Bharatiya Nyaya Sanhita (BNS) · General Principles of Criminal Liability
Consent Sections 25 to 30 BNS
Consent as a General Exception: Sections 25 to 30 BNS
Consent is one of the oldest ideas in the criminal law. A surgeon who cuts a patient's chest with the patient's consent commits no offence. Two friends who wrestle for sport and one is injured cause no crime. But consent has limits. It cannot make lawful an act that is independently criminal, such as duelling to the death. It cannot be given by persons unable to understand what they are consenting to. And it cannot be extracted by fear or misconception. Sections 25 to 30 of the Bharatiya Nyaya Sanhita, 2023, gather these principles into a coherent framework. This module walks through each section, the Latin maxim volenti non fit injuria, and the leading Indian and English cases.
1. Meaning and Concept
Consent in criminal law
Consent is the voluntary agreement of a person, competent to give it, to conduct that would otherwise be an offence against him. The criminal law recognises consent as a defence because the individual has, in most cases, the sovereign right to control what happens to his own body and property. Where he agrees to conduct that would otherwise be a wrong against him, the moral basis for treating the actor as a criminal falls away. Consent has, however, its limits. The law does not permit the individual to consent to conduct that gravely harms him, or to conduct that is independently prohibited for reasons that go beyond the individual's own interests.
The maxim: volenti non fit injuria
Volenti non fit injuria.
No injury is done to one who consents. The Latin maxim, drawn from Roman law and formalised by the medieval canonists, is the doctrinal shorthand for the effect of consent. Where the injured person has agreed to the conduct, the law will not treat it as an injury. The maxim is used in both tort and criminal law, and Sections 25 to 30 of the BNS give it statutory shape in the criminal context.
The two dimensions: freely given and effective
The two conditions of valid consent
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2. Statutory Framework: Sections 25 to 30
The six sections at a glance
BNS Section | Notes |
Act not intended and not known to be likely to cause death or grievous hurt, consented to by a person above eighteen. | Formerly Section 87 IPC. Illustration: friendly fencing, sports. |
Act not intended to cause death, done in good faith for the benefit of the person consenting. | Formerly Section 88 IPC. Illustration: surgery. |
Act done in good faith for the benefit of a child under twelve or a person of unsound mind, by or with the consent of the guardian. | Formerly Section 89 IPC. Illustration: surgery on a child. |
Consent given under fear, misconception, unsoundness of mind, intoxication, or by a person under twelve is not consent. | Formerly Section 90 IPC. Filter on all consent-based sections. |
The exceptions in Sections 25, 26 and 27 do not extend to acts which are offences independently of any harm to the person consenting. | Formerly Section 91 IPC. Illustration: duelling to the death. |
Act done in good faith for the benefit of a person without that person's consent, in circumstances of emergency where consent cannot be obtained. | Formerly Section 92 IPC. Illustration: emergency surgery on an unconscious accident victim. |
The two clusters: valid consent, and its limits
The framework has two clusters. Sections 25, 26 and 27 identify the circumstances in which consent is a valid defence. Sections 28, 29 and 30 mark the outer limits of the doctrine, either by defining what is not consent (Section 28), or by excluding acts that are independently criminal (Section 29), or by permitting acts in emergency where consent cannot be obtained (Section 30).
3. Section 25 BNS: Acts Consented to by an Adult
Text and ingredients
Section 25 BNS Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm. |
Four ingredients:
- The act was not intended to cause death or grievous hurt.
- The doer did not know the act was likely to cause death or grievous hurt.
- The person consenting is above eighteen years of age.
- The consent is genuine, whether express or implied, either to the harm or to the risk of the harm.
The eighteen year threshold
The section applies only where the consenting person is above eighteen years. Below eighteen, the section does not apply directly. Special provisions on medical treatment of minors and rape of minors have their own consent frameworks. The 2013 amendments to the IPC raised the age of consent for sexual acts to eighteen, and the BNS retains this position.
The death and grievous hurt exclusion
The section does not extend to conduct intended, or known to be likely, to cause death or grievous hurt. This is why duelling to the death, mutual killing pacts, and certain extreme forms of consensual violence remain criminal. The two consenting adults cannot, by their agreement, place their conduct beyond the reach of the criminal law. Illustration (a) to the section: two friends who fence with foils in play; if one is injured, no offence. Illustration (b): a wrestling match, resulting in injury, no offence. But if death results, Section 25 does not save the survivor.
