This section is based on the principle ‘volenti non fit injuria’ which means he who consents suffers no injury. The policy behind this principle is that everyone is the best judge of his own interest, and that no one consents to what he considers injurious to his own interest. The authors of the Code gave the following justification for this provision:
“We conceive the general rule to be, that nothing ought to be an offence by reason of any harm which it may cause to a person of ripe age who, undeceived, has given a free and intelligent consent to suffer that harm or to take the risk of that harm. The restrictions by which the rule is limited affect only cases where human life is concerned…..
“The reason on which the general rule which we have mentioned rests is this, that it is impossible to restrain men of mature age and sound understanding from destroying their own property, their own health, their own comfort, without restraining them from an infinite number of salutary or innocent actions.”
The section says that if there is no intention or knowledge on the part of someone to cause death or grievous hurt, his act does not amount to an offence even though it may cause or be intended by the doer to cause harm to a person who is above eighteen years of age provided the person suffering the harm gives his express or implied consent to suffer that harm; or by reason of any harm which the doer knows to be likely to cause to such person who consents to take the risk of that harm.
It is important to note that the person giving consent must be above eighteen years of age. Also this section does not justify intentional causing of death or grievous hurt, or where the doer knows that death or grievous hurt is likely to result to one giving consent.
It is an absolute and unconditional restriction. Implied consent may be inferred from facts and circumstances of the case, and there cannot be a general rule in this regard. Wrestling, boxing and fencing etc. are such games or sports where implied consent may be presumed provided the rules of the game are being followed. The section has no application where, for instance, wrestlers are wrestling on a hard surface, or boxers are boxing without wearing gloves, or where a prize fight which is prohibited by the law is going on.
In Poonai Fattemah v. Emp., the accused, who professed to be a snake-charmer, induced the deceased to believe that he had the power to protect him from any harm caused by snake bite. The deceased, believing this to be true, allowed himself to be bitten by a snake as a consequence of which he died. The defence of consent was rejected.
In Bishambhar v. Roomal, a self-constituted ‘Panchayat’ was called upon to deliberate upon the matter of an alleged indecent behaviour on the part of the complainant against a Harijan girl. The ‘Panchayat’ decided that the complainant’s face be blackened and he be paraded through the village and be given a shoe-beating. All this was done.
Since the accused members of the ‘Panchayat’ had acted with a view to protect the complainant from more serious consequences as many Harijans had gathered with arms to take revenge and the complainant had given in writing that he would abide by the decision of the ‘Panchayat’, it was held that the action of the accused in enforcing the decision was not an offence.
In Harpal Singh v. State? the Supreme Court held that even though consent of the girl is generally a defence in sex offences, the same is totally irrelevant in case of rape where the age of the victim is less than sixteen years.