Law and You > Criminal Laws > Indian Penal Code > Defence of Consent (Ss. 87 to 92 IPC)

Consent means a person agrees to the act of another person after knowing the consequences of the act. Concept of consent is based on the legal maxim volenti non fit injuria which means harm caused with the consent cannot be considered as an injury and it does not amount to an offence. Consent given by a person may either be express or implied. Implied Consent can be inferred from one’s conduct /actions or nature of the operation. Consent plays a very important role in determining the criminal liability of a person. In the context of the Indian Penal Code (IPC), consent is a crucial concept, particularly concerning various criminal offenses. Consent refers to the voluntary agreement of an individual to engage in a particular act or to permit something to occur. However, the IPC outlines certain provisions where consent may not be considered as a defence or may be vitiated (rendered invalid).

Consent plays a very crucial role in establishing the liability in all criminal cases. Whether to lessen the seriousness of an offence depends on consent. This defence is that if a knowledgeable adult voluntarily agrees to a crime against himself and knows that they have agreed, the harm resulting from the Act in this way as a result of the consent is a criminal liability to the perpetrator

The word consent is however not separately defined under Indian Penal Code; there are some specific sections which talk about consent as an exception under IPC. Section 87 of IPC saves the person from the criminal liability on the ground of consent as a general exception. Ss. 88, 89, and 92 gives immunity to those persons (doctors, philanthropist etc.) whose act(s) caused harm to other person but that act was actually done for the benefit of that person that means the harm caused to the person is unintentional. Section 90 lays down four situations under which the consent given by a person is not considered as a valid consent. Section 91 states the exclusion of those acts which are offences independently of harm caused. Section 375 also talks about some other important and relevant aspects of consent like what forms a valid consent, when sexual intercourse amounts to rape and under what circumstances an act constitutes an offence despite of the fact that the other party has given his consent for the same.

Types of Consent:

Consent can take various forms depending on the context in which it is given. The different types of consent are as follows:

• Express Consent: This type of consent is explicitly stated either verbally or in writing. It involves a clear and direct agreement to participate in a particular activity or to allow something to happen.
• Implied Consent: Implied consent is inferred from a person’s actions or conduct rather than being explicitly stated. It is understood based on the circumstances and the reasonable expectations of the parties involved. For example, a patient extending their arm to allow a doctor to take their blood pressure implies consent.
• Informed Consent: Informed consent is given when an individual has been provided with all relevant information about a particular situation or activity, including its risks, benefits, alternatives, and consequences. Informed consent is often required in medical procedures, research studies, and certain legal agreements.
• Consent by Coercion: This type of consent occurs when someone agrees to something under duress or coercion, such as threats, intimidation, or manipulation. Consent obtained through coercion is not considered genuine or valid in many jurisdictions.
• Consent by Deception (Fraud): Consent obtained through deception or fraud is not considered genuine because the person providing consent is unaware of the true nature of the situation. For example, if someone misrepresents their identity or intentions to obtain consent for a particular action, it may be deemed invalid.
• Consent by Incapacitation: Consent given by a person who is not capable of making rational decisions due to intoxication, mental incapacity, or other factors may not be legally valid. Individuals must have the capacity to understand the nature and consequences of their actions in order to provide valid consent.
• Revocable Consent: Consent that can be withdrawn or revoked at any time is known as revocable consent. Even if consent was initially given, the individual has the right to change their mind and withdraw consent at any point during the activity or interaction.

Understanding the different types of consent is important in various legal, medical, and interpersonal contexts to ensure that individuals’ rights and autonomy are respected and protected.

Conditions Needed to Plead the Defence of Consent:

Section 87, 88, 89 and 90 of the Code deals with conditions that are necessary to plead consent as a defence. These conditions are enumerated as follows:

1. A person who has consented to the risk
2. The person must be at least 12 years old. In such a case, the consent of the legal guardian or its responsible person must be obtained.
3. Consent can be given without fear or misunderstanding of the facts.
4. This consent must be given explicitly or implicitly.
5. Consent is not intended to cause death or serious injury.

