Monday, 7 February 2022

consent under IPC

 The General Exception of Consent under IPC

By Shreya Verma

Consent, as defined in Black’s law dictionary means, “A concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith”.

 Sec. 90, IPC defines consent as, “Consent known to be given under fear or misconception.—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or 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.”

The definition of consent as given under section 90 of IPC is negatively worded, meaning thereby, it defines what will not amount to consent. Section 90 can be divided in following 3 parts:


  1. Consent not free->When the person consenting has given it under a fear of injury or misconception; and

->The person to whom it is given knows this fact or has a reason to believe the same.

  1. Consent by insane person- When the consent is given by a person of unsound mind or under intoxication, so that, he becomes unable to understand the nature of the consent.

  1. Consent by minor- The consent is given by a minor who is blow the age of 12 years.

S. 90 of IPC, regulates the operations of Sections 87, 88 and 89. Whereby the consent can be taken as defence in a criminal proceeding under the general exceptions as provided in the code:

 Section 87 talks about the situation when a person causes death or grievous hurt to another with his Two persons agreed to contest a fence, both being major, consents to risk any harm caused thereby. 

Section 88 talks about the situation when and act that was done with good faith and with the consent (expressed or implied) of the person and for the benefit of that person. In such case if death or grievous hurt is caused, then, it will be guarded by the provisions of section 88. eg. Surgeon causing a surgery in good faith and for the benefit of the person with the consent of the patient or his guardians. 

And section 89 talks about situation when an act is done in good faith for and the benefit of a person unable to give consent by a virtue of young age or Insanity with the consent of the guardians of that minor or insane person.

Thus, general exception of consent as given under Section 87, 88 and 89 have been defined under Section 90. So, if a person agrees to take risk but he gave the consent under misconception, then the consent is not free and in case of any harm caused thereby will not protect the person inflicting such harm under the general exception under Section 87.

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