4. Section 26 BNS: Acts for the Benefit of the Consenting Person
Text and ingredients
Section 26 BNS Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. |
This section is the operating provision for medical practice. Ingredients:
- The act was not intended to cause death.
- The act was done for the benefit of the person consenting.
- The act was done in good faith, that is, with due care and attention (Section 2(11) BNS).
- The person consented to the harm, or to the risk of the harm, expressly or by implication.
Good faith and the person's benefit
The good faith requirement filters out reckless or negligent acts. A surgeon who operates without proper training or without informed consent cannot claim the protection of Section 26. The benefit requirement excludes acts that were not intended to benefit the person consenting. A person who consents to a beating for the amusement of a bystander is not consenting to a benefit, and Section 26 does not save the assailant.
Application in medical practice
Section 26 protects the medical profession as a matter of routine. A surgeon who performs a painful operation with the patient's consent, knowing that death may result but intending the patient's benefit, is protected. The illustration to the section captures this: A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs the operation on Z, with Z's consent. A has committed no offence.
5. Section 27 BNS: Acts for a Child or Insane Person
Text and ingredients
Section 27 BNS Nothing which is done in good faith for the benefit of a person under twelve years of age, or of unsound mind, by or by consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause or be known by the doer to be likely to cause to that person: provided that this exception shall not extend to the intentional causing of death, or attempt to cause death; the doing of anything likely to cause death for any purpose other than the preventing of death or grievous hurt or the curing of any grievous disease or infirmity; the voluntary causing of grievous hurt, or the attempt to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt or the curing of any grievous disease or infirmity; the abetment of any offence to the committing of which the exception would not extend. |
Section 27 is the counterpart of Section 26 for children under twelve and persons of unsound mind. Consent is given by the guardian on behalf of the person. The good faith and benefit requirements apply as in Section 26. The provisos exclude the intentional causing of death, and the causing of grievous hurt except for preventing death or grievous hurt or curing a grievous disease or infirmity.
The guardian's consent
The guardian may be a parent, a legal guardian, or a person having lawful charge of the child or insane person. The consent must be given in the ward's interest, and must be for a purpose that a reasonable guardian would consent to. A parent's consent to a surgery to save a child's life, to routine vaccination, or to routine schooling discipline is within the section. A parent's consent to a religious ritual involving grievous hurt is not.
6. Section 28 BNS: What is Not Consent
Section 28 BNS A consent is not such a consent as is intended by any section of this Sanhita:
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Consent under fear of injury
Fear of injury negates consent. This is the operating principle in rape prosecutions where the woman submits to intercourse under threat of harm. Consent given under fear is no consent at all. The prosecution need not prove that the fear was reasonable, only that it was real. The person doing the act must know or have reason to believe that the consent was given in consequence of such fear.
Consent under misconception of fact
A misconception of fact vitiates consent. If A obtains B's consent by misrepresenting a material fact, and B would not have consented had the true fact been known, the consent is not consent within the meaning of the section. The person doing the act must know or have reason to believe that the consent was so obtained. The classical illustrations include obtaining a woman's consent by the false representation of marriage, and obtaining a patient's consent by falsely representing the nature of a proposed treatment.
Consent by an unsound mind or an intoxicated person
A person who, from unsoundness of mind or intoxication, is unable to understand the nature and consequences of the conduct to which he is consenting, cannot give effective consent. This tracks the general principle that consent requires understanding. Consent to a surgery by a patient too heavily sedated to understand is not consent. Consent to sexual intercourse by a woman too intoxicated to understand the act is not consent.
Consent of a person under twelve
Unless the contrary appears from the context, consent by a person under twelve years is not consent. The default rule protects children from being deemed to consent to conduct they cannot understand. In some contexts (routine and non harmful matters), the contrary may appear from the context, and the section admits this qualification.
7. Section 29 BNS: Independent Offences
Section 29 BNS The exceptions in Sections 25, 26 and 27 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given. |
Consent as no defence to independent offences
Some acts are offences not because of the harm they cause to any individual, but because they are prohibited independently. Duelling is the classical example. Even where both parties consent, a duel is an offence against public order. Similarly, the abetment of suicide is an offence independent of the deceased's consent to die. Consent cannot make lawful an act that is criminal for reasons that transcend the individual.
The duelling illustration
The illustration to the section is direct. A and B agree to fight a duel. Both consent to the risk of death. A kills B in the duel. A cannot invoke consent as a defence. The killing is an offence against public order, and the consent of B is immaterial. Modern extensions include the abetment of suicide, certain forms of extreme consensual violence, and any act specifically prohibited by statute regardless of consent.