When consent is not a defence:

Section 90 IPC:

Section 90 IPC, defines what does not constitute a valid consent. Similarly, Section 14 of Indian contract act lays down some grounds that forms the basis of a free consent. A consent is not considered as a valid consent if;

1. Such consent is given by the person under fear of some injury.  If consent is obtained from an individual due to fear of injury and the person performing the act knows or has reason to believe that the consent was given because of such fear, the consent is not valid.
2. The consent is given under the misconception of some facts and the person obtaining the consent is aware of the same or has a reason to believe the same. If consent is obtained from an individual under a misconception of fact, and the person performing the act knows or has reason to believe that the consent was given because of such misconception, the consent is not valid.
3. The consent is given by a person who is not of sound mind. Consent given by a person who, due to unsoundness of mind and is unable to understand the nature and consequence of the act to which they are consenting is not considered valid.
4. The consent is given by a child who is below the age of 12 years. Consent given by a person who is under twelve years of age is not considered valid unless the context indicates otherwise.
5. The consent is given by an intoxicated person. Consent given by a person who, due to intoxication, is unable to understand the nature and consequence of the act to which they are consenting is not considered valid.

Section 90 of the IPC aims to protect individuals from exploitation, coercion, or situations where they are unable to give genuine consent due to fear, misconception, mental incapacity, or age. It is crucial in various legal contexts, including criminal law, where consent plays a significant role in determining the legality of certain actions. Thus, Section 90 of the IPC is crucial in understanding the circumstances under which consent may be deemed invalid. It helps safeguard individuals who may be vulnerable or unable to provide genuine consent due to various factors.

Consent Given for Any Harm Other than Death or Grievous Hurt:

Section 87 IPC:

Section 87 refers to the consented acts which did not intent to cause death or grievous hurt to any person. It states that nothing is an offence just by the reason of harm which might be caused, if it is not intended and is not known by the person to cause or likely to cause death or grievous hurt to any person who has attained the age of majority and who has consented to suffer the harm or by the reason of any harm which might be known by doer to likely cause to such a person who has given his consent to take the risk of that harm; irrespective of the fact whether the consent was express or implied.

Illustration:

A and Z agrees to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence. Thus, where both the parties are playing a fair game and one of them is injured in that case it constitutes no offence.

Ingredients of Section 87 IPC:

• The act done must be without any intention and knowledge to cause death or grievous hurt;
• The act must be done to a person who has attained the age of majority i.e. who is above 18 years of age;
• The person must have given his consent;
• It may be express or implied; and
• The consent given should be for the purpose of suffering that harm

The defence of consent is based on two submissions:

• Every person is the best judge for itself.
• No man will give consent for what he thinks will be hurtful to him.

Section 87 of the IPC is often invoked in cases where individuals engage in activities that carry inherent risks, such as sports or adventure activities, and where participants willingly consent to those risks. It aims to balance the principles of personal autonomy and individual responsibility while providing protection from criminal liability in situations where harm occurs with consent and without malicious intent.

In Tunda v. Rex, AIR 1950 Allah 95 case, where two of the friends participated in wrestling match and one of them suffered injuries and died. Later a suit was instituted against the other person under section 304 A of IPC. In this case high court upheld that both the parties agreed for wrestling match and themselves consented to suffer injuries. since both the parties played a fair game and there was no foul play, so it was held that the case falls under section 87 of IPC and thus the other party was freed from the criminal liability.

In Dasrath Paswan v. State Of Bihar, AIR 1958 PAT 190 case, where 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.

Act Done in Good Faith for the Benefit of Another Person with Their Consent: 

Section 88 IPC:

Section 88 deals with those acts which are done in good faith for the benefit of a person for which the person consents to take the risk of the harm that might be caused are not offences. It states that nothing is an offence just by the reason of harm which might be caused, if it is not intended and is not known by the doer to cause or likely to cause death of any person for whose benefit that act was done, in good faith and who has consented to suffer the harm irrespective of the fact whether the consent was express or implied.

Illustration:

A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death and intending in good faith, Z’s benefit performs that operation on Z, with Z’s consent. A has committed no offence.

