ON

2018-2020

Submitted to: Submitted by:

Dr Prayas Dansana Ramananda Pradhan
Lecturer, Roll No-10S18LL05
P G Dept. of Law, Paper- LL.M. E-511
Sambalpur University 3rd Semester

1. INTRODUCTION
 Consent is a simple yet complicated term in legal sense. It covers in its
arena on who
can consent, how can consent, on what can consent and where can consent. Indian
judiciary
has face challenges while interpreting the term consent which give rise to catena
of
judgments.
The use of consent in any act divides its liability upon the consenting
person. In law
of torts, volenti non fit injuria which means when a person consents to the
infliction of some
harm upon himself, he has no remedy for that. It is a general defence in law of
torts. Similar
provision is expressed under section 87-92 of Indian Penal Code, 1860. As these
provisions
are incorporated in the chapter of general exceptions it applies to all offences in
IPC. So, no
need to provide in each section. The term consent has also been placed as an
essential
element in the Indian Contract Act, 1872 under section 13 & 14. Section 10 of the
Indian
Contract Act, 1872 says that “all agreements are contracts if they are made by the
free
consent of parties competent to contract, for a lawful consideration and with a
lawful object,
and are not hereby expressly declared to be void. Section 10 also provides that
unless law
requires, such contract need not be registered or need not be in writing. This is
the legal
position of consent and contract in the Law of the Contract. In this paper, let
discuss only on
the part of law provided under IPC for consent as a general defence.

2. CONSENT
Definition
Some of the Sections from 87 to 95 of the Indian Penal Code say about this
particular
legal matter, i.e., consent. Mere reading of these Sections, illustrations, is
sufficient to
understand the effectiveness of “consent”. The term “consent” means acquiescence,
concurrence (n.) to be of one mind; to comply (v.t.).
In most of the decisions of the Supreme Court and High Courts in which the
meaning
of the expression ‘consent’ under the Indian Penal Code was discussed, reference
was made
to the passages occurring in Stroud’s Judicial Dictionary, Jowitt’s Dictionary on
English
Law, Words and Phrases, Permanent Edn and other legal dictionaries.
Stroud defines consent as “an act of reason, accompanied with deliberation,
the mind
weighing, as in a balance, the good and evil on each side”.
Jowitt, while employing the same language added the following: “Consent
supposes
three things – a physical power, a mental power and free and serious use of them.
Hence it
is that 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”.
In Words and Phrases, Permanent Edn, Vol. 8A, the following passages culled
out
from certain old decisions of the American Courts are found:
 “… adult female’s understanding of nature and consequences of sexual
act must be
intelligent understanding to constitute ‘consent’.
Consent within penal law, defining rape, requires exercise of
intelligence based on
knowledge of its significance and moral quality and there must be a choice
between
resistance and assent….”1
Consent occurs when one person voluntarily agrees to the proposal or
desires of
another.2 It is a term of common speech, with specific definitions as used in
fields such as
law, medicine, research, and sexual relationships. Types of consent include
implied consent,
expressed consent, informed consent and unanimous consent. Consent as
understood in
specific contexts may differ from its everyday meaning. For example, a person
with a
mental disorder, a low mental age, or under the legal age of sexual consent may
willingly
engage in a sexual act that still fails to meet the legal threshold for consent
as defined by
applicable law.
Types
An express consent is one that is clearly and unmistakably stated,
rather than implied.
It may be given in writing, by speech (orally), or non-verbally, e.g. by a
clear gesture such
as a nod. Non-written express consent not evidenced by witnesses or an audio or
video
recording may be disputed if a party denies that it was given by him.
Implied consent is consent inferred from a person's actions and the
facts and
circumstances of a particular situation (or in some cases, by a person's
silence or inaction).
Some examples include implied consent to follow rules and/or regulations at an
education
institution and the implied consent to physical contact by participants in a
hockey game or
assault in a boxing match.
Informed consent in medicine is consent given by a person who has a clear
appreciation and understanding of the facts, implications, and future
consequences of an
action. The term is also used in other contexts, such as in social scientific
research, when
participants are asked to affirm that they understand the research procedure
and consent to
it.
Unanimous consent, or general consent, by a group of several parties
(e.g., an
association) is consent given by all parties.
Substituted consent, or the substituted judgment doctrine, allows a
decision maker to
attempt to establish the decision an incompetent person would have made if he
or she were
competent.3

