Section 90 IPC: Consent Known to Be Given Under Fear or Misconception
Section 90 of the Indian Penal Code, 1860 explained when apparent consent was not treated as consent for the purposes of the IPC. The provision covered consent caused by fear of injury or misconception of fact, inability to understand because of unsoundness of mind or intoxication, and consent given by a person under twelve years of age.
Section 90 of the Indian Penal Code, 1860
Meaning and Scope of Section 90 IPC
Section 90 did not create a general positive definition of consent. Instead, it stated circumstances in which an apparent consent was not the consent contemplated by the IPC. The provision therefore operated as an important qualification wherever another IPC provision made consent legally relevant.
1. Consent under fear of injury
Consent was not legally effective under Section 90 when it was given because of fear of injury and the person doing the act knew, or had reason to believe, that the consent resulted from that fear. The provision therefore required attention both to the state of mind of the person giving consent and to the knowledge or reason to believe of the person acting upon it.
2. Consent under misconception of fact
Consent given under a misconception of fact was similarly excluded where the person doing the act knew, or had reason to believe, that the consent was given because of that misconception. A mere allegation of misconception did not remove the statutory requirement concerning the knowledge, or reason to believe, of the person doing the act.
3. Unsoundness of mind or intoxication
Section 90 also treated consent as ineffective where, because of unsoundness of mind or intoxication, the person giving it was unable to understand the nature and consequence of that to which consent was given. The statutory focus was therefore on the person's capacity to understand the nature and consequence of the act.
4. Consent of a child under twelve
Unless a contrary intention appeared from the context, consent given by a person under twelve years of age was not treated as consent for the purposes of the IPC under Section 90.
Essential Elements at a Glance
| Situation | Rule under Section 90 IPC |
|---|---|
| Fear of injury | Consent was ineffective where it resulted from fear of injury and the actor knew or had reason to believe that the fear caused the consent. |
| Misconception of fact | Consent was ineffective where it resulted from a misconception of fact and the actor knew or had reason to believe that the misconception caused the consent. |
| Unsoundness of mind or intoxication | Consent was ineffective where the person could not understand the nature and consequence of what was being consented to. |
| Person under twelve | Unless the context indicated otherwise, consent of a person under twelve years of age was not consent contemplated by the IPC. |
Relationship with the IPC General Exceptions
Section 90 appeared in Chapter IV of the Indian Penal Code dealing with General Exceptions. It was especially relevant when considering provisions in which consent affected criminal liability, including the neighbouring provisions on acts done by consent or for a person's benefit. It should therefore be read with the particular offence or exception in which consent is relied upon, rather than in isolation.
Practical Legal Significance
- The existence of apparent or verbal consent was not necessarily conclusive.
- For fear of injury or misconception of fact, the statutory text expressly addressed the actor's knowledge or reason to believe.
- For unsoundness of mind or intoxication, the relevant question under the section was whether the person could understand the nature and consequence of the matter consented to.
- The rule concerning a person under twelve applied unless the context showed a contrary intention.
Note: This article is a general legal reference to Section 90 IPC and the legal position before 1 July 2024. Application to a particular case depends on the facts, the offence involved, and binding judicial decisions.