CLAT 2021 Legal Set 5 (5 Questions with Solutions)

The Indian Penal Code, 1860 does not define 'consent' in positive terms, but…

CLAT 2021 · Legal Reasoning · 5 questions

The Indian Penal Code, 1860 does not define 'consent' in positive terms, but what cannot be regarded as 'consent' under the Code is explained by Section 90. Section 90 reads as follows: "90. Consent known to be given under fear or misconception - A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception..." Consent given firstly under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set-out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology. Section 90 cannot, however, be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code, 1860. The normal connotation and concept of 'consent' is not intended to be excluded. Various decisions of the High Court and of Supreme Court have not merely gone by the language of Section 90, but travelled a wider field, guided by the etymology of the word 'consent'.

Question 1

'A'. a man, promises 'B' a woman that he will marry her if she has sexual intercourse with him. 'B' agrees, but after having sexual intercourse, 'A' flees and never contacts 'B' again. In the given situation which statement is true?

A. Consent for sexual intercourse was given under misconception of fact.
B. Consent for sexual intercourse was given under fear of injury.
C. Consent for sexual intercourse was given under undue influence.
D. Consent for sexual intercourse was given without any misconception or fear of injury.

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Question 2

According to the given passage, a person is said to 'consent' to the doing of an act if

A. A person agrees to do an act without misconception of fact or fear of injury.
B. The person to whom agreement is signified has no reason to believe that the agreement is being given under misconception of fact or fear of injury.
C. A person agrees to do an act without misconception of fact or fear of injury and the person to whom agreement is signified has no reason to believe that the agreement is being given under misconception of fact or fear of injury.
D. A person agrees to do an act without having regard to the consequences of fear of injury or misconception of fact.

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Question 3

According to your understanding of the given passage, why is negative terminology used to explain the meaning of consent under Section 90?

A. To emphasise on the factors that vitiate consent.
B. To emphasise on the point of view of victim or the person who gives consent.
C. To emphasise on the point of view of the person who receives consent.
D. To emphasise on the non-exhaustive scope of definition of consent.

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Question 4

'X' a man, promises 'Y', a woman that he will marry her if she has sexual intercourse with him. 'Y' agrees and they have sexual intercourse. Thereafter, 'X' assures 'Y' that they will get married, but X's family is opposed to the marriage even after X's attempts to convince them. Therefore, 'X' refuses to marry 'Y'. In the given situation, which statement is true?

A. Consent for sexual intercourse was received knowing that the consent is given under misconception of fact.
B. Consent for sexual intercourse was given without any misconception of fact or fear of injury.
C. Consent for sexual intercourse was received knowing that the consent is given under fear of injury.
D. Consent for sexual intercourse was given under misconception of fact and received misconception of fact.

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Question 5

According to the given passage, which of the following statements is not true?

A. Misconception of fact vitiates consent.
B. Fear of injury vitiates consent.
C. Misconception of fact obviates the necessity of consent.
D. Fear of injury is analogous to coercion.

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