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Report No. 84

IV. Reality of Consent: Section 90

2.7. The concept of free consent-section 375, 3rd clause and section 90.-

The most important question of substantive law relates, then, to the concept of consent in the context of the offence of rape. Consent must be real. Often, it is vitiated by circumstances that take away the freedom of choice. Taking note of this aspect, the third clause of section 375 (definition of "rape") provides that sexual intercourse with a woman amounts to rape if it is "with her consent, when her consent has been obtained by putting her in fear of death or of hurt". The vitiating factor here is duress or coercion, but only one specific aspect of it is dealt with. In contrast, the matter is dealt with more comprehensively in section 90, which is too often overlooked by courts. The section reads as under:-

"90. Consent known to be given under fear or misconception.- A consent is not such a consent as is 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."1

1. See also section 7, Indian Penal Code.



Rape and Allied Offences - Some Questions of Substantive Law, Procedire and Evidence Back




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