1
Deelip Singh alias Dilip Kumar vs State of Bihar; (2005) 1 SCC 88
2
"Home : Oxford English Dictionary" www.oed.com. retrieved on 01-10-2019
3
Garner, Bryan (2011). Black's Law Dictionary. West Publishing Co. p. 726.
 TORT
In law of torts, consent can be either expressed or implied. For
example, participation
in a contact sport usually implies consent to a degree of contact with other
participants,
implicitly agreed and often defined by the rules of the sport. Another specific
example is
where a boxer cannot complain of being punched on the nose by an opponent;
implied
consent will be valid where the violence is ordinarily and reasonably to be
contemplated as
incidental to the sport in question. 4 Express consent exists when there is
oral or written
agreement, particularly in a contract. For example, businesses may require that
persons sign
a waiver (called a liability waiver) acknowledging and accepting the hazards of
an activity.
This proves express consent, and prevents the person from filing a tort lawsuit
for
unauthorised actions.
In English law, the principle of volenti non fit injuria applies not only
to participants
in sport, but also to spectators and to any others who willingly engage in
activities where
there is a risk of injury. Consent has also been used as a defense in cases
involving
accidental deaths during sex, which occur during sexual bondage. Time (May 23,
1988)
referred to this latter example, as the "rough-sex defense". It is not
effective in English law
in cases of serious injury or death.
As a term of jurisprudence prior provision of consent signifies a
possible defence (an
excuse or justification) against civil or criminal liability. Defendants who
use this defense
are arguing that they should not be held liable for a tort or a crime, since
the actions in
question took place with the plaintiff or "victim's" prior consent and
permission.

3. DEFENCE TO CONSENT
Two elements are required for the consent defense: the defendant must
consent
knowingly (cannot be too young, mentally incompetent, or intoxicated) and
voluntarily
(cannot be forced, threatened, or tricked).
Three situations where consent can operate as a defense are sexual
offenses, situations
that do not result in serious bodily injury or death, and sporting events.
The will and consent often interlace. As such an act done against the
will of a person
can be said to be an actg done without consent. But, sec-90 of IPC cannot be
construed as
an exhaustive definition of consent for the purposes of the Indian Penal Code.
The normal
connotation and concept of consent is not intended to be excluded.5
4
Pallante vrs Stadiums Pty Ltd (No.1), [1976] VicRp 29
5
Deelip Singh vs State, (2005) 1 SCC 88
 The question of consent of the prosecutrix is really a matter of
defence by the accused
and it is for him to place materials from which the court can come to the
conclusion that the
prosecutrix was a consenting party.6

4. EFFECT OF CONSENT ON OFFENCE OF IPC

Sec. 87 to Sec. 92 explains about the provisions of Consent. When
a person
willfully consents an injury he cannot blame the person who inflicted the
injury.
Especially in case of medical treatment, the doctor gives injection. It
gives pain. We bear
it.
The provisions of Indian Penal Code dealing with consent are as
follow:
Sec. 87. 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.
Illustration:
A and Z agree 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.

Sec. 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.
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.

6
State vs Shrikant, AIR 2004 SC 4404
 Sec. 89. Act done in good faith for benefit of child or insane person, by or by
consent of
guardian: 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: Provisos: Provided,—
Firstly: 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.
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;
inasmuch as
his object was the cure of the child.

Sec. 90. Consent known to be given under fear or misconception: A consent is not
such a
consent as is 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.
Sec.91. Exclusion of acts which are offences 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.
Illustration:
Causing miscarriage (unless caused in good faith for the purpose of saving the
life of
the woman) is an offence independently of any harm which it may cause or be
intended to
cause to the woman. Therefore, it is not an offence “by reason of such harm”; and
the
consent of the woman or of her guardian to the causing of such miscarriage does not
justify the act.