8. Section 30 BNS: Good Faith Without Consent
The emergency exception
Section 30 BNS Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit. |
Section 30 covers the case where consent cannot be obtained. The classical example is an emergency medical operation on an unconscious accident victim. The surgeon acts in the patient's best interest, in good faith, without the patient's consent, because the patient is incapable of giving it and there is no guardian available in time. The section protects the surgeon.
Illustrations
- A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation is immediately performed. There is not time to apply to the child's guardian. A performs the operation in good faith for the benefit of the child. A commits no offence.
- A is carried off by a tiger. Z fires at the tiger knowing it likely he may kill A. If Z's act is in good faith for A's benefit and there is no time to obtain A's consent, Z commits no offence, even if the shot kills A.
9. The Doctrine of Volenti Non Fit Injuria and its Limits
Volenti non fit injuria has its origin in Roman law and appears throughout the modern law of torts and crimes. In tort, it operates as a complete defence to a claim in negligence: a person who has voluntarily assumed a risk cannot complain of it. In criminal law, its role is more constrained, because the criminal law protects not only individual interests but also public ones. Sections 25 to 30 of the BNS give effect to the maxim, but Section 29 marks its limit.
Three limits on the doctrine
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10. Judicial Elaboration
R. v. Coney: prize fighting
📖 R. v. Coney, (1882) 8 QBD 534 The English court held that a prize fight, though consented to by both fighters, was an unlawful assault. Consent could not make it lawful, because it was a breach of the peace independently of the injury to the fighters. Rule: consent is no defence where the act is prohibited by law independent of any harm to the person consenting. |
R. v. Brown: sado masochism
📖 R. v. Brown, [1994] 1 AC 212 A group of men consenting to sado masochistic acts were convicted of assault occasioning actual bodily harm and unlawful wounding. The House of Lords held that consent was not a defence. The public interest, in preventing gratuitous violence, overrode the private consent of the participants. Rule: consent to serious bodily harm for its own sake is not a defence, except where the harm is incidental to a lawful activity such as surgery or sport. |
Tunda v. Rex: wrestling
📖 Tunda v. Rex, AIR 1950 All 95 Two friends, both wrestlers, engaged in a friendly wrestling match. During the match, one of them fell and died of a head injury. The Allahabad High Court held that the surviving wrestler was protected by Sections 87 and 80 IPC (now Sections 25 and 18 BNS). The wrestling match was a lawful sport. Both had consented to the risks of ordinary wrestling. Rule: consent to the ordinary risks of a lawful sport, coupled with proper care and caution, brings the case within Section 25 BNS. |
Poonai Fattemah v. Emperor: snake charmer
📖 Poonai Fattemah v. Emperor, (1869) 12 WR (Cri) 7 The accused, a snake charmer, induced the deceased to be bitten by a snake, on the pretence that he had the power to protect against snake bite by his mantras. The deceased was bitten and died. The court held that Section 87 IPC (now Section 25 BNS) did not apply. The consent was obtained by misrepresentation. It was not effective consent within Section 90 IPC (now Section 28 BNS). Rule: consent obtained by misconception of fact known to the accused is not consent. |
Bishambhar v. Roomal
📖 Bishambhar v. Roomal, AIR 1951 All 500 The plaintiff had assaulted a woman. The panchayat, convened at the plaintiff's request, imposed a punishment involving blackening of the face and being paraded. The plaintiff later sued the panchayat members for defamation. The Allahabad High Court held that the plaintiff had consented to the panchayat's jurisdiction and its likely punishment, and Section 87 IPC (now Section 25 BNS) applied. Rule: consent to the risks of a chosen forum applies even to unpleasant consequences. |
Sukaroo Kobiraj v. Empress
📖 Sukaroo Kobiraj v. Empress, (1887) ILR 14 Cal 566 The accused, a traditional healer, performed an operation for internal piles using unusual methods. The patient consented but died. The Calcutta High Court held that the healer could not invoke Section 88 IPC (now Section 26 BNS) because he had not acted with due care and attention. The good faith requirement was not satisfied. Rule: good faith requires the actor to have the competence necessary for the act. Careless or incompetent conduct is not good faith. |
11. Consolidated Landmark Judgments
- R. v. Coney, (1882) 8 QBD 534. Prize fight consented to. Consent no defence to an act independently unlawful.
