top of page

Consent (IPC)

Updated: May 12


Consent (IPC)
Consent (IPC)

Content:-



ACT DONE BY CONSENT  [SECS. 87-91]


Sections 87-91 outline the legal framework surrounding consent in criminal law, which is crucial in determining innocence or guilt, especially in offences involving bodily harm or property.



Consent is defined as the voluntary agreement to an action, devoid of fear, force, or misconception. Section 90 specifies instances where consent is deemed invalid. Consent given under fear, misconception of fact, or by individuals incapable of understanding the nature of their consent, such as those of unsound mind, intoxicated, or under 12 years of age, is not recognized as valid consent under the law.



It's essential to distinguish between consent and mere submission. While every consent involves submission, not every submission constitutes consent. Valid consent must be given by individuals capable of understanding and agreeing to the action.



In legal precedents like the "Snake Charmer Case" and "Dasrath Paswan v State of Bihar," it was established that consent obtained under misconception of fact or fear is not valid. In cases of sexual intercourse, consent obtained through fraudulent promises or deceitful intentions also constitutes invalid consent.



Recent judgments like Dhruva Ram Murlidhar Sonar v State of Maharashtra and Anurag Soni v State of Chhattisgarh have emphasised that consent induced by false promises of marriage amounts to deception.


However, the misconception must be proximate to the occurrence and not stretched over a prolonged period.



In Maheshwar Tigga v State of Jharkhand, the court acquitted a man accused of rape as the prosecutrix's consent was deemed a conscious choice, not an involuntary action, emphasizing the importance of genuine consent in sexual offenses.

 
 

Sections 87-89 and 91 of the law specify circumstances where certain acts, done with the consent of the victim, do not constitute offences. 


  • Section 87 states that if an act, not intended or known to cause death or grievous hurt, results in harm to a consenting adult, it is not considered an offence. This provision applies to activities like games, sports, and exercises, guided by the principle of "volenti non fit injuria" (he who consents cannot complain). However, consent must be full, free, and specific to the level of force or pain involved. Implied consent can be inferred from the circumstances, such as in wrestling, boxing, or fencing, provided that the rules are followed. Exceptions exist where the law disregards consent, such as when the victim is a child, the act occurs in a public place, or the harm inflicted is severe. For instance, injuries sustained in prizefights are considered injurious to the public and are not excused by consent. Conversely, activities like tattooing are lawful when done with the consent of an adult.


  • Sec. 88 states that an act done in good faith for the benefit of the victim with their consent is not an offence. However, intentional causing of death cannot be justified by consent. Still, if a person consents to another performing an act for their benefit, even if it may lead to death, it is not considered an offence. This section safeguards surgeons conducting surgical procedures and teachers administering reasonable discipline, such as corporal punishment, to maintain order. Yet, individuals without medical qualifications, like quacks, are not protected. For instance, if a surgeon performs plastic surgery to correct a nasal defect and the patient dies during the procedure, the surgeon won't be held liable unless gross negligence is proven.


  • Sec. 89 stipulates that any act performed in good faith for the benefit of a child under 12 years of age or a person of unsound mind, with the consent of their guardian or lawful caretaker, is not considered an offence, regardless of any harm it may cause or be intended to cause. However, there are provisos to Sec. 89: First, this exception does not apply to intentionally causing death or attempting to cause death. Second, it does not apply to actions known to likely cause death for any purpose other than preventing death or curing grievous disease. Third, it does not extend to voluntarily causing grievous harm unless done to prevent death or cure grievous disease. Fourth, it does not extend to abating any offence not covered by this exception.



The provisions of Sec. 89 do not apply in four specific situations outlined in the provisos:



  • Intentional causing of death or attempt to cause death: For instance, if a father intentionally kills his daughter to prevent her from falling into the hands of dacoits, he cannot claim immunity under Sec. 89 as the act is intentional and unlawful.


  • Consent to actions likely to cause death for purposes other than preventing death or grievous harm.


  • Causing or attempting to cause grievous harm, except when done to prevent death, grievous harm, or infirmity. For example, causing grievous harm to a child under Sec. 322 of IPC.


  • Abetment to the commission of any offence. For instance, if a father encourages someone to rape his 15-year-old child for monetary gain, neither the father nor the perpetrator can avail themselves of the exception provided in Sec. 89.




Illustrative Case Laws


  • In Bishamber v Roomed (AIR 1951 All 500), a self-appointed 'Panchayat' convened to address an alleged molestation case involving a Harijan girl. The 'Panchayat' decided to publicly shame the accused by blackening his face, parading him through the village, and subjecting him to a shoe beating. Despite the unconventional justice, the court ruled it was not an offence as the accused acted with the complainant's consent, given in writing and out of fear of potential retaliation. In another case, the accused, who held financial power over his maid, raped her. The court recognized that the victim's apparent consent was influenced by fear of losing her job, indicating consent does not always equate to willing participation.


  • Contrastingly, in R. v Brown, Laskey, Jaggard, Brown, Carter [1993] UKHL 19, a group engaging in sado-masochistic acts for sexual gratification were convicted despite consent. The court emphasised that consent does not justify actions causing substantial harm or against public interest. This decision was debated, with critics arguing against condoning repeated harm inflicted for fleeting pleasure. Ultimately, while consenting adults may engage in private acts without serious harm, repeated infliction of harm for momentary satisfaction is deemed unacceptable.


  • Similarly, in R. v Bradshaw (1878) 14 Cox CC 83, during a football game, an accidental tackle led to the victim's death. The court acquitted the defendant, highlighting that actions within the rules of the game, without malicious intent or knowledge of potential harm, may not be considered criminal.


  • In G.B. Ghatge v Emperor (AIR 1949 Bom 226), a teacher who gave 5-6 strokes with a cane to a boy of 15 years was charged with misconduct. While the court held that the punishment was excessive, it was also held that no offence is committed since a teacher is a delegate of the parent to protect the interests of the student. It may be noted that the law is now reversed.

 
 



 



0 views0 comments

Recent Posts

See All

Comments


bottom of page