Section 90 IPC - A section to be used sparingly

This section is being used by the courts in India, by & large, in conjunction with other section of the law where “Consent” of the victim is in question. Let us first read the bare act:

Section 90.  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.

As the very headline of the section clarifies, this section shall come into play, wherein there are known forms of fear and misconception under which a person would generally give consent. Additionally, the opening line of this section i.e. “A consent in not such a consent….”, shows that the legislature found it easier and apt to define consent in negative terms. The legislature has defined what act is without consent and with this we can easily infer that rest every other act shall be with consent.

This section has been bifurcated into two parts. First is the consent of the victim and second is the knowledge of the accused.

First part of the section:

Consent given under fear of injury

Any sane person would like if someone inflicts and injury to him/her or to his/her loved one. In this context, this elaboration has been added. For example, if someone holding another person on gun point and demands to shell out money. And the aggrieved hands over the demanded money, such act by the aggrieved shall be deemed to be donewithout consent. Similarly, in a case of sexual assault, if the aggressor demands the aggrieved to submit himself or herself to his demands and the aggrieved calmly follows, such submission shall be deemed to be without consent.

Consent given under misconception of fact

This portion of the section has been infamous in the criminal jurisprudence and invoked endless times in various cases. This portion finds it’s application straightforwardly in cases of fraud & deception. Familiar example is that of “False Promise of Marriage”. This is very well known phenomenon wherein the victim alleges that the accused promised her that he would marry her on a later date, but finally withdrawn himself. Such cases invoke this portion of the law.

It is interesting to note here, is that a promise is not a fact within the meaning of the code. But courts in India have by & large adopted this portion to bring the accused under the ambit of the Indian Penal Code (IPC). This has given rise to number of cases being registered year after year.

Second part of the section:

This part defines the possibility of the knowledge of the accused about his act which is being called foul by the victim. It says that if the accused did the act, and he/she knew that such act was sufficient to deceive the victim or to threaten the victim, then such knowledge shall be culpable in nature and fulfill the criteria of criminal intention. But in cases of “False Promise of Rape”, such knowledge is generally not present, because the victim generally consents to the same act multiple times and in few cases in such numbers, which cannot be accepted as an act based on any misconception. Hence knowledge of the accused is very hard to infer.

Consent of insane person or child

This portion of the section defines the consent of insane person and child. The definition of insane, for the purpose of this section, includes intoxication, unsoundness of mind and finally the one who is unable to understand the nature and consequences of the act. Also, this explains that consent of a child below 12yr is not consent even if the child did consent at all.

It is very interesting to note that this portion does not actually deals with only a lunatic but also defined who all could be guarded under the purview of this section. This portion of the section has separately defined that who would be, for the purpose of this section, be considered an insane person. Best example is the line, “…who is unable to understand the nature and consequences of the act.” This shows that if a girl consents for sexual intercourse based on any “promise of marriage” but is able to understand the nature and consequences of her acts, then she cannot invoke this section being considered a sane person.

Courts in India, generally allow institution of such cases which only prolong the agony of the innocents. While the clarity exists in the law since the institution of Section 90 IPC, yet it is very difficult to understand why courts allow “Promise of marriage” cases to be tried at all. This is highly unjustified and in breach of the fundamental rights of a person to be accused of rape and then tried for years. This is grave infringement of the accused’s fundamental right to liberty which is kept at stake by mere allegations of sexual intercourse. When we already know, if the girl could understand the nature and consequences of her act, then how can we say that he did not consented? Is it that courts have adopted a means to mold the laws and bring such interpretation which would perpetuate their career and keep the cases live? The very purpose of the court is to deliver justice and close the pending cases as soon as possible. But if during institution of a case it gets clear that the case is not triable as per existing law then why to go ahead with the trial? This is a change that is urged by the help of explanation of Section 90 IPC.

Peace

Saurabh.V