Ingredients of Section 88 IPC:

1. The act done must be without any intention to cause death of a person;
2. Act must be done in good faith;
3.  Act must be done for benefit of the person;
4.  The person must have consented to suffer the harm which might be caused as a result of that act

Section 88 of the IPC is often invoked in medical contexts, where certain medical procedures or treatments may carry risks of harm but are performed for the benefit of the patient with their consent. It provides legal protection to healthcare professionals and others who act in good faith to benefit others, even if harm results from their actions.

Under section 88 of the Indian Penal Code, the wrong-doer is protected even for an act causing grievous hurt but not death. In cases where a person gives consent with his will to take the risk of an operation, and the operation becomes fatal, the doctor who has done the operation cannot be punished even if it causes that person’s death.

In Samira Kohli v. Dr Prabha Manchanda, (2008) 2SCC 1 case, the Supreme Court stated that consent in the context of a doctor-patient relationship is defined as grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient.

This order gives the principles of consent with regard to medical treatment and therapeutic investigations and not for medical research/clinical trials as follows:

1. A doctor has to seek and secure the consent of the patient before commencing a treatment. The consent so obtained should be real and valid; the consent should be voluntary; and the consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that she/he knows what she/he is consenting to.
2. A balance should be maintained between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
3. Consent given only for a diagnostic procedure cannot be considered as consent for treatment. Consent given for a specific treatment procedure is not valid for some other treatment or procedure.
4. There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.
5. The nature and extent of information to be furnished by the doctor to the patient.

In Sukaroo Kobiraj v. The Empress, (1887) ILR 14 CAL 566 case, the appellant, 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. Further the court also said that it was a negligent act done on part of the doctor and thus he is not entitled to seek protection under section 88 of IPC.

In Dr R.P. Dhanda v. Bhrelal, 1987 Cri LJ 1316 MP case, criminal proceedings were instituted against the doctor who performed a surgery for cataract which resulted in the loss of his eyesight. The doctor took the defence under section 88 of IPC. High Court while delivering the judgment upheld that since the doctor took the patient’s consent and did the surgery in good faith with proper care and caution as per the Indian Medical system thus, he is not liable for the harm caused to the patient.

Act Done with the Consent of a Guardian for the Benefit of a Child or a Person of Unsound Mind:

Section 89 IPC:

Section 89 deals with those acts which are done for the benefit of a child or insane person in good faith either by the guardian himself or by some other person with his consent. It states that nothing amounts to an offence just by the reason of any harm which might be caused or intended and known by the doer to be caused or likely to cause to that person, if the act is done with the consent (either express or implied) of his guardian or any other person having the lawful charge, in good faith for the benefit of that person who is below the age of twelve years or for the person who is of unsound mind.

Following four provisos have been attached to the Section 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.

Illustration:

A, in good faith, for his child’s benefit without his child’s consent, has his child cut for the stone by a surgeon, knowing it to be likely that the operation will cause the child’s death, but not intending to cause the child’s death. A is within the exception in as much as his object was the cure of the child.

Ingredients of Section 89 IPC:

1. Act done must be for the benefit of a person who is of unsound mind or a child under 12 years of age.
2. Such an act must be done in good faith.
3. Act must be either done by the guardian or by the guardian’s consent or such other person who has lawful charge of that person.
4. The consent may be either express or implied.

Section 89 of the Indian Penal Code (IPC) deals with acts done in good faith for the benefit of a person without that person’s consent in certain emergency situations.

In K. A. Abdul Vahid v. State Of Kerala, (2005) Cr. L.J. 2054 Ker case the question that was raised before the Kerala High Court was the case where a schoolteacher hits the student with a cane who disobeyed the rules will the teacher be prosecuted for the same under Indian Penal Code. The court in this case said that the scenario of a schoolteacher hitting a child for disobeying the rules falls under section 89 of IPC. Thus, the teacher will be given protection under section 86 of Indian Penal Code. The court justified the same by saying when a child is admitted to the school the guardian gives an implied consent to the school authorities for any such act. Further the court stated that the teacher was acting in good faith and hence the teacher will not be prosecuted under IPC.

Section 89 of the IPC is particularly relevant in emergency situations where immediate action is required to protect the life or well-being of a child or a person who is unable to give consent due to unsoundness of mind. It aims to balance the necessity of prompt intervention with the protection of vulnerable individuals.

