Consent as defense

In the field of criminal law, there exist a variety of situations, that will tend to negate elements of
a crime, such situations are known as Defense. In particular intent is the element which is negated
by Defenses. Criminal intent can be express as, the purpose or design of doing an act forbidden by
the criminal law without just cause or excuse. Indian Penal Code, 1860 (hereafter IPC) describe
sundry of excuses which are not forbidden by IPC, and one such excuse is Consent.
Consent could be understood by Latin maxim volenti non-fit injuria. It acts as a complete defense
in the civil cases (except in cases of absolute liability). But the use of this maxim in criminal cases
are very limited. There are numerous offenses, which consider consent as an absolute defense, as
in the case of Rape. Then there are cases where consent although do not play any role in proving
the innocence of accused but, it does diminish the culpability as, in the case of murder exception
5. And finally, are those cases where consent has no role to play, as in the case of statutory rapes.
In criminal law offense against body and property are only consider when they are done against
the will of person or owner of the property. If a person gives his consent to physical contact or
appropriation of his property then such actions, are not considered as an offense under IPC1. The
parameter to gauge the consent is, based upon the method through which it has been achieved,
consent achieved through fraud or through inducing fear is not the consent in the eye of the law.
Defense of consent is not always applicable to the offense. As per Glanville William, the option
of consent enters into a discussion of offenses both on the negative and on the positive side
1. Negatively. -- Things may not be done to a person without his consent, merely on
the ground that they are done for his benefit. This protects us from busybodies who
think they know what is good for us better than we do ourselves. The exceptions
to the principle (in relation to sane adults) are narrow.
2. Positively. -- Anything may be done to a person, if he consents to it, whether it is
for his benefit or not. Just as we can decide what we do not want to be done to us,
so we can decide what we do. Again the principle is not without exceptions.2
Consent, in IPC, can be categories into two groups based on the drafting of these sections in the
code.
1. Consent mentioned under chapter VI as a general defense (Section 87 - 91).
2. Consent mentioned in specific Sections.
Before digging deep into the specificity of defenses, it is important to note that, the burden of proof
is always on the accused using that defense. When a person is accused of any offense, the burden
of proving the existence of circumstances bringing the case within any of the general exceptions
in the Penal Code, or within any special exception or proviso contained in any other part of the
same Code, or in any law defining the offense, is upon him, and the Court shall presume the
absence of such circumstances.3
1. General Consent
1 Nadan Patak v State of Assam (1990) 1 Crime 340 (Gau)
2 Ratanla and Dhirajlal, The Indian Penal Code, 398 (Lexis Nexis, India, 34th edition, 2018)
3 Kampasari v. Puttappa AIR 1944 Mad 168.

Chapter IV of IPC which deals with general defense and section 87 to section 91 deals with
consent specifically. These defenses are general in nature which are applicable to almost
all other section of the code.
Section 87 talks about act not intended and not known to be likely to cause death or
grievous hurt, done by consent.
Nothing which is not intended to cause death, or grievous hurt, and
which is not known by the doer to be likely to cause death or grievous
hurt, is an offence by reason of any harm which it may cause, or be
intended by the doer to cause, to any person, above eighteen years of
age, who has given consent, whether express or implied, to suffer that
harm; or by reason of any harm which it may be known by the doer to
be likely to cause to any such person who has consented to take the risk
of that harm.
In R v. Laskey4 court held that a group of people participating in consensual acts of
violence against each other for sexual gratification cannot seek a defense of consent. It is
not in public interest that a person should wound or cause actual bodily harm to another for
no good reason and without such a reason the victim's consent afforded no defense.
Section 88. Act not intended to cause death, done by consent in good faith for person's
benefit.
Nothing, which is not intended to cause death, is an offence by reason of
any harm which it may cause, or be intended by the doer to cause, or be
known by the doer to be likely to cause, to any person for whose benefit
it is done in good faith, and who has given a consent, whether express or
implied, to suffer that harm, or to take the risk of that harm.
In Gopinath Pillai T.M. v State of Kerala5 petitioner was accused of negligence where he
was given consent to perform an appendectomy, he removed the ovary of the victim.
Petitioner claimed that the victim had developed the cyst in the right ovary which came to
know in later stages. Kerala High court said, “Section 88, IPC provides that harm done
for the benefit of the person injured and with his consent will not make the person causing
harm liable for a criminal offense.” Court took reference of illustration mentioned in IPC.
In Deepa and Others v. S.I. of Police, and Another6 court limited the use of Consent as the
defense, the court said that the provisions of Section 87 and Section 88 are not applicable
if the interest of society is involved.
Section 89. An act did in good faith for benefit of the child or insane person.
by or by consent of a guardian.
4 R v. Laskey, (1993) 2 WLR 556(HL)
5 Gopinath Pillai T.M. v State of Kerala 2000(2) ALT(Cri) 326
6 Deepa and Others v. S.I. of Police, and Another 1985 CrLJ 1120(Ker)

