This article is written by Puneet Chhabra, here he discusses on free consent. 

What is free consent?

Free Consent, in simple term, means giving consent to a person for the performance of an act at one’s own will. But in the context of the Indian law both the term free consent and consent have their own importance and wide meaning. In this article, I would throw light on the legal meaning of free consent and what is the basic difference between Consent and Free Consent.

Difference between the “Consent” and “Free Consent”.

Consent Consent implies a meeting of minds. if there is no consent then there is no meeting of minds. In case of no consent, the contract is void. In the case where there is no consent of the party, the party does not acquire the right over the property and even such property is passed on to another party then the other party does not have a right over it.

Free Consent In case there is consent, but it is not free consent it is always under some influence. In case of no Free Consent, the contract is voidable at the option of the party affected. In case there is no free consent the party has a better title over the property unless the contract is terminated by the party affected by the contract.

According to Indian statues, what constitutes a “Free Consent”?

Indian Contract Act, 1872 (ICA)

Indian Contract Act,1872 mainly deals with the provisions related to contracting and is a parent law from which many other civil laws over time has evolved like Family Law, Transfer of Property Act etc. the main provisions of which Indian Contract Law deals is different kinds of contract, conditions of a valid contract and all other provisions related to the Contract. Indian contract also defines free consent and what constitutes free consent and what are the factors which affect the contract.

Section 13 of ICA defines consent as “when two parties entered into the contract there should agree upon the same thing in the same manner” there should be a meeting of minds between the two parties. If there is no consensus ad idem, meeting of minds, on the material terms of the contract, then such contact will be void.

Section 14 in furtherance of Section 13, defines free consent as consent which is not a result of any of the following

• • Coercion(Section15)

• Undue Influence (Section 16)

• Fraud (Section 17)

• Misrepresentation (Section 18)

• Mistake (Section 20,21 and 22)

If the free Consent of either of the party is obtained from any of the following mentioned above then the contract entered between the two is voidable at the option of the aggrieved party.

Coercion (Section 15)

Section 15 of the Indian Contract Act,1972 defines Coercion as any act which includes threat, unlawful detention or causing a threat of detaining property of the other party with the view of obtaining his consent and the act which is prohibited by Indian Penal Code.

For example, A threatens B on a gunpoint to sell his house at Rs 50,000. The consent is not free and is obtained on the gunpoint.

The essential element of Coercion

Undue Influence (Section 16)

 Section 16 of the ICA,1872 states that the consent obtained from the undue influence when the party is at the position to dominate the will of other party and make an undue advantage over the other party.

For Example, A has given a loan of Rs 1,00,000  to B and states that B should pay the double amount to B or otherwise sell his house to A for free. A used undue influence to take advantage of his money given as a loan.

The essential element of Undue Influence

Section 17 defines fraud as when the party entered into the contract, the other party try to the conceal the actual fact or provides such information which is not true, or made such promises without any intention of fulfiling it and an act which according to the law is prohibited and another alternative to cheat the party.

For example, A sold his refrigerator to B representing him that the Refrigerator is new and working condition. Later on, B found to be old and not in proper condition. Such a statement made by A to B amounts to Fraud.

Misrepresentation

Section18 defines that when the party entered into the contract and other party commits any with the intent to deceive breaches the duty or caused the mistake without having intention it amounts to misrepresentation.

For example, A believed his horse to be sound. A sells his horse to B believing to be sound and B bought his horse . and later B found the horse to be unsound. The Statement made by A amounts to misrepresentation.

Mistake

There are two types of mistakes mentioned in Section 20 of the Indian Contract Act,1872.

1. Mistake of Fact includes

• Unilateral Mistake
• Bilateral Mistake – In Case of Bilateral Mistake the agreement entered is void.

2. Mistake of Law includes

• Mistake of Indian Law – In case of Mistake of Indian Law the agreement entered is void.
• Mistake of Foreign Law

In the Indian Penal Code,  the term free consent is not mentioned anywhere but there is Section 90 of the Code which states that what doesn’t amount to free consent.