Act Done in Good Faith for Benefit of a Person without Consent:

Section 92 IPC:

Section 92 reflects the legal principle that certain actions undertaken for the public good or the benefit of others, especially in emergency situations or where obtaining consent is impossible, should be protected from criminal liability as long as they are performed in good faith and with the intent to benefit the person involved.

Section 92 lays down that any act which is done without the consent then the performance of that particular act is in good faith or for the well-being of the person and that the person for whom such act is been done is either unable to understand or incapable to give consent or the guardian cannot take the consent of such person in question. Section 92 is subjected to the following four provisions-

1. First provision states that if any person intentionally causes or attempts to cause death of a person that person will not be given protection under this section.
2. As per the second provision if any person does any act of which he has the knowledge that it will likely cause death for any other purpose other than curing some grievous disease or infirmity or the prevention of death or grievous hurt then in that case this section will not protect that person.
3. The third provision says that if any person voluntarily causes or attempts to cause grievous hurt to any other person then that person will not be given protection under this section, unless the purpose of that person was to cure some grievous disease or infirmity or to prevent death or hurt.
4. The fourth provision says this section shall not be applicable to the abetment of any offence, to the committing of which offence this section will not extend.

Section 92 provides legal protection to individuals who, in good faith and for the benefit of another person, perform acts that may cause harm, even without the explicit consent of the person benefited.

Example: A, is found unconscious due to a severe allergic reaction. Dr. B, a passer-by who is a highly qualified doctor, notices that A is in anaphylactic shock and requires immediate administration of epinephrine. He has an epinephrine injector with him. Knowing that any delay in treatment could be fatal and that A is unable to consent as he is unconscious, Dr. B administers the epinephrine shot in good faith for A’s benefit. In this case, even though Dr. B acted without A’s consent, he has not committed an offence under Section 92 IPC, since his actions were done in good faith for A’s benefit, during a situation where it was impossible for him to consent and there was no time to seek consent from a guardian or lawful charge.

In Queen v. Poonai Fattemah, 12 W.R. Crim. Rul. 7, case, where the accused, professing to be a snake charmer, persuaded the deceased to allow himself to be bitten by a poisonous snake under the impression of a belief that he possessed the powers to protect him from the bite which he could not subsequently. It was held that the deceased’s consent did not excuse the accused from criminal liability.

Act Done in Good Faith for Benefit of a Person without Consent:

Section 91 IPC:

Section 91 of the Indian Penal Code (IPC) addresses the situation where certain acts which would otherwise be considered offenses are not punishable under specific circumstances. Section 91 talks about the cases where despite of the fact that the person consented for an act, it amounts to an offence not because of the reason that harm is caused but because of the reason that the act is illegal. This section also makes it clear that the exceptions given under section 87, 88 and 89 of Indian Penal Code is not applicable to acts which are considered as offences independently of any harm which might be caused or intended to be caused or is likely known to be caused to the person consenting for the same or on whose behalf the consent is given. The acts done against public safety, public moral or any act of public nuisance falls within the ambit of section 91 and are the examples of offences irrespective of the harm being caused.

Example: A professional boxer consents to a boxing match, understanding the risk of bodily harm. If during the match, the opponent boxer lands a legal punch that inadvertently causes serious injury, the opponent may not be held criminally responsible due to the exceptions in sections 87, 88, and 89 concerning consent in sports. However, if the same opponent boxer, outside of the sporting context, intentionally hits the consenting boxer with the intention to cause grievous hurt, this act would be an offence under the IPC, as the consent given for the sports match does not extend to justify an assault with the intention to cause serious injury outside of the match. Section 91 clarifies that consent is not a defence in this case because the act is an offence independently of any harm consented to within the sporting event.

