Consent As Defence In Sexual Offences
CONSENT AS A DEFENCE IN SEXUAL OFFENCES (INDIAN LAW)
1. Meaning of Consent in Law
Under Section 375 IPC, rape is defined and one of the key elements is absence of consent.
After the Criminal Law (Amendment) Act, 2013, Explanation 2 to Section 375 IPC defines consent as:
“An unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.”
Thus, consent must be:
Voluntary
Conscious
Informed
Given freely
Given for the specific act
2. Consent vs Submission
Consent is active willingness, while submission may arise due to:
Fear
Pressure
Authority
Coercion
Submission is not consent.
WHEN CONSENT IS NOT A VALID DEFENCE
As per Section 90 IPC, consent is invalid if it is given:
Under fear of injury
Under misconception of fact
By a person of unsound mind
By a minor (below 18 years – statutory rape)
When the accused knows the consent is not free
IMPORTANT CASE LAWS (DETAILED)
1. Rao Harnarain Singh v. State (1958)
Facts:
The accused argued that the woman had consented to the sexual act.
Issue:
What is the true meaning of consent?
Judgment:
The court held:
Consent must be an act of reason
It involves deliberation after understanding the act
Mere silence or lack of resistance does not mean consent
Principle Established:
Consent requires intelligence, understanding, and free will.
This case laid the foundation for interpreting consent in sexual offences.
2. State of H.P. v. Mango Ram (2000)
Facts:
The victim did not physically resist the act.
Issue:
Does lack of physical resistance imply consent?
Judgment:
The Supreme Court held:
A woman is not required to physically resist to prove absence of consent
Fear, shock, or psychological pressure may prevent resistance
Principle:
Absence of resistance ≠ consent
This judgment protects victims from unfair assumptions.
3. Uday v. State of Karnataka (2003)
Facts:
The accused had sexual relations with the victim after promising to marry her but later refused.
Issue:
Does consent obtained on a promise to marry amount to rape?
Judgment:
The Court held:
If the promise was false from the beginning, consent is invalid
If the promise was genuine but marriage failed later, it is not rape
Principle:
Consent obtained by a false promise of marriage, made in bad faith, is not valid consent.
4. Deelip Singh @ Dilip Kumar v. State of Bihar (2005)
Facts:
Sexual relations were established on assurance of marriage.
Issue:
Whether such consent falls under “misconception of fact” (Section 90 IPC)?
Judgment:
The Supreme Court clarified:
Consent is invalid if:
The promise to marry was never intended to be fulfilled
The accused knew the promise was false
Principle:
Consent based on deception amounts to no consent in law.
This case refined the concept of misconception of fact.
5. Kaini Rajan v. State of Kerala (2013)
Facts:
The accused claimed consensual sexual relations.
Issue:
What distinguishes consent from submission?
Judgment:
The Court held:
Consent requires voluntary participation
Submission induced by fear or authority is not consent
Principle:
Consent must be unequivocal and voluntary, not a passive submission.
6. Pramod Suryabhan Pawar v. State of Maharashtra (2019)
Facts:
The accused was charged with rape based on a promise of marriage.
Issue:
When does a promise of marriage vitiate consent?
Judgment:
The Supreme Court laid down two conditions:
The promise must be false at the time it was made
The consent must be directly based on that false promise
Principle:
Not every breach of promise is rape; only fraudulent promises invalidate consent.
This case provides clear legal tests.
7. Maheshwar Tigga v. State of Jharkhand (2020)
Facts:
A long-term relationship with sexual relations; marriage did not occur.
Issue:
Whether consensual relationship turning sour amounts to rape?
Judgment:
The Court held:
Mature consensual relationships do not automatically become rape
Criminal law cannot be used to punish failed relationships
Principle:
Consent given knowingly in a relationship is valid unless deception is proven.
SUMMARY OF LEGAL POSITION
| Situation | Is Consent Valid? |
|---|---|
| Consent under fear | ❌ No |
| Consent by minor | ❌ No |
| Consent by false promise (bad faith) | ❌ No |
| Consent by mature, informed adult | ✅ Yes |
| Silence or no resistance | ❌ Not consent |
CONCLUSION
Consent is a crucial defence in sexual offences, but only when it is:
Free
Informed
Voluntary
Without deception
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