CONSENT under IPC

Introduction

While examining any crime, IPC considers two main essentials i.e. Actus Reus and Mens Rea.

Actus denotes an act done by the wrongdoer, whereas Mens Rea means the intention of doing that particular act. A person will be held liable for all the acts that he performed with the intention or knowledge of doing it and possibly aware of the consequences of his acts.

Relating the ingredients of crime with the word consent, It simply means an act done by free will. It comprises of three things-

• A physical power,
• Mental power and
• Free use of them.

Section 90 of IPC

The word ‘consent’ is not defined under IPC. But Section 90 of IPC talks about what doesn’t amount to consent. In other words, it can be said that it is defined in a negative sense. It states, a consent given by a person under the fear of injury, or under a misconception of facts, or by reason of unsoundness of mind, intoxication, or a child under the age of 12 years (unless the contrary appears from the context), who is incapable to understand the nature and consequences of the consented act, is no consent.

The above paragraph indicates that Section 90 can be used as a defence by certain categories. With this, Section 87, 88, and 89 also, regulate the same thing.

• Under criminal law, consent by threat and violence would not be treated as defence. For example, A threatened B with a gun to sign his property paper in favour of S, A’s the son. Here the consent was received under fear of injury. (Section 87)
• Consent obtained by the misconception of facts will hold no value in the eyes of law. For example, a woman had consent sexual intercourse with a doctor on the belief that he was making a medical examination of her. The doctor would be held guilty as he made her believe that he was doing a medical examination of her. (Section 90)
• People who are of unsound mind or in an intoxicated state of mind are incapable to understand the nature and consequences of their acts. For example, A, in a heavily drunken state, signed his property paper in favour of the liquor shop owner just to get one more liquor bottle. In the eyes of the law, his consent has no value.
• Consent given by a child under the age of 12 years holds no value in the eyes of law. In that case, the child’s guardians or the person in charge of him will be responsible for giving consent. (Section 89)

TYPES OF CONSENT

1. EXPRESS

2. IMPLIED

The ‘express consent’ is concerned with permission given for something either verbally or in writing. When your friend borrow your bike for a day and you said ‘Yes’. Then, it will fall under express consent given verbally to him.

H had an operation on his heart. Before the operation, the doctor told him to sign a paper in which it was expressly mentioned that the operation might cause his death. H signed the paper as he had unbearable pain. H died. In this case, the doctor will not be liable.

The term ‘implied consent’ use either for:

(1) Consent by acts and conducts, or

(2) Consent presumed.

H, on being friendly terms with M, goes into his wardrobe in his absence and takes away his shirt without M’s express consent for the purpose of attending a party tonight, and the intention of returning it. H has not committed the offence of theft as he had an impression of M‘s implied consent though M has never given or in any way signified the same. It was presumed consent.

Dasrath Paswan v. State[1]

In this case, the accused has failed an examination for three consecutive years. By dismaying these continuous failures he decided to end his life. He shares his view with his wife who was a literate woman of 19 years of age. His wife said to kill her first and then kill himself. Correspondingly, the accused killed his wife first and was arrested before he could kill himself. The court 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.

Sukaroo Kaviraj v. The Empress[2]

In this case, Mr. Kaviraj, 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.

CONCLUSION:

The above-discussed article shows the importance of the protection of the doer in terms of criminal liability. Because it’s not what we see all the time. Examining ‘with or without consent’ is a must to finalize the major elements of crime viz., Actus Reus and Mens Rea. But in the case of strict liability, criminal law does not recognize consent as a defence.

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[1] 1957

[2] 1887