Nothing which is done in good faith for the benefit of a person under
twelve years of age, or of unsound mind, by or by consent, either express
or implied, of the guardian or other person having lawful charge of that
person, is an offence by reason of any harm which it may cause, or be
intended by the doer to cause or be known by the doer to be likely to
cause to that person:
Provided-
First. --That this exception shall not extend to the intentional causing of
death, or to the attempting to cause death;
Secondly. --That this exception shall not extend to the doing of anything
which the person doing it knows to be likely to cause death, for any
purpose other than the preventing of death or grievous hurt, or the curing
of any grievous disease or infirmity;
Thirdly. --That this exception shall not extend to the voluntary causing of
grievous hurt, or to the attempting to cause grievous hurt, unless it be for
the purpose of preventing death or grievous hurt, or the curing of any
grievous disease or infirmity;
Fourthly. --That this exception shall not extend to the abetment of any
offence, to the committing of which offence it would not extend.
In M. Natesan v. State of Madras7 court came up with the idea of “implied consent”. It is
a case where a teacher beat student for forging thumb impression of his mother. Court
held that teachers are entrusted to disciple student and for ensuring this they are granted
the authority. But that exercise is within the exception or not would depend upon the
severity of punishment
Section 90 Defines consent. It states situations where consent would not be considered as
consent those situations are
1. When given under Fear of injury.
2. When given Under Misconception.
3. Where a person committing an act knows that that consent is given under fear of
misconception
4. Consent provided by unsound mind person, or under influence of an intoxicant or
unable to give consent.
By the language of the act, it is not clear what constitutes consent it only specifies what
would not be considered as consent. It could be defined
7 M. Natesan v. State of Madras AIR 1962 Madras 216.

“as an act of reason, accompanied with deliberation, the mind weighing as
in a balance, the good and evil on each side.”
“it means an active will in the mind of a person to permit the doing of the act
complained of, and knowledge of what is to be done, or of the nature of the
act that is being done, is essential to consent to an act”
“an act of helplessness on the face of inevitable compulsions is not consented
in law”8.
“act of reason accompanied with deliberation, the mind weighing, as in a
balance, thegood or evil on either side. It is furtherstated that consent supposes
three things-- a physical power, a mental power, and a free and serious use of
them and if consent be obtained by intimidation, force, meditated imposition,
circumvention, surprise, or undue influence, it is to be treated as a delusion,
and not as a deliberate and free act of the mind” 9
Court has expended the definition of consent in relation to rape law. It will be discussed
under the specific section.
Section 91 Exclusion of acts which are offenses independently of harm caused.
The exceptions in sections 87, 88 and 89 do not extend to acts which are
offences independently of any harm which they may cause, or be intended
to cause, or be known to be likely to cause, to the person giving the consent,
or on whose behalf the consent is given.
2. Consent mentioned in specific Sections.
There are a various sections in IPC which have specifically defined Consent as a defense.
Although it is specified as one of the defense in certain cases, it does not do away the
culpability of accused rather reduce it. One such section is section 300 that is Murder.
Section 300 defines Murder, it contains 5 exceptions which reduce the act to culpable
homicide punished under section 304. Exception 5 is one such exception which deals
with consent.
Exception 5: Culpable Homicide is not murder when the person whose
death is caused, being above the age of eighteen years, suffers death or
takes the risk of death with his own consent.
The exception does not take away culpability but reduce its severity. Lord Macaulay in
justifying for not punishing homicide by consent so severely as murder:
"In the first place, the motives which prompt men to the commission of this
offense are generally far more respectable thanthose which prompt men to the
commission of murder. Sometimes it is the effect of a strong sense of religious
8 Satpal Singh v State of Haryana 2010 Air 4951 (SCW)
9 State of UP v. Chhoteylal, AIR 2011 SC 697

