The section in its first paragraph states that a consent given by a person under fear of injury, or under a misconception of fact, is not a valid consent provided the person doing the act knows or has reason to believe that the consent was given in consequence of such fear or misconception.
This latter part is very important in the sense that mere giving of a consent under fear of injury or misconception of fact is not enough. The consent becomes not a valid consent only when the taker of the consent also knows or has reason to believe that the person giving the consent is acting under such fear or misconception.
The second paragraph of the section deals with consent given by persons of unsound mind or persons who are intoxicated. It says that consent given by a person who because of unsoundness of mind or intoxication is not able to understand the nature and consequence of that to which he gives his consent, is not a valid consent.
It is not necessary that intoxication must be without ones knowledge or against one’s will as is necessary in the defence of intoxication provided under section 85 of the Indian Penal Code. It is important to note here that whether the taker of the consent knows or not that the giver of the consent is a person of unsound mind or is an intoxicated person is not at all relevant.
The third paragraph of the section states that consent given by a person under twelve years of age is not a valid consent unless there is any provision to the contrary in the context. This means that the general law is that a child below twelve years’ of age is incapable of giving consent but if there is specific provision to the contrary or the contrary appears from the context, then the general law is superseded to that extent.
Fear of Injury
According to section 44 of the Code the word ‘injury’ denotes any harm whatever illegally caused to any person in body, mind, reputation or property. Consequently, consent given under fear of injury is not limited to physical injury even though in most of the cases which come up before the Courts the question of consent given under fear of physical injury is involved. In Dasrath Paswan v. State the accused was quite upset mentally after having failed in the High School examination for three years in a row.
He told his wife, a literate woman of about nineteen years, that he wanted to die. The wife asked him to kill her first and then kill himself. The accused killed her and then before he could kill himself, he was arrested. The Supreme Court held that the deceased wife had given her free consent to be killed by her husband and, therefore, the accused was guilty of culpable homicide not amounting to murder only under section 304, Part I and not of murder under section 302 of the Code. A lenient view was taken and he was sentenced to five years’ rigorous imprisonment.
Misconception of fact
In Poonai Fattemah v. Emp. the deceased allowed himself to be bitten by a snake on the misconception created in his mind by the accused that the accused had power to cure him and that the deceased would not die. It was held that the deceased had consented to be bitten by a snake under a misconception of fact and that the accused also knew or had reason to believe that the consent had been given by the deceased under such misconception. Consequently, it was not a valid consent under this section.
On the other hand in Jayanti Rani Panda v. State the question was as to whether the accused had raped the complainant. The accused was a frequent visitor to the house of the complainant. In course of time the accused and the complainant prosecutrix felt attracted towards each other.
The accused gave the impression that he would soon marry her. Sexual relations developed between them. When she became pregnant she insisted that the accused should marry her immediately whereas the accused advised abortion for which she was not prepared.
It was held that the accused was not guilty of rape as the prosecutrix had given her consent freely for the series of sexual intercourses with him and section 90 could not be held to be applicable until it could be established beyond reasonable doubt that right from the beginning of the sexual contact between the two the accused had no intention to marry her.
In Uday v. State of Karnataka? the accused and the prosecutrix were deeply in love. He promised to marry her on later date. She was a nineteen year college girl and was aware of the fact that they belonged to different castes and proposal of their marriage would be opposed by their families. Yet she started cohabiting with him consciously.
The Supreme Court held that consent on her part could not be said to be under a misconception of fact, i.e., promise to marry, but she also desired for it. Also, false promise is not a fact under the Indian Penal Code. The accused was acquitted of the charge of rape.
In Jakir Ali v. State of Assam, it was proved beyond doubt that the accused had sexual intercourse with the victim on false promise of marriage. The Gauhati High Court held that submission of body by a woman under fear or misconception of fact cannot be construed as consent and so conviction of the accused under sections 376 and 417 of the Indian Penal Code was proper.
Consent and submission
Consent and submission are distinct. Every consent may involve a submission but submission may not always involve consent. The matter was looked into by the Punjab High Court in the case of Rao Harnarain v. State. Under pressure from one of the accused who was an advocate and additional public prosecutor, a husband was induced to provide his wife to satisfy the lust of the advocate and his friends. They ravished the woman during the night as a result of which she died. Some neighbours had heard shrieks of the deceased during the night. The Court held the accused guilty of rape. Distinguishing between consent and submission the Court observed:
“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 held to be ‘consent’ as understood in law. Consent, on the part of a woman as a defence 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 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.”
Honest misconception of both the parties
An honest misconception on the part of both the parties may not invalidate the consent. In a case the private parts of the deceased were cut by the accused eunuchs as a result of which the deceased died. It was proved that the accused eunuchs had performed similar acts in the past and they never knew that the practice of emasculation was against the law. The accused were held liable for culpable homicide not amounting to murder, and not murder, on the ground that they had acted with free consent of the deceased who was a man of full age and had submitted himself for the act voluntarily.
Similar provisions relating to consent exist in the English Criminal law also. The prosecutrix, a nineteen years old girl, consulted the accused, a medical doctor, with regard to certain disease for which the doctor advised operation. She gave her consent for the operation under the guise of which he had sexual intercourse with her.
The accused was held guilty of rape on the ground that the victim had consented under the misconception that he was performing an operation on her. Similarly, where the accused, a music teacher had sexual intercourse with a girl pupil under the guise of improving her voice, he was held guilty of rape as the consent obtained from her was under a misconception of fact that he was trying to improve her voice.