This article is written by Sushant Agrawal, currently pursuing B.A.LLB (Hons) from Department of Law, Aligarh Muslim University. This is an exhaustive article which deals with Consent as a defence under Indian Penal Code, 1860.

Introduction

Under criminal law, the term consent is an active expression of ‘intention’. The crime has two essential ingredients (1) actus rea and (2) mens rea. Actus means an act done by the wrongdoer, whereas mens rea means the intention of doing that particular act. A person will be criminally liable for all the acts that he had done with the intention or knowledge of doing it and possibly know the consequences of his acts.

We will discuss how a doer is protected from criminal liability when he causes or takes the risk of injury with or without the consent of the person harmed.

Meaning of consent

In common parlance, consent is an act done deliberately and by free will. It involves a deliberate exercise of intelligence based on knowledge of the significance and moral effect of the act. It consists of three things- a physical power, mental power and free use of them.

However, the word ‘consent’ is nowhere defined in IPC. But Section 90 of IPC talks about what does not amount to consent. It describes consent in a negative term. It states, a consent given by a person under the fear of injury, or under a misconception of facts, or by reason of unsoundness of mind, intoxication, or a child under the age of 12 years (unless the contrary appears from the context), who is incapable to understand the nature and consequences of the consented act, is no consent.

Consent as a defence

Section 90 of the IPC, though does not define ‘consent’, yet lays down what is not consent. It regulates the operations of Sections 87, 88 and 89 of the I.P.C. There are four cases where a consent given by a person is no consent.

First: Person giving consent under the fear of injury– Under criminal law, consent obtained by threat and violence would not be a defence. For example, Z threatened A with a knife to sign his property paper in favour of X, Z’s son. Here the consent was given under fear of injury.

Second: Person giving consent under the misconception of facts– if consent is obtained under a misconception of facts, then it will have no value in the eyes of law. For example, a woman had a consent sexual intercourse with a doctor on the belief that he was making a medical examination of her. The doctor would be held guilty as he made her believe that he was doing a medical examination of her.

Third: Consent given by insane people– People who are of unsound mind, or in an intoxicated state of mind, incapable to understand the nature and consequences of their acts. For example, A, in a heavily drunken state, signed his property paper in favour of the liquor shop owner just to get one more liquor bottle. In the eyes of the law, his consent has no value.

Fourth: Consent given by child- The last para of section 90 says consent given by a child under the age of 12 years has no value in the eyes of law. In this case, the consent will be given by the child’s guardians or person in charge of him.    

Conditions needed to plead consent as a defence

Section 87, 88, 89 and 90 of the Code deals with various conditions which are needed to plead consent as a defence. These are mentioned below:

1. Person has consented for the risk.
2. The person must be above the age of 12 years unless the contrary appears from the context and must not be of unsound mind, if yes then the consent must be given by guardians or the person in charge of them on their behalf.
3. Consent be given under no fear or misconception of facts.
4. The said consent must be made expressly or impliedly.
5. The consent was not intended to cause death or grievous hurt.

Express and Implied Consent

Both express and implied consent are recognized under the Section. As long as there is consent and it was freely given, the number of words or specific articulation of the said consent is not necessary.

The term ‘express consent’ as far as criminal law is concerned is used to give permission for something either verbally or in writing. When your friend asked you to rent your flat for a day and you said ‘Yes’. Then, it is your express consent given verbally to him.

X, had an operation of his backbone. But before the operation, the doctor told him to sign a paper in which it was expressly mentioned that operation might cause his death. X signed the paper as he had an unbearable pain. X died. The doctor will not be liable.

The term ‘implied consent’ in criminal law is used to obtain either (1) consent by acts and conducts, or (2) consent presumed. When a person enters a Big Bazaar store and picks up goods that were exhibited for sale, then it can be presumed that there is an implied consent to enter into the shop, to handle goods and to purchase them also. This is an example of consent by acts and conducts.

X, on being friendly terms with Z, goes into his wardrobe in his absence and takes away his shirt without Z’s express consent for the purpose of attending a party tonight, and the intention of returning it. X has not committed the offence of theft as he had an impression of Z‘s implied consent though Z has never given or in any way signified the same. It was presumed consent.      

Scope of Section 89 of IPC

Section 89 of IPC deals with children below 12 years of age and persons of unsound mind and hence, they do not have the legal capacity to give consent as they are incapable of understanding the nature and consequence of their act. Hence, the consent on their behalf is given by guardians or persons legally in charge of them.

The doer must act in good faith and for the benefit of the person harmed.

When the benefit under Section 89 cannot be claimed

The following four provisos have been laid down by the legislature to make sure some additional safeguards other than the fact that the doer should act in ‘good faith’:

1. Act shall not extend to intentional causing of death, an attempt to cause death. For instance, A in good faith intentionally kills his son, who is suffering from incurable heart disease just to give him a peaceful death. A would not be protected under this section.  
2. This provision will not apply in the situations wherein the person was aware or had a knowledge of his act which is likely to cause death unless it was done for the prevention of death or grievous hurt, or the curing of any grievous disease or infirmity. For instance, A in good faith, for his daughter’s benefit without her consent, has consented for transplantation, knowing it to be likely to cause death in the process, but not intended to cause her death. A will be given the defence of section 89, since his objective was to cure her daughter.
3. This provision will not apply in the situations wherein the person voluntarily causes grievous hurt or attempted to cause grievous hurt unless it was done for prevention of death or grievous hurt, or the curing of any grievous disease or infirmity. For instance, A in good faith, for his child’s pecuniary benefit, emasculates him. Here A would not be protected under this provision as A has caused grievous hurt to his child for a purpose, other than preventing death or grievous hurt.
4. This provision will not extend to the abetment of any offence, which is not covered under this provision. For instance, A, in good faith, abets B, his friend, to sleep with his daughter Y, who is under 12 years of age for pecuniary benefits. Neither A nor B would be given protection under this section. 