duty, sometimes of a strong sense of honor, not infrequently of humanity. The
soldier who, at the entreaty of a wounded comrade, puts that comrade out of
pain, the friend who supplies laudanum to a person suffering the torment of a
lingering disease, the freedman who in ancient times held out the sword that
his master might fall on it, the highborn native of India who stabs the females
of his family at their own entreaty in order to save them from thelicentiousness
of a band of marauders, would, except in Christian societies, scarcely be
thought culpable, and even in Christian societies would not be regarded by the
public, and ought not to be treated by the law, as assassins.”10
Jurisprudence had developed over the year through judicial pronouncement first such case
came in front of Indian court where court granted benefit to accused under Exception 5 was
the case of Kanaya Kosvan v. Emperor11 were accused killed her concubine when she took
the knife out of his waist, put it into his hand and asked him to kill her. He accordingly cut
her neck with the knife. Another such case again witnessed from Madras High court where
accused killed his concubine who suggested for both to commit suicide.12
Although later Madras High court criticizes both these judgments in Re, Thangavelu
Mudali13, in this case, husband killed his wife when she has refused to go back to her
mother’s house rather opted to be killed by him. Court held that she flatly refused to go
back to her mother and said that if her husband insisted on her doing so, she would rather
have preferred to be killed. In the opinion of the court, this was not the type of consent,
which exception 5 contemplates. The court in criticism of previous judgment stated that in
first case women had not given qualified consent which is required in exception 5 of IPC
300, and in the second case, women consented, in a situation where both going to die
simultaneously. She never consented for a situation where she would be killed and men
will keep on living.
Another case where the court granted the advantage to accused under Exception 5 of
Section 300 of IPC was Dasrath Paswan V State of Bihar14. where Patna high court
provided the relief to the accused husband who could not pass tenth class despite repeated
attempt, he had failed thrice in annual examination. His wife aged 19, however, was a
literate woman. The accused frustrated in his attempt to pass the examination when his
wife was quite educated decided to put an end to his own life. The wife thereon requested
him to kill her first and then kill himself. The accused killed his wife but was arrested
before he could kill himself. The accused after killing his wife attempted to commit suicide.
Evidence showed that in pursuance of suicide pact deceased wife consumed poison and
when she felt suffocation accused husband put his hand on her mouth resulting in her death.
So it became clear that the deceased had suffered death at hands of accused with her own
consent. It was held that exception 5 to Section 300 was attracted and the conviction of
accused was altered to one u/ s. 304 Part I.
10 Ratanla and Dhirajlal, The Indian Penal Code, 398 (Lexis Nexis, India, 34th edition, 2018)
11 Kanaya Kosvan v. Emperor, AIR 1931 Mad 436
12 Re, Naina Mathu Kannappan,AIR 1940 Mad 138.
13 Re, Thangavelu Mudali,1956 CrLJ 244 case
14 Dasrath Paswan v State of Bihar AIR 1958 Pat 190

