beyond reasonable doubt so the appellant should be given the benefit of doubt in terms of Section 90 of IPC which says: “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.” [sic]

This has been said to explain Section 90 of the IPC. It is true that the test for deciphering consent cannot be the same for a person who has been known to the accused. What Section 90 provides is that the accused must know that the consent which was given was under a fear of injury or misconception of fact. In this case, the accused couldn’t have known. At the very least there is a fair amount of doubt that he knew or could have known. Going by elementary canons of criminal jurisprudence, the benefit of doubt must be given to the accused. 

While on one hand the judiciary of our country is resisting Triple Talaq, on the other hand such ambiguous comments on an issue as important as ‘consent to sex’ is limiting progress.

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