According to the legal definition of the Consent is based on the Roman Law maxim ‘volenti non fit injuria’ which typically means that when a person has given his\her consent to suffer the harm or the risk committed by other, then he cannot complain for any injury that flows therefrom. Hence in such a case we can say that the act comes under mens rea, which means the act performed was with intention or knowledge, the same is compounded by the consent of the person who had suffer from the harm.
Concept of Express and Implied Consent
Before diving into the topic, we shall clear our concept of Impress and Implied Consent.
The concept of Express and Implied Consent only arises if the consent is been given by a person. Under the criminal law the term Express consent means something which is in written or oral and is of valid in nature whereas, under Implied Consent is difficult to prove because implied consent occurs through the action performed or conducted by a person, implied consent is generally time limited e.g., subscription of any membership, the time period starts on the day when you get your subscription.
Consent under Section 375
The word consent refers to an act done by a person with a free state of mind. According to Section 375 of Indian Penal Code it is define as, voluntary communication or we can state it as unequivocal voluntary agreement when a woman by communication whether verbal or non-verbal, shows her willingness to commit a performance.
Expectation to Section 375
In the case of material rape, it is an exception to give consent as it doesn’t cover under crime, as long as the woman is above the 18 years of age.
By the above-mentioned definition it is clear that consent must be “unequivocal” “voluntary” “willingness” and “communication”. Therefore, we can say that this definition has given birth to various questions which is of vital importance like, if we talk about section 90 of IPC which does not defines consent but lays down what is not consent? and does above quoted word fall under the section 90 or not? Whereas it regulates the operations section 87,88,89 of the IPC.
Under section 90 of IPC, it is clear that, consent cannot be said as consent as it is intended by any section, if it is be given by person under, inter alia “misconception of fact”, hence if the consent is given under misconception, then it will not be termed as real consent and won’t be taken under fact of law.
According to the dictionary meaning the term “unequivocal” means to “of unmistakable meaning: free from any ambiguity”.
Now as we have a clear understanding of both the word, we can say that woman’s consent to participate in sexual intercourse/act cannot be said real, if a man falsely says her and thereby makes her to believe that, he is influential, intellectual or rich person or her lover her and so on and forth we can say that because of all such classification woman’s agreement to participation into sexual intercourse/act is done under wrongful belief and hence, not unequivocal. And hence we can presume that these an be one of the reasons, that men in all such situations/cases will be held guilty of rape.
Consent can fall under Rape if it falls under the following categories:
I. If the act is performed by her will,
II. If the act is performed without her consent,
III. If it’s done with her consent, whether her consent obtained from her was forcefully or any person in whom she is interested in fear of death or of hurt,
IV. If the consent is given by her and it is in her knowledge that he is not her husband and her consent is given and she believes herself to be lawfully married to another man.
V. If she gives her consent, when at the time of giving such consent, the person should not be unsoundness of mind or should not be under the influence of intoxication or authorized by him personally or through any medium or any intoxication substance, or she does not understand the nature of the act and consequences of that to which she gives consent too.
VI. If with or without her consent, when the person is under the age of sixteen years of age. Example; we can say that penetration is sufficient to constitute the sexual intercourse which may lead to offence of rape.
Amendment to section 375 of Indian Penal Code
As from the above reading the definition of consent is clear, which states that voluntary communication that is achieve from the women for certain sexual intercourse.
Exception to this section is material rape under which giving consent is not counted as a crime under the Indian Penal Code, until and unless the women is above the age of 18 years.
The amendment of this section was done under Criminal Law Act 2013 (Amendment), this amendment is also popularly known as Nirbhaya Act under which bill was in Parliament to amens section 375. One of the main reasons for the amendment was to remove the ambiguity that exist under earlier law and to lay down strict punishment if specific performance of the sexual act is been committed. During the amendment the legislation got enlarged by adding up the definition of penetration of penis into vagina, anus or mouth, urethra or any object or any part of the body introduced to the women and has been aforesaid to her body parts (or it is been performed by another person) which led to sexual assault. Hence, use of mouth or touching of private parts of women were also take into account and was stated as sexual assault.
Consent under Chapter VI
As discuss above the exact meaning of the word consent is not define under the Code, but we can get the general meaning out of it. According to Kenny in Outline under Criminal Law, consent should be given with free will by a sane and sober person who is able to understand the meaning of it or with reasonable opinion.
Section 87 to 89 and section 92 of the Indian Penal Code provide for the exception of the word consent.
