IPC Section 91 and BNS Section 29: Acts That Remain Offences Despite Consent
Section 91 of the Indian Penal Code, 1860 explained that consent-based general exceptions do not protect acts that constitute offences independently of the harm caused to the consenting person. The corresponding provision under the Bharatiya Nyaya Sanhita, 2023 is Section 29.
What did Section 91 IPC provide?
Heading: Exclusion of acts which are offences independently of harm caused.
The exceptions in sections 87, 88 and 89 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.
Meaning: IPC Sections 87, 88 and 89 dealt with specified acts done with consent or for a person's benefit. Section 91 limited those protections: consent to suffer harm does not legalise conduct that is separately prohibited by criminal law.
Statutory illustration: causing miscarriage
The illustration to Section 91 IPC concerned causing miscarriage, except where caused in good faith for the purpose of saving the woman's life. It explained that the act may be an offence independently of harm to the woman, so her consent or a guardian's consent does not, by itself, justify the act.
Important qualification: This historical illustration must be read alongside applicable legislation, including the Medical Termination of Pregnancy Act, 1971, as amended, and its conditions for lawful medical termination. The illustration must not be understood as prohibiting every consented medical termination of pregnancy.
Current law: Section 29 of Bharatiya Nyaya Sanhita, 2023
Section 29 BNS - Exclusion of acts which are offences independently of harm caused:
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.
Section 29 retains the essential principle of former Section 91 IPC but refers to BNS Sections 25, 26 and 27 instead of IPC Sections 87, 88 and 89. Its statutory illustration also concerns miscarriage and the limits of consent.
Definitions of the connected consent provisions
| Earlier IPC | Current BNS | Subject |
|---|---|---|
| Section 87 | Section 25 | Acts done with consent, not intended or known to be likely to cause death or grievous hurt, subject to statutory conditions. |
| Section 88 | Section 26 | Acts not intended to cause death, done in good faith for a person's benefit with consent. |
| Section 89 | Section 27 | Acts done in good faith for the benefit of a child or person of unsound mind by, or with the consent of, a guardian, subject to restrictions. |
| Section 91 | Section 29 | Exclusion of independently criminal acts from the above consent-based exceptions. |
How the rule operates
First, identify the act and the offence alleged. Next, determine whether a consent-based general exception could otherwise apply. If the conduct constitutes an offence independently of the harm to the person consenting, Section 29 prevents reliance on Sections 25 to 27 merely to excuse that offence. Any separate statutory permission, defence or exemption must be considered on its own terms.
Section 29 is a rule limiting general exceptions, not a separate offence carrying its own punishment. Liability and punishment depend on the substantive offence and all applicable legal requirements.
Does IPC Section 91 still matter?
Yes. Although the IPC was repealed from 1 July 2024, its provisions may remain relevant to earlier conduct and pending matters under the savings clause in Section 358 BNS and other applicable legal principles. For acts governed by the new law, consult Section 29 BNS.