Sec. 92. Act done in good faith for benefit of a person without consent: Nothing is
an
offence by reason of any harm which it may cause to a person for whose benefit it
is done
in good faith, even without that person’s consent, if the circumstances are such
that it is
impossible for that person to signify consent, or if that person is incapable of
giving
consent, and has no guardian or other person in lawful charge of him from whom it
is
possible to obtain consent in time for the thing to be done with benefit:
Provisos:— Provided,—
Firstly: That this exception shall not extend to the intentional causing of death,
or 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 hurt, or
to the
attempting to cause hurt, for any purpose other than the preventing of death or
hurt;
Fourthly: That this exception shall not extend to the abetment of any offence, to
the
committing of which offence it would not extend.
Illustrations:
(a) Z is thrown from his horse, and is insensible. A, a surgeon finds that Z
requires to
be trepanned. A, not intending Z’s death, but in good faith for Z’s benefit,
performs
the trepan before Z recovers his power of judging for himself. A has committed
no
offence.
 (b) Z is carried off by a tiger. A fires at the tiger knowing it to be
likely that the shot
may kill Z, but not intending to kill Z, and in good faith intending Z’s
benefit. A’s
bullet gives Z a mortal wound. A has committed no offence.
(c) A, a surgeon, sees a child suffer an accident which is likely to prove
fatal unless an
operation be immediately performed. There is no time to apply to the
child’s guardian.
A performs the operation in spite of the entreaties of the child,
intending in good faith,
the child’s benefit. A has committed no offence.
(d) A is in a house which is on fire, with Z, a child. People below hold
out a blanket. A
drops the child from the housetop, knowing it to be likely that the fall
may kill the
child, but not intending to kill the child, and intending, in good faith,
the child’s
benefit. Here, even if the child is killed by the fall, A has committed no
offence.
Explanation: Mere pecuniary benefit is not benefit within the meaning of
Sections
88, 89 and 92.
RAPE – Section 375 of the Indian Penal code defines rape as the offence
committed
by a man having sexual intercourse with a woman “without her consent”. Since
criminal
law attempts to penalize a criminal’s ‘guilty mind’, Indian courts have often
applied a
standard of consent subjective to the accused to determine the existence or
absence of
consent. In Tukaram vs State7, it was held that the fear which the third clause
speaks of is
negative by the circumstances that the victim girl had been taken away by the
accused
appellant from amongst her near and dear ones.

6. LEADING CASELAWS DISCUSSING IMPORTANCE OF CONSENT IN

CRIMINAL LAW
(a) Dr. Adil Mahmud Ali @ Dr. Ali Adil Mahmud & anr vs. State of Uttar
Pradesh8
In this case, the Hon’ble Allahabad High Court quashed criminal
proceedings for
medical negligence against two doctors and opined that ‘risk is always involved
and when
the patient/family members give consent for being operated, they give consent
for such kind
of operation to be conducted and to bear the consequences’.

(b) Sanjeev Nanda vs State of NCT of Delhi9

7
AIR 1979 SC 185
8
 Application u/Sec 482 No.8558 of 2013
9
2007 Cri L J 3786
 In this case, a single bench of Justice Ravindra Bhat held that a
judicial magistrate can
order the accused to give blood samples during the course of inquiry or trial.
Though sec 53
of the Code of Criminal Procedure refers to examination of the accused by a
medical
practitioner, at the request of a police officer, there is no reason why the
Court should not
have a wider power for the purpose of doing justice in criminal cases by
issuing a direction
to the police officer to collect blood sample from the accused.

(c) Sankunni vs Swaminatha Pattar10

In this case, the Madras High Court has held that a school teacher as
delegate of the
parents may for the purpose of correcting the child inflict moderate and
reasonable corporal
punishment.

(d) G.B. Ghatge vs Emperor11

Here Bombay High Court has held that a school teacher commits no offence
if he
inflicts moderate corporal punishment on a pupil. In this case the boy was 15
years of age
and the school teacher gave 5 or 6 strokes with a cane as the boy was guilty
of misconduct
in his class. It was held that the school teacher committed no offence in view
of he
provisions of sec 88 of the Indian Penal Code as the punishment was for
correcting the boy
and for maintaining school discipline. Similar judgments were pronounced by
different
High Courts such as Ganesh Chandra Saha vs Jiw Raj Somani12.

(e) Mahmood Farooqui vs. State of NCT of Delhi

In Mahmood Farooqui v. State of NCT of Delhi, the accused and victim
were
involved in an intimate relationship when the accused forced himself upon her.
Fearing
possible physical violence, the victim did not physically resist the accused’s
advances and
feigned an orgasm. Despite her vocal resistance, the court assumed her consent
suggesting
that in some circumstances, “a feeble no may mean a yes” especially “when
parties are
known to each other, … and if, in the past, there have been physical
contacts”. Rather
shockingly, the court imputed the victim’s consent from her prior flirtations,
lack of physical
resistance and ‘feeble no’. The assumed standard of determining consent used
by the Delhi
High court was subjective to the accused. What the High court tried to unearth
through
discussing the victim’s ‘playful banter’, ‘flirtations’ and ‘acquaintance’ was
the
manifestation of intention on her part and how the same was qualified in the
mind of the
10
AIR 1922 Madras 200
11
AIR 1949 Bombay 226
12
AIR 1965 Cal 32
accused. Although the victim might not internally consent to sexual intercourse, if
her
actions lead the accused to consider that she was consenting, no offence is
committed.
But is such a standard required by law?