Landmark Judgments

Dasrath Paswan v. State (1957)

In this case, the accused has failed at an examination for three consecutive years. By disappointing these continuous failures he decided to end his life. He discussed his decision with his wife who was a literate woman of 19 years of age. His wife said to kill her first and then kill himself. Accordingly, the accused killed his wife first and was arrested before he could kill himself. It was held that the wife had not given her consent under the fear of injury or misconception of fact. Hence, the accused would not be liable for murder.

Baboolun Hijrah v. Emp. (1866)

In this case, a man submitted himself to emasculation. It was performed neither by a skilful hand nor in the least dangerous way and resulted in the death from the injury. Before the Court the accused pleaded that he did know that the practice of emasculation was forbidden by law and also he acted under the free consent of the deceased. The court held the accused not guilty.

Sukaroo Kaviraj v. The Empress (1887)

In this case, Mr. Kaviraj, a qualified doctor performed an operation of internal piles by cutting the vital part with an ordinary knife. The patient died because of copious bleeding. He was prosecuted for causing death by rash and negligent act. The Court held him liable as he did not act in good faith.

Jayanti Rani Panda v. State (1983)

In this case, the accused was a teacher and frequently visited the house of the complainant. In the course of time, they developed feelings for each other and promised to marry her soon. Upon this assurance, sexual relationships have developed between them. The complainant became pregnant and pressured to perform marriage soon. When the complainant did not agree to undergo abortion, the accused disowned his promise and stopped visiting her house.

A case of rape was filed against the accused. The Court held accused not liable as section 90 will not be applicable because the complainant has given her free consent to series of sexual relations and also the prosecution is unable to establish beyond a reasonable doubt that the accused begin sexual contacts without the intention to marry her. 

Bishambher v. Roomal (1950)

In this case, the complainant molested a girl. Immediately, around 200 people gathered to punish him. Three local people intervened and tried to bring out a middle way. All the people gathered before the Panchayat and the plaintiff agreed to follow the decision of the Panchayat.

The Panchayat ordered the plaintiff to take a round of the village with his blackened face. All the intervening people were arrested and prosecuted for Section 323 and 502 of the IPC. The Court held that the accused were entitled to the benefit of Section 87 of the IPC because they acted in good faith without any criminal intention to prevent serious consequences arising out from the previous act of the complainant.

Udaya v. State of Karnataka (2003)

In this case, the prosecutrix gave her consent to the appellant for having sexual intercourse. It was alleged that the accused Udaya expressed love and promised to marry the prosecutrix on the later date. She started cohabiting with the accused consciously and became pregnant. The accused was charged and tried for committing rape as the prosecutrix pleaded that she consented under the misconception of fact that the accused Udaya shall marry with her. 

Rejecting this contention it was held that the accused Udaya was not liable for the offence of committing rape because the prosecutrix was aware of the fact that they belonged to different castes and proposal of their marriage will be opposed by the family members and yet she started cohabiting with accused consciously and become pregnant. Consent to have sexual intercourse, in this case, cannot be said to be given under a misconception of fact i.e., promise to marry because she also desired for it. False promise to marry is not a fact within the meaning of the Penal Code

Rao Harnarain Singh Sheoji Singh v. State (1957)

In this case, the accused who was an advocate and Additional Public Prosecutor forced his tenant to give his wife for satisfying the carnal lust of Rao Harnarain and his friends. They all ravished her all night that resulted in her death almost immediately. 

Upon being prosecuted, the accused pleaded that the deceased husband had consented for this and also the woman came with her own, therefore they should not be held liable. The Court made clear the distinction between consent and submission. 

The Court said all consent involves submission but not all submission is consent. Here, in this case the deceased made her submission before the accused because her husband was threatened with severe consequences. The Court held all of them liable for committing and rape and murder.

Poonai Fattemah v. Emp. (1869)

In this case, the accused, a snake charmer persuaded the deceased to allow himself to be bitten by a poisonous snake, making him to believe that he had the power to protect him from the harm. Here, the consent given by the deceased was under the misconception of the fact that the accused had a skill to cure snake bites. Therefore, the Court held that the accused was not entitled to protect on the ground of consent of the deceased and held liable.

Conclusion

From the above discussion, we understand why a doer is protected from criminal liability when he causes or takes the risk of injury with or without the consent of the sufferer as he acted in good faith and for the benefit of the person harmed. 

But in case of serious bodily injuries, criminal law does not recognise consent as a defence. For example, a player consented for a certain degree of injuries in a football match but if s/he received more than that in the normal conduct of the game, then it is unlawful.