Another specific Section which provides consent as a defense is a Section 313.
Section 313 Causing miscarriage without woman's consent.
Whoever commits the offence defined in the last preceding section without the
consent of the woman, whether the woman is quick with child or not, shall be
punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to
fine.
Section 313 would be applicable only in the case where it is established that pregnancy has
been terminated without her consent. Such issue came in front of the court in Shantaram
Krishna Karkhandis & Anr v. State of Maharashtra & Anr.15, where Dr. earlier said that
the abortion was done with consent but later change his statement. Husband giving a pill
for abortion which results in miscarriage would also be considered offense under this
section.16
Section 360 Kidnapping from India
Whoever conveys any person beyond the limits of India without the
consent of that person, or of some person legally authorized to consent
on behalf of that person, is said to kidnap that person from India.
in case of Haribhai court stated if the person above the age of 12 is taken out with his
consent than it won't be considered as kidnapping.17
Another Major section where consent can play a very vital role is Section 376. Section 375
defines as to what constitutes as rape also define certain conditions which is essential for
rape and consent is one of them.
Prior to the 2013 amendment consent in section 375 was not mentioned section 90 describe
as to what constitutes the consent. Courts through judicial pronouncement provide the
definition of consent when it comes to rape.
Section 375 secondly, thirdly, fourthly, fifthly, sixthly, seventhly describe the requirement
of consent of rape.
Secondly.--Without her consent.
Thirdly.--With her consent, when her consent has been obtained by
putting her or any person in whom she is interested, in fear of death or of
hurt.
Fourthly.--With her consent, when the man knows that he is not her
husband and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married.
15 Shantaram Krishna Karkhandis & Anr v. State of Maharashtra & Anr., 2007 CrLJ 149(Bom)
16 Pranab Kanti Sen v. State of West Bengal, 2010 CrLJ 162(Cal).
17 Haribhai,(1918) 20 Bom LR 372

Fifthly.--With her consent when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication or the administration by
him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of
that to which she gives consent.
Sixthly.--With or without her consent, when she is under eighteen years
of age.
Seventhly.--When she is unable to communicate consent.
As consent play a vital role in rape so if accused able to prove that the act has been
committed with the consent of the victim, could be acquitted in all cases except in case of
Section 376 (i) which talks about statutory rape. It mentions that committing the rape of
women who are below the age of sixteen. It means even if girls below the age of sixteen
gave consent to have sexual intercourse accused has no defense.
When it comes to defining as to what constitutes consent then Section 376 Explanation 2
defines it as
“`Consent means an unequivocal voluntary agreement when the woman by
words, gestures or any form of verbal or non-verbal communication,
communicates a willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist the act of penetration
shall not by the reason only of that fact, be regarded as consenting to the sexual
activity”
This definition was included by Criminal (amendment) Act, 2013. Prior to this supreme
court in Rao Harnarain Singh Sheoji Singh v State of Punjab18 gave extensive definition.
In this case, Rao Harnarain Singh asked his servant to send his wife for his friend's pleasure,
after persuasion wife agreed to go, she, later on, died after sexual intercourse. Accused and
his friends were tried for the case of rape, accused contested that she gave the consent when
she came. The Court said
“A mere act of helpless resignation in the face of inevitable compulsion,
quiescence, non-resistance, or passive giving in, when volitional faculty is
either clouded by fear or vitiated by duress, cannot be deemed to be "consent"
as understood in law. Consent, on the part of a woman as a defense to an
allegation of rape, requires voluntary participation, not only after the exercise
of intelligence, based on the knowledge, of the significance and moral quality
of the act but after having freely exercised a choice between resistance and
assent.
Submission of her body under the influence of fear or terror is no consent.
There is a difference between consent and submission. Every consent involves
a submission but the converse does not follow and a mere act of submission
does not involve consent. Consent of the girl in order to relieve an act, of a
18 Rao Harnarain Singh v State of Punjab 1985 CriLJ 563

