What is IPC Section 90?
IPC Section 90 falls within Chapter IV of the Indian Penal Code ("General Exceptions"), specifically within the group of provisions dealing with consent as a factor affecting criminal liability (Sections 87 to 92). Sections 87, 88, and 89 lay down circumstances in which acts done with a person's consent are excused from criminal liability (such as acts not intended to cause death done for the person's benefit and in good faith). Section 90, in turn, clarifies that not every purported "consent" counts for these purposes — certain kinds of tainted or defective consent are treated as no consent at all.
The IPC does not define "consent" in positive terms anywhere in the Code; instead, Section 90 approaches the concept negatively, by specifying circumstances in which what might appear to be consent will not be recognized as valid consent under the law. This negative definitional approach has proven highly influential in judicial interpretation, particularly in cases involving allegations of rape based on false promises of marriage, where courts examine whether the woman's consent to sexual intercourse was vitiated by a misconception of fact regarding the man's intention to marry her.
Important Update: IPC to BNS Transition
With effect from 1 July 2024, the Indian Penal Code has been replaced by the Bharatiya Nyaya Sanhita (BNS), 2023 for offences committed on or after that date. Section 90 IPC now corresponds to Section 28 of the BNS, which retains the identical three-category framework for invalid consent, without substantive change. Cases arising before 1 July 2024 continue to be governed by IPC 90; cases after that date are governed by the corresponding BNS provision.
Legal Provision — Text of Section 90 IPC
This section must be read alongside Section 87 (act not intended and not known to be likely to cause death or grievous hurt, done by consent), Section 88 (act not intended to cause death, done by consent in good faith for person's benefit), Section 89 (act done in good faith for benefit of child or insane person, by or with consent of guardian), and Section 375 (definition of rape, particularly the exceptions dealing with consent).
The Three Categories of Invalid Consent Under Section 90
Consent Under Fear of Injury or Misconception of Fact
Where consent is given because of fear of injury, or because of a misconception about the facts, and the other party knew or had reason to believe this was the case, the "consent" is not valid.
Consent by a Person Unable to Understand the Act
Where the person consenting is, due to unsoundness of mind or intoxication, unable to understand the nature and consequences of the act to which they are consenting, their purported consent is not valid.
Consent by a Child Under 12 Years of Age
Unless the specific context indicates otherwise, consent given by a person under 12 years of age is not recognized as valid consent.
Key Elements of the "Fear or Misconception" Category
Consent given under fear of injury, or under a misconception of fact
This addresses the state of mind of the person giving consent — from the victim's perspective, analogous to coercion (fear of injury) and mistake of fact (misconception).
The other party's knowledge or reason to believe
Crucially, the person doing the act must have known, or had reason to believe, that the consent was given because of such fear or misconception — this is assessed from the accused's perspective.
Both elements must be cumulatively satisfied
Courts have clarified that both the victim's fear/misconception and the accused's knowledge/reasonable belief regarding it must independently be established for consent to be invalidated under this limb.
Where This Provision Matters in Practice
Section 90's influence extends across numerous areas of criminal law. In the context of sexual offences, courts have extensively applied the "misconception of fact" limb to cases involving allegations that a man obtained a woman's consent to sexual intercourse through a false promise of marriage — where the promise was made in bad faith from the outset (as opposed to a genuine intention that later could not be fulfilled), the resulting consent is treated as vitiated under Section 90, potentially supporting a charge of rape. Similarly, cases involving impersonation (such as consent obtained by someone posing as a medical professional conducting an "examination") fall within this misconception-of-fact framework.
Beyond sexual offences, Section 90 is also relevant to cheating cases (where consent to part with property is obtained through deception), and to offences against the human body more broadly, where the defence of consent under Sections 87-89 depends on the underlying consent being valid under Section 90's framework. The provision thus functions as a crucial gatekeeper across the Code, ensuring that only genuine, informed, and voluntary consent can serve as a legal defence or a basis for excluding criminal liability.
Important / Landmark Cases on Section 90
Interpretation of "Misconception of Fact" in Rape Cases
The Supreme Court has repeatedly examined the application of Section 90 to cases involving allegations of rape based on false promise of marriage, clarifying that a mere breach of promise (where the intention to marry was genuine at the time but circumstances later changed) does not amount to a misconception of fact vitiating consent — only a promise made in bad faith from the very beginning, with no real intention of fulfilling it, would satisfy this standard.
Consent Obtained Through Impersonation
Courts have applied the "misconception of fact" framework to situations where a woman consented to what she believed was a legitimate medical examination or procedure, but which was, in reality, a pretext for a different, non-consensual act — such consent, obtained through deception about the true nature of the act, has been held invalid under Section 90.