- R. v. Brown, [1994] 1 AC 212. Sado masochistic acts consented to. Consent no defence to serious bodily harm for its own sake.
- R. v. Wilson, [1997] QB 47. Consensual body marking by a husband on his wife. Consent recognised as a defence in this context.
- Tunda v. Rex, AIR 1950 All 95. Friendly wrestling match. Consent plus proper care and caution. Sections 25 and 18 BNS applied.
- Poonai Fattemah v. Emperor, (1869) 12 WR (Cri) 7. Snake charmer's misrepresentation. Consent obtained by misconception is not consent.
- Bishambhar v. Roomal, AIR 1951 All 500. Consent to panchayat's jurisdiction. Section 87 IPC (now Section 25 BNS) applied.
- Sukaroo Kobiraj v. Empress, (1887) ILR 14 Cal 566. Traditional healer's operation without competence. Good faith requires due care and attention.
- Queen Empress v. Poonai Fattemah, (1869) 12 WR (Cri) 7. Discussed above.
- Ram Kumar v. State of Punjab, AIR 1970 SC 1358. Consent under fear vitiates consent in a sexual offence case.
- Deelip Singh v. State of Bihar, (2005) 1 SCC 88. Consent obtained by a false promise of marriage. Misconception of fact under Section 90 IPC (now Section 28 BNS).
- State of UP v. Chhoteylal, (2011) 2 SCC 550. Consent to sexual intercourse obtained by fraud is no consent.
Frequently Asked Questions
What is consent as a defence under the BNS?
Consent is recognised as a General Exception under Sections 25 to 30 of the Bharatiya Nyaya Sanhita, 2023. A person who consents to conduct that would otherwise be an offence against him cannot ordinarily complain of it. But consent has limits: it does not extend to acts causing death or grievous hurt (except in specified circumstances), and it does not extend to acts that are independently criminal.
What is volenti non fit injuria?
Volenti non fit injuria is a Latin maxim meaning no injury is done to one who consents. It is the doctrinal shorthand for the effect of consent in both tort and criminal law. Sections 25 to 30 BNS give it statutory shape in the criminal context.
What is the age of consent under Section 25 BNS?
Section 25 BNS applies only where the consenting person is above eighteen years of age. The 2013 amendments to the IPC raised the age of consent for sexual acts to eighteen, and the BNS retains this position. Consent by a person under twelve is generally not consent under Section 28(c) BNS.
What is not consent under Section 28 BNS?
Section 28 BNS lists four circumstances where apparent consent is not consent: (a) consent given under fear of injury or under a misconception of fact, where the doer knows or has reason to believe this; (b) consent by a person who cannot understand due to unsoundness of mind or intoxication; and (c) unless the context shows otherwise, consent by a person under twelve years.
Can consent be a defence to murder?
No. Section 25 BNS does not apply to acts intended or known to cause death or grievous hurt. Section 29 BNS excludes acts that are independently criminal, such as duelling. Consent to be killed does not exempt the killer from liability for murder. Section 105 BNS on culpable homicide with consent (formerly the fifth exception to Section 300 IPC) reduces murder to culpable homicide, not to no offence.
What is Section 30 BNS?
Section 30 BNS covers acts done in good faith for the benefit of a person without that person's consent, in circumstances where consent cannot be obtained. The classical example is emergency medical treatment of an unconscious accident victim. The surgeon acts for the patient's benefit, in good faith, and is protected even without the patient's consent.
Related Topics on The Legal Bridge
For a fuller picture, read these companion notes on adjacent doctrines and provisions:
- General Exceptions under the BNS: the wider chapter (Sections 14 to 44) in which consent sits.
- Accident as a General Exception: a related excusable defence under Section 18 BNS.
- Doli Incapax and the Age of Criminal Responsibility: another limit on the capacity to consent under Sections 20 and 21 BNS.
- Mens Rea in Criminal Law: the mental element that consent affects.
Quick Summary Sections 25 to 30 of the Bharatiya Nyaya Sanhita, 2023 (formerly Sections 87 to 92 IPC), codify consent as a General Exception. Section 25 protects acts consented to by a person above eighteen, not intended and not known to be likely to cause death or grievous hurt. Section 26 protects acts done in good faith for the benefit of the person consenting. Section 28 defines what is not consent (fear, misconception, unsoundness of mind, minors under twelve). Section 29 excludes acts that are offences independent of any harm to the person consenting. |