criminal character, like rape, must be an act of reason, accompanied with
deliberation, after the mind has weighed as in a balance, the good and evil on
each side, with the existing capacity and power to withdraw the assent
according to one's will or pleasure.
A woman is said to consent, only when she freely agrees to submit herself,
while in free and unconstrained possession of her physical and moral power to
act in a manner she wanted. Consent implies the exercise of a free and
untrammeled right to forbid or withhold what is being consented to; it always
is a voluntary and conscious acceptance of what is proposed to be done by
another and concurred in by the former. On the material placed before me, it
cannot reasonably be argued that Mst. Surti was an assenting victim to the
outrage perpetrated on her, on a fatal night. It is also not possible for me to
accept the contention of the counsel for the accused petitioners, that Kalu Rani,
the husband of the girl had freely and voluntarily accepted the importunate
overtures, said to have been made to him, by Rao Haranarain Singh with full
awareness of and willing concurrence in the proposed acts to which his wife
was to be subjected by the accused persons.”
In modern times the cases of rape which arise are not related to consent rather getting
consent under the misrepresentation of fact. As section 90 says that consent would not be
considered as consent if it is intended under the misconception. There are furry of cases
in various cases where accused are being charged with getting assent under the pretext of
marriage. Supreme court through various judgment tried to settle this debate.
In Jayanti Rani Panda v State of West Bengal,19 a case where accused used to visit the
victim’s house and fall in love with her so do she. Accused under the promise of marring
with the victim had sexual relation for several months. Finally when the victim got
pregnant and forced accused to marry accused dined to marry her. Now question front of
the court was whether promise gives to marry and not able to fulfill would constitute
misconception which section 90 talks about. Court held:
“The failure to keep the promise at a future uncertain date due to reasons not
very clear on the evidence does not always amount to a misconception of fact
at the inception of the act itself. In order to come within the meaning of
misconception of fact, the fact must have immediate relevance. The matter
would have been different if the consent was obtained by creating a belief that
they were already married. In such a case the consent could be said to result
from a misconception of, fact. But here the fact alleged is a promise to marry
we do not know when. If a full-grown girl consents to the act of sexual
intercourse on a promise of marriage and continues to indulge in such activity
until she becomes pregnant it is an act of promiscuity on her part and not an
act induced by a misconception of fact. Section 90 IPC cannot be called in aid
in such a case to pardon the act of the girl and fasten criminal liability on the
19 Jayanti Rani Panda v State of West Bengal 1984 CriLJ 1535

other unless the Court' can be assured that from the very inception the accused
never really intended to marry her”
In another similar case in Uday v State of Karnataka20 accused promised to marry victim
but later dined and mention, as they belong to different caste marriage, is not possible. In
the case, the question was on the part of Section 90 it says “… if the person doing the act
knows, or has the reason to believe….” The question in front of the court was whether the
consent is given under the misconception of fact and accused knew that the consent is
provided due to his misconception.
To answer the first contention the court held that the victim knew that the proposal was
bound to meet with stiff opposition from members of both families. There was, therefore, a
distinct possibility, of which she was clearly conscious, that the marriage may not take place
at all despite the promise of the appellant. As to second contention, court held the promise
of accused to the victim was not to take her advantage, through the stories provided by both
parties it was clear that they were in deep love and it usually happens in such cases, when
two young persons are madly in love, that they promise to each other several times that
come what may, they will get married.
There are other provisions which specifically define consent as a defense like Section 378 Theft,
Section 390 Robbery, Section 415 Cheating, Section 497 Adultery.
Defenses in criminal law reduce the liability of accused and even in some case, it removes
absolutely. Consent as defence, work as absolute in certain crime which takes away any liablity of
offender and in certain cases it although, do not remove liability but plays vital role in sentnecing
and in certain situation it act as there was no consent at all. important point to remember is that
proving that consent of victim, beyond any reasonable doubt, is a tricky thing as courts often go
under the presumption that there was no consent.
20 Uday v State of Karnataka AIR 2003 SC 1639

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