In Bishambher v. Roomal AIR 1951 All 500 case, where the complainant had molested a girl. Two hundred people assembled to punish him. Three localities intervened to find an alternate way. The crowd gathered in front of the Panchayat, when the plaintiffs agreed to obey the Panchayat’s decision. Panchayat blackened his face, tonsured his head and gave him a shoe-beating with the consent of the plaintif (Bishambhar) made in writing by affixation of his signatures. Following this the complainant made a complaint against the accused who were charged under sections 323 and 506 of the Penal Code read with section 114. Allowing the pleas of defence to the accused under sections 81 and 87, the court observed, “It is true that if an act is unlawful in the sense of being in itself a criminal act, it cannot be rendered lawful because the person to whose detriment it is done consents to it; but there are many acts the commission of which in the circumstances mentioned in the section (87) may not amount to an offence.”

Rape

Section 375 IPC:

Section 375 of Indian Penal Code gives the definition of rape. This section lays down certain grounds under which sexual intercourse between a man and a woman amounts to rape.

Penetration is sufficient constitute sexual intercourse amounting to the offence of rape. A man is said to commit rape if he has sexual intercourse with a women under any of the circumstances mentioned below.

1. Against the will of the women
2. Without the consent of the women
3. If her consent is not a free consent, if it is influenced by fear of hurting her or causing her death or of any other person in whom she is interested in.
4. When she gives her consent under the impression that he is another man to whom she is or believes herself to be married lawfully, but the man is aware of that he is not her husband.
5. When she gives her consent, but she was not in a sound state of mind or was intoxicated while she was consenting for the same as a result of which she was not able to understand the nature and consequences of the act of the same.
6. With or without the consent of the women below the age of sixteen years of age.

Exception- There is an exception to this, if a man has sexual intercourse with a woman under any of the grounds mentioned above; provided that woman is his wife and is not below the age of fifteen years in that case it does not amounts to the offence of rape.

In Uday v. State of Karnataka (Crl.) No.393 of 2020 case the accused expressed his love for the women (prosecutrix) and promised to marry her on some future date. The women was aware of the fact that both of them belonged to different castes and their families would oppose their marriage. Despite of this, the women started cohabiting with the accused consciously and became pregnant. Later the accused delayed the marriage, and the women lodged an FIR against him for the offence of rape. The court in this case held that the victim had sufficient knowledge and intelligence to understand the moral quality of the act which she consented to and that is the reason she kept it a secret for long. Thus, taking into consideration all the facts the court further said that she freely, voluntarily and consciously gave her consent for having sexual intercourse with the accused and moreover her consent was not a result of any misconception. Thus, the court stated that it cannot be said that the women consented for the act under misconception of facts and thus the accused was not held liable for the offence of rape.

Consent to a sexual intercourse, as in this case, cannot be based on a misunderstanding of facts. The false promise of marriage is not a fact in the criminal sense.

In Rao Harnarain Singh Sheoji Singh v. State, AIR 1958 P H 123 case, where the accused who was an advocate and a public prosecutor, forced his tenant to fulfil carnal lust of Rao Harnarian and his friends by giving his wife. Thereafter the entire night the men ravished her which immediately led to the death of his wife. The accused then stated that it was a consented act and the victim and his husband gave their consent for the same and hence they should not be held liable. The court stated that women gave her consent to the accused for the sake of her husband’s safety as they threatened him and hence it was not a free consent. The court further held all the parties liable for committing the offence of rape.

In Jayanti Rani Panda vs State Of West Bengal, 1984 CRI LJ 1535 case, where the accused frequently visited the house of the complainant. In the course of time, they developed feelings for each other and he 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. 

Conclusion:

In the context of the Indian Penal Code (IPC), consent is a critical legal concept that applies to various criminal offenses. Consent refers to the voluntary agreement of an individual to engage in a particular act or to permit something to occur. However, the IPC recognizes that there are situations where consent may not be a valid defence or may be vitiated (rendered invalid) under certain circumstances. Consent is vital in medical procedures and treatments. Performing medical procedures without consent can lead to legal repercussions under the IPC. In contractual matters, consent plays a significant role. Contracts made under duress or coercion may not be considered legally binding. In various activities and interactions, consent is crucial. Whether it’s participation in sports, entertainment, or other events, voluntary consent is often required. The criminal liability of a person basically depends on the facts and circumstances of a case and the liability varies from case to case. Although consent is a valid ground of to seek protection against the criminal charges which are being imposed on a person but it does not mean absolute submission to any harmful act.

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