7. CONCLUSION
When the Constitutional validity of the law enacted by the legislation is
under
challenge and there is no challenge to the legislative competence, the court will
always raise
a presumption of the constitutionality of the legislation. However, if the law
under challenge
violates the fundamental right of the citizens, the law is arbitrary or
discriminatory, then the
court can either hold the law to be totally unconstitutional and strike down the
law or the
court may read down the law in such a manner that the law when read down doesn’t
violate
the constitution. Therefore, if the legislature enacts a law which is violative of
the
fundamental rights of the citizen, is arbitrary and discriminatory, then the court
would be
failing in its duty. If it doesn’t either strike down the law or read down the law
in such a
manner that it falls within four corner of the constitution.
The state is entitled and empowered to fix the age of consent. But it must be
reasonable classification. The consenting age for sex differs in all statues such
as INDIAN
PENAL CODE,1860, PREVENTION OF SEXUAL OFFENCE AGAINST CHILDREN
ACT, 2012, JUVENILE JUSTICE CARE AND PROTECTION OF CHILDREN ACT,
2015 etc.
An objective standard of determining sexual consent requires that the victim’s
consent
be determined with reference to the objective implications of her actions or words.
If such
an interpretation is to be drawn from explanation 2 of section 375, the victim’s
actions or
expressions should be qualified as consent or rejection on the basis of the action
or
expression’s ‘equivocality’. An express declaration of a victim’s absence of
consent by a
verbal ‘no’ or alternate verbal equivalent should clearly demonstrate her lack of
consent. As
for the question of the victim’s implied consent, again, the victim’s actions
should
‘unequivocally’ represent her consent. A victim’s past acquaintances or flirtations
do not
meet any standard of equivocality and thus cannot satisfy the standard of
objectivity
required to prove the existence of consent.
It is a practical necessity that a high standard of objectivity be read into
section 375 of
the Indian Penal Code, because it is often difficult for a victim to convey the
absence of
consent. A victim may well submit to an accused’s sexual advances fearing possible
violence and thus, her mere submission cannot constitute consent.
 Rape is not a unique crime requiring non-consent. But it is unique in
the definition
given to consent. As it has been understood, the consent standard denies
female autonomy;
indeed, it even denies that women are capable of making decisions about sex,
let alone
articulating them. Yet consent, if properly understood, has the potential to
give women
greater power in sexual relations and to expand our understandings of the
crime of rape.
That is, perhaps, why so many efforts have been made to define the concept.13
The history of women’s Consent through judicial decisions traces how a
judicial
precedent represses the violence that underlines. Judicial interpretations
have structured the
 Women’s consent by declaring that;
 Women’s consent and her character are made interdependent14,
 Women’s consent is presumed if she is unchaste.
 Her bad character and her consent are regarded as proved if she shows no
outward
signs of struggle resistance screams or absence of injury15,
 Immediate abortion amounts to no consent16

Judgements like Mahmood Farooqui undo the very purpose of 2013 Criminal
Law
(Amendment) Act, which was passed after the highly publicized Delhi gang rape
incident.
The legislation de-recognized the victim’s sexual history and presumed the
absence of
consent in cases of rape, thus establishing an objective standard for
determining consent in
favour of the victim. Such perverse judgments prove that a significant change
in the
interpretations of Indian rape laws is an urgent imperative.
The law traditionally has defined the crime of forcible rape to be an
act of sexual
intercourse accomplished by a man with a woman not his wife, by force and
against her
will. The central substantive element of rape is non-consent.
The term consent is a developing concept and it evolves around the
society we live.
The changing scenario of interpretation of ‘consent’ is more affected by the rate
of crime and
manner of crime committed. This term is an exception as well as a reason for
increase of
crime.

8. BIBLIOGRAPHY & WEBLIOGRAPHY

 1. www.oed.com
 2. Garner, Bryan (2011). Black's Law Dictionary. West Publishing Co. p.
726.
 3.www.lawteacher.net/free-law-essays/criminal-law/consent-defence-
criminal-law-
3735.php

13
Patricia Smith (ed),Feminist Jurisprudence ,Oxford University Press,2003, p.162
14
Laiq Singh v State of UP, AIR 1970 SC 658
15
Tukaram v State of Maharashtra, AIR 1979 SC 185
16
Pratap Mishra v State of Orissa, AIR 1977 SC 1307
 4. www.shareyouressays.com/knowledge/legal-provisions-regarding-consent-in-india-
section-87-to-92-of-ipc/115851
 5. www.theindianlawyer.in/blog/2018/03/10/supreme-court-informed-consent-india/
 6. www.ssconline.com
 7. www.indiankanoon.org
 8. Justice Khastgir on Criminal Major Acts, 12 th edition, Kamal Law House,
S.P. Sen
Gupta