Bengaluru, Karnataka, India
Sep 27, 2017, 11.21 AM
Injustice! That is exactly how I would describe the judgement of the Hon’ble High Court of Delhi in the case of Mahmood Farooqui vs. State. Nothing but injustice has been done to the prosecutrix.
In a criminal trial, the courts are duty bound to ascertain the true facts in order to determine the guilt of the accused. It must be said that the lower court has done a commendable job by appreciating the evidence on record and ultimately finding Mr. Mahmood Farooqui guilty of forcefully performing oral sex on the prosecutrix. One only wishes the same could be said about the Hon’ble High Court of Delhi.
The prosecutrix is a student of the Columbia University and a Fulbright Fellow affiliated with the Department of History, Delhi University. The prosecutrix moved to Delhi in June 2014 to further her research and complete her PhD in Hindi Literature and Nath Sampraday.
It is in this context, a mutual friend, Danish Hussain introduced the prosecutrix to Mr. Mahmood Farooqui. During her time in Delhi, the prosecutrix gradually became friendly with Mr. Mahmood Farooqui and they hung out a bunch of times. They even occasionally kissed each other and, allegedly, had an intimate relationship.
On one occasion Mr. Mahmood Farooqui requested the prosecutrix to stay over and sleep on the couch but she refused with an intention of not taking their “intimate” relationship any further. Thus, it is clear that the prosecutrix, though she was occasionally intimate with Mr. Mahmood Farooqui, had drawn clear boundaries.
On 28.03.2015, the prosecutrix called and requested Mr. Mahmood Farooqui if he could spare two tickets for his show, to which Mr. Mahmood Farooqui obliged and invited the prosecutrix for a dinner party later in the evening. Upon arriving at Mr. Mahmood Farooqui’s residence at around 9 p.m. the prosecutrix was ushered in by Mr. Ashish Singh. There she found Mr. Mahmood Farooqui was not only heavily intoxicated but was also sobbing uncontrollably. After Mr. Ashish was asked to leave, there was a point in time where the two were alone and Mr. Mahmood Farooqui kissed the prosecutrix to which she said: “I don’t think that this is what you need”.
Rather than holding himself back, Mr. Mahmood Farooqui persistently tried to kiss the prosecutrix. Reportedly, all along, he was saying what a great woman she is and asked her if he could ‘suck her’ to which again the prosecutrix said ‘no’. Still not having the decency to stop, Mr. Mahmood Farooqui began to tug her underwear down as she tried to pull it up. Then Mr. Mahmood Farooqui pins her down and forcefully performed oral sex on her.
Fearing to get hurt, the prosecutrix pretended to have an orgasm, thinking the ordeal would end. She was saved when the doorbell rang. Mr. Mahmood Farooqui only stopped when his childhood friend Mr. Ashish returned. Although the prosecutrix wanted to go, she was made to stay until Mr. Mahmood Farooqui’s wife Anusha returned.
On 30.03.2015, the prosecutrix sent an email to Mr. Mahmood Farooqui, stating how he had crossed a line to which he wrote back saying “my deepest apologies”. Again on 12.04.2015, the prosecutrix writes him another email, pouring her heart out. This time, Farooqi's wife responded, saying how responsible she felt for it to have happened under her roof, and she hasn’t confronted him about it as he is in rehab for his bipolar disorder.
Consent is a crucial element in determining whether or not a sexual encounter is punishable under the law. How else can a woman express her unwillingness to indulge in any form of sexual contact by saying no? When a woman says “no you cannot touch my genitals”, it means one cannot touch her genitals. Period.
With the utmost of respect, at this point, it would be apt if someone could lend Justice Ashutosh Kumar a copy of the movie ‘Pink’ to better understand what the word "no" means. The Hon’ble Court has erred in assuming the act was consensual and that the prosecutrix went along with it because of the past intimate exchanges between the individuals as well as the fact that the prosecutrix was attracted to Mr. Mahmood Farooqui.
However, the Hon’ble Court failed to appreciate that every separate sexual encounter is independent of the other and needs voluntary consent each such time. It appears that the Hon’ble Court has stretched its imagination to think that Mr. Mahmood Farooqui suffers from bipolar disorder. However, this fact of Farooqui's illness was never proved; it was only used to carve out the so-called benefit of a doubt.
Moreover, although the Hon’ble Court believed the prosecutrix to be a sterling witness, it refused to believe the testimony of the prosecutrix and acquit Mr. Mahmood Farooqui by giving him “the benefit of doubt”. Until currently, I was under the impression that hard days are only for the beef lovers post the beef ban. But today as a citizen and an advocate, I am scared for the safety of the women of our country.