Section 87 lays down, any act which is performed with intent or knowledge that it may cause death or grievous hurt which is done with the consent will not be constituted as an offence provided that the person giving the consent (whether implied or expressed) is above the age of 18 years and has/have suffered the harm.
Section 88 states for any action which is been performed with good faith for a person’s benefit with his consent (expresses or implied) then such performance of the act will not be construed as an offence if the act causes or is likely to cause harm to person.
Observation of Section 87 and Section 88
By the above explanation we can state the fact that consent cannot be justified death. But under section 87 and 88 differ on the fact that, section 88 states that performance of the act due to which death is accepted whereas under section 87 we can say that any harm than of death or grievous hurt is accepted.
Section 89 lay down that any act performed by a person and which is likely to harm or which can cause harm to a child who is under the age of 12 years or is an insane person, done with the consent (express or implied) of the guardian or with good faith or for the benefit of the child or for insane person then it won’t be constituted as offence.
Section 92 lay down that any act performed which is done without the consent provided then the performance of that specific act is of good faith or for the benefit of the person and the person for whom such act is been done is either unable to understand or incapable to give consent or it is not possible for the guardian to take the consent od such person in question.
Observation of Section 89 and section 92
Therefore, we can say that both the section holds the same provisos.
Now as the entire concept of consent has been cleared by the above reading with the provided section, we can go with exact expiations of how consent can treat as a defence.
As we know country like India here every second rape is been committed some are been reported and some are not; on the other hand, is been left off as the perspective of the Indian Society does not allow the victim to be highlighted and the conservative mindset also hold a strong value for not filing the case.
In India if the rape is been committed the punishment under certain cases may lead to death punishment.
Under Section 493/496 of Indian Penal Code
In the case of Sri Parag Buragohain v Sri Jintu Buragohain
It was stated the prosecution in this case have launched a case by filing under section 493/496 of IPC. The allegation was on accused Sri Jintu Buragohian that has married her daughter on 22.22.2017 by entering into a false deed.
Complainant also stated the fact that accused (Sri Jintu Buragohian) has induced his daughter by believing the fact that his daughter is legally married to him and in the performance of the marriage he orders to undergo sexual intercourse with her.
Thereafter, they were residing together uncertainly on 06.11.2018 the accuse left her without informing her. Accused has deliberately entered into marriage with her daughter only to perform sexual intercourse with her.
The accuse was enlarged on bail. After hearing both the parties the material on record was taken into account, formal charges were framed under section 493/496 of IPC.
As the evidential value hold the entire case, if we talk about this specific case section 496 of IPC does not attract the accuse as sufficient evidence has not been led by the complainant married the accused which was performed under a fraudulent abuse of the marriage ceremony.
Therefore, in the light of the above discussion the accuse party Sri Jintu Buragohain under section 493/496 IPC lay down a liberty forthwith, as the prosecution failed to prove guilty of the accused beyond the reasonable doubt.
Sukaroo Kaviraj V The Empress 1887
In this case Mr. Sukaroo Kaviraj a qualified doctor has operated his patient who was suffering from internal piles by operating the vital part with an ordinary knife.
The said patient died after the operation due to copious bleeding. After the finding the cause for his death was rash and negligent act performed. The court held that Mr. Sukaroo liable for his death because he did not act in good faith.
Rao Harnarain Singh Sheoji Singh Vs State 1957
In the following case the question of consent and submission were raised.
The accuse was an advocate and additional Public Prosecutor, who has forced his tenant to satisfy their carnal lust of Rao Harnarain and his friends by giving his wife. Thereafter, the entire night the men have ravished her and which lead to her wife death almost immediately.
It was stated by accused in the plead that deceased husband bad consented for this and his wife have also come with her own will, therefore they should not be held liable.
The honorable court held that all consent involves submission but on the other hand all submission is not consent. It was held that the deceased made her submission before the said accused for her husband as he was threatened with severe consequences. Here in the held all the parties liable for committing and rape and murder.
From the above illustration, we have gained the knowledge about the concept of consent and how does consent help as a defence mechanism. However, under certain circumstances we can say that consent and submission both play its individual part and whether its implied or expressed consent both have its individual perspective. Section 87, 88, 89,92 goes in hand to hand under chapter VI of Indian Penal Code. Whereas section 357 of the code expresses the meaning of the Consent which goes in handy with section 90. Depending on the facts and circumstances of the cases the criminal liability can be taken into account specifically speaking under the concept of the consent.