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Any unlawful activity or crime which is done is denoted as offence under Indian Penal Code. Section 40 mentions all those sections which would constitute offence and shall be punishable under this code. There are two elements of offence, Mens Rea which means guilty mind and Actus Reus which means wrongful act.

Consent as a defence is mentioned in Section 87 to Section 92 of the Indian Penal Code.

When two or more individuals who with consent took the risk without knowledge that would harm, cause injury or death to the other, an act is done. The consent in this case, can be expressed i.e., by words or written or implied i.e., act done by an individual. The individuals involved in the act shall be above eighteen years of age i.e., not a minor. It might be possible that the act is done for a reason but if there is consent between the individuals, he shall commit no offence as there was a consent. (Section 87)

For example, A and B have learned fencing for the past 6 years and are of age 20 years. A and B agrees to fence with each other for fun. This implies a consent between the two. If A gets hurts while playing but B had played fairly throughout the game. B shall have committed no offence. B did not have an intention or knowledge that while playing A shall get hurt. The two elements Mens Rea and Actus Reus are missing in this case.

When an act is done with consent took the risk knowingly that this act may harm a person, cause injury or death to any person who would be benefited in good faith. The consent can be expressed or implied. The accused shall commit no offence (Section 88).

For example, a Surgeon A had suggested B (who suffers from a disease) to get an operation done. But there is a possibility that this operation shall cause death. This was informed by the Surgeon to B and B gave a consent to conduct the operation by signing the required documents. There is no intention to cause death by the surgeon and this operation was conducted for the benefit of B. Even if any mishappening took place, A shall have not committed any offence.

In the case law, Harpal Singh v. State of Himachal Pradesh, AIR 1981 SC 361, it is said that consent is a good defence to any offence which took place but when it is proved that the girl who was raped is below the age of 16. The concept of consent becomes irrelevant, and the accused shall be liable for the offence he has done.

When an act is done for benefit in good faith for a person who is under the age of twelve or unsound mind with the consent of the person who is legally in charge or is the guardian. There shall be no offence committed. (Section 89)

There are four exceptions for Section 89. Firstly, there shall be no intention to cause death or attempt to murder. Secondly, the person had the knowledge that the act can cause death or cause harm or injury to the person involved. Thirdly, there shall be no voluntary harm or an attempt to harm unless it is done to for the purpose to prevent the harm or death for the grievous disease. Lastly, there shall be no abetment to any offence.

For example, A was the guardian of B (minor) who suffered from a disease. A for the benefit of B agreed for the surgery without B’s consent knowing that it may cause death. A shall be included in the exceptions of Section 89 as the objective was to get the disease cured.

When a consent is given under any king of fear or any circumstances that would give a reason to believe the facts. This type of misconception or fear is no consent in the eyes of law. In this section, consent from an insane person who does not have a nature of understanding the consequences or is intoxication (intake of alcohol) and consent from a child who is under the age of twelve are two more circumstances which are no consent in the eyes of the law (Section 90).

In the case law, State of Uttra Pradesh v. Naushad, AIR 2014 SC 384, when a person gives a false assurance that he shall marry only when she gets pregnant.  This can become an evidence that he had no intention to marry. It is a case of misconception as he claimed consent only for a sexual relationship. This shall be included in under section 90 of Indian Penal Code.

There are acts which are done with consent or on behalf of someone an offence independently of harm caused with an intention. This is an exception to Sections 87, 88 and 89 (these are not independent of harm caused) (Section 91).

For example, if there is a miscarriage to save the life of a mother in good faith is an offence independently. It might cause harm or intent to harm the women. The consent of the women or the guardian shall not justify the act. This shall not be an offence.

When an act is done in good faith for the benefit of a person without any consent shall not be an offence. This shall not be an offence even if it is impossible to signify the consent or the person is not capable of giving a consent. He would not have any guardian or any lawful person who is in charge (Section 92).

There are four exceptions to Section 92. Firstly, there shall be no intention to cause or attempt to cause death. Secondly, the person shall the knowledge that the act might cause injury or harm the other person unless it is done to prevent any death or injury. Thirdly, the person shall not voluntarily harm or hurt except to prevent any injury. Lastly, there shall be no abetment of offence.

For example, A tiger took A off to the forest. To save A, B had to shoot the tiger. B knew that while shooting the tiger, A’s life is at risk, but B does not have any intention to kill A. Therefore, B did not commit any offence.

Consent can be used as a defence to save the person who is no guilty as the person who gave the consent knew the circumstances and consequences of what would happen. This shows that consent can help an individual but if the consent is misused, the circumstances are different.  There is an offence which took place and shall be guilty.

Author(s) Name: Kriti Kathuria (Bennett University, Greater Noida)

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