'No' May Not Always Mean 'No', Says HC, Acquits Peeli Live Co-director Mahmood Farooqui in Rape case

New Delhi: Underscoring that a "no" may not always mean a "no" in acts of passion, the Delhi High Court on Monday acquitted Peepli Live co-director Mahmood Farooqui in a 2015-rape case, setting aside his seven-year jail term.

Justice Ashutosh Kumar not just disbelieved the version of the rape victim -- a US researcher -- but also spent many pages of his 82-page verdict to explain how the woman failed to communicate her denial of consent and why Farooqui might not have been conveyed her denial if there was any.

Instances of woman behavior are not unknown that a feeble "no" may mean a "yes", noted the judge.

Justice Kumar, in a way putting the onus on the victim, held that the consent does not merely mean hesitation or reluctance or a "no" to any sexual advances, but has to be an affirmative one in clear terms.

"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," said the judge.

According to Justice Kumar, in Farooqui's case, he has not been communicated or at least it is not known whether he has been communicated that there was no consent of the complainant.

"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," read the HC judgment.

It cited some unknown "recent studies" to further state that normal rule is that the consent has to be given, and it cannot be assumed. But these studies reveal that, in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent.

"At what point of time and for which particular move, the appellant did not have the consent of the prosecutrix is not known. What is the truth of the matter is known to only two persons namely the appellant and the prosecutrix who have advanced their own theories/versions," said Justice Kumar.

Ultimately, the judge concluded that it was doubtful whether the sexual assault took place and if at all it had taken place, it was without the consent of the woman and if it was without her consent, whether he could understand the same, given he is said to be suffering from bipolar disorder.