Section 90 says,” A consent is not such as is intended by any section of this Code, if the consent is given by a person under fear of injury or a misconception of fact, and if the person performing the act knows or has reason to believe that the consent was given as a result of such fear or misconception;

Consent of insane person.— the person who is incapable of understanding the nature and result of the act which he gives his consent;

Consent of child.—unless the contrary appears from

Consent of child.—unless the contrary appears from the context “if the consent is given by a person who is under twelve years of age.”

This means, that every such consent which is either obtained:

1. Under any threat, or fear of injury or the act which causes is done under the threat of fear.
2. by an insane person, or
3. by a child under 12 years of age, shall not constitute as consent under the Code.
4. Fear of injury or misconception of fact

Whether free consent is there in case of marital rape

Section 375 of the Indian Penal Code talks about the conditions of rape and also Clauses of the said section talks about the  conditions of consent which state as

375(4) with her consent if she has given her consent by unsoundness of mind or any intoxication or when is unable to understand the nature of the act.

With or without her consent, when she does not attain the age of majority

When is unable to give her consent.

Section 375 of IPC, nowhere mentions the provisions related to rape with the wife. However, it has been always been assumed that the husband does not need the consent of his wife during sexual intercourse. Indian law is silent on the consent of the wife whether the wife has given consent for sexual intercourse or not.

But Supreme Court in  The Chairman, Railway Board v. Chandriman Das, AIR 2000 SC 988, The act of committing rape is a gross violation of basic human dignity and the harm to the woman dignity.

The recent Judgement of Right to Privacy also talks about personal liberty and right to privacy. The same is applicable to all types of rape including marital rape where the wife has the right to denial of sexual intercourse with the husband.

Article 21  of The Constitution of India speaks about personal right and liberty.  However, unfortunately, when it comes to marital rape, this very right is snatched away as it is assumed that with the consent to marry the wife has also given a lifelong consent for sex with the husband irrespective of the physical, emotional, psychological circumstances. This perspective, however, needs to be changed so that the wife can deny sexual intercourse with the husband. Right to life under Article 21 also includes “Right to deny”, but with the current societal pattern and dominant patriarchy society prevailing in the society this fundamental right often been ignored and also the consent of wife has not been taken into account. therefore, “free consent” in cases of marital rape is undefined and vague in the Indian context and therefore one cannot say that there is consent of wife is there during sexual intercourse or not.

Case Laws

• Raffles v Wichelhaus

Parties came into contact for the delivery of cotton. The terms were such that the cotton would be delivered to the defendant on the port of Liverpool by the ship named “Peerless “departing from Bombay. There were two ships named Peerless, one departing in October and one in December. Claimant delivered the cotton on the December ship, but the defendant did not pay as they contended that they thought that cotton would be delivered on the October ship.

Claimant successfully delivered the cotton on the December ship, but the defendant did not pay as they contended that cotton would be delivered on the October ship. Claimant ’s suit for breach of contract was dismissed by the court by stating that there was no consensus ad idem on the material term of the contract, therefore there is no binding contract. However, not every contract where parties do not agree in the same manner and the same subject shall be non- binding.

• Mannu Singh v Umadat Pande, The spiritual advisor prompted the plaintiff to transfer his entire property to him with the promise of securing benefits in the next life. Such a contract was deemed to be affected by undue influence.

• RC Thakkar v Gujarat Hsg Board, the Court held that the cost estimates given by the authorities in the tender notices were held to be fraud because authorities, in reality, did not calculate the estimated cost of work, and such material representation knowing to be false, is a fraudulent act.

• Deelip Singh @ Dilip Kumar vs the State Of Bihar, The Court pointed out that section 90 has two parts. The first part says that the person must have consented under fear of injury or misconception of fact, and the second part says that the wrongdoer was aware that the consent was given under such circumstances. Only then, if both elements are established/proven, such consent shall not amount to free consent. The same was pointed out in Deepak Gulati v State of Haryana.

Conclusion

The Indian statues are vague about the definition of free consent at some cases .whereas in civil law it provides the clear definition of what amounts to free consent the ambiguity in criminal laws regarding free consent could only be removed by interpretation ofthe judicial decisions by the apex court.