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Indian Criminal Law | Updated 28 October 2026

Section 90 IPC and Section 28 BNS: Consent Under Fear or Misconception

Consent is not legally effective for the purposes of the relevant criminal-law provisions when it is obtained through certain forms of fear or factual misconception, or given by someone who cannot understand its nature and consequences. Section 90 of the Indian Penal Code, 1860 (IPC) is now substantially carried forward in Section 28 of the Bharatiya Nyaya Sanhita, 2023 (BNS).

Current-law position: The BNS came into force on 1 July 2024. Section 28 BNS is the corresponding provision for the new legal framework. Section 90 IPC remains important for conduct governed by the former law and for understanding earlier judicial decisions. The applicable provision depends on the date of the alleged conduct and relevant saving provisions.

What did Section 90 IPC provide?

Section 90 IPC, titled Consent known to be given under fear or misconception, specified three circumstances in which consent would not qualify as consent intended by the Code:

Fear or misconception: Consent given under fear of injury or a misconception of fact, where the person doing the act knows or has reason to believe that the consent resulted from that fear or misconception.

Incapacity: Consent given by a person unable, because of unsoundness of mind or intoxication, to understand the nature and consequence of what is being consented to.

Child: Unless the context indicates otherwise, consent given by a person under twelve years of age.

These are the three branches of the original provision, retained in substance. For the historical statutory wording, consult the Government of India text of Section 90 IPC.

Section 28 BNS: The corresponding law

Section 28 of the Bharatiya Nyaya Sanhita, 2023, is titled Consent known to be given under fear or misconception. It provides that consent is not the consent intended by the Sanhita in the following situations:

Clause (a): Consent is given under fear of injury or misconception of fact, and the person doing the act knows or has reason to believe that the consent resulted from it.

Clause (b): Consent is given by a person who, because of unsoundness of mind or intoxication, cannot understand the nature and consequence of the act.

Clause (c): Unless the contrary appears from the context, consent is given by a person under twelve years of age.

Read the official BNS text on India Code and the Ministry of Home Affairs / NCRB chapter text.

Legal meaning and essential conditions

1. Consent under fear of injury

Where fear of injury causes a person to agree, the agreement may be legally ineffective under clause (a). The provision also requires the person doing the act to know, or have reason to believe, that fear caused the consent. Whether those requirements are established depends on the evidence and circumstances.

2. Consent under misconception of fact

A misconception of fact concerns an erroneous belief about a material fact. Not every mistake or unfulfilled assurance automatically invalidates consent. The connection between the misconception and the decision to consent, together with the other person's knowledge or reason to believe, must be examined.

3. Consent affected by mental incapacity or intoxication

The question is whether the person was unable to understand the nature and consequences of the particular act. A diagnosis or the mere consumption of alcohol does not, by itself, settle the statutory test; the person's capacity at the relevant time is material.

4. Consent of a child under twelve

Clause (c) sets out a general rule for persons below twelve, subject to its express contextual qualification. Other legislation may impose stricter or different age-based requirements; the twelve-year threshold here must not be treated as a universal age of consent.

Practical illustrations

Threat: A person agrees to an act only because another person threatens injury. If the statutory conditions are met, the agreement is not valid consent for the relevant exception.

Misrepresentation: A person consents because of a material false representation, and the actor knows the representation induced consent. Whether Section 28 applies requires examination of the facts and the specific offence.

Intoxication: A heavily intoxicated person is unable to understand what an act entails. An apparent agreement may not amount to legally effective consent.

Section 25 BNS (Section 87 IPC): Concerns certain acts done with the consent of persons above eighteen years, where death or grievous hurt is neither intended nor known to be likely. Section 26 BNS (Section 88 IPC): Addresses acts done in good faith for a person's benefit with consent. Section 27 BNS (Section 89 IPC): Concerns certain good-faith acts for a child under twelve or person of unsound mind by, or with the consent of, a lawful guardian. Section 29 BNS: Clarifies that specified consent-based exceptions do not cover acts independently constituting offences.

Section 28 BNS is a general rule about consent; it does not replace the ingredients of a particular offence. Sexual offences, child protection and medical treatment may also be governed by additional provisions and special statutes. Consent alone does not legalise an otherwise independently prohibited act.

Frequently asked questions

Is Section 90 IPC still applicable?

For offences governed by the post-1 July 2024 framework, the corresponding provision is Section 28 BNS. Section 90 IPC remains relevant to historical conduct and earlier case law, subject to the applicable transition and saving rules.

Does every false promise make consent invalid?

No. The court must examine the particular factual misconception, whether it induced consent, and the actor's knowledge or reason to believe. The applicable offence and its elements also matter.

Does intoxication always invalidate consent?

No. Under this provision, the relevant question is whether intoxication prevented understanding of the nature and consequence of the act.

Is the age of consent always twelve years?

No. The under-twelve rule is confined to the context of Section 28(c). Other criminal laws may set different ages or prohibit particular acts involving minors.

Official legal sources

Disclaimer: This article provides general legal information and is not a substitute for advice based on the facts of a particular case.