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Rape Law in Transition, Part 3: Consent and Will

28 September 2026 · 10 min read

This is Part 3 of nine of Rape Law in Transition, a study of section 376 of the Indian Penal Code, sections 63, 64 and 69 of the Bharatiya Nyaya Sanhita, and the trial of sexual offences from complaint to appeal. One part is published each day from 27 September to 5 October 2026.

IV. Consent and Will

The first two descriptions in section 375 ask different questions. “Against her will” asks whether the act was done in the face of her opposition. “Without her consent” asks whether she made a free and informed choice to agree to it. A woman may be overborne without resisting, and she may submit without consenting. The law treats neither as consent.

Two limbs, two questions

The Supreme Court drew the distinction in State of U.P. v. Chhoteylal.1 “Against her will”, the Court said, ordinarily means that the act was done despite her resistance and opposition. “Without her consent” connotes the absence of an act of reason accompanied by deliberation. Consent procured by intimidation, force, fraud or undue influence is no consent at all. Every consent involves submission, but mere submission does not involve consent. The prosecutrix in that case had remained with the accused for some time, and the Court held that throughout it she had been under constant fear, with no free act of the mind. Chhoteylal drew on State of Himachal Pradesh v. Mango Ram, which it described as a decision of three judges.2 Mango Ram had held that submission of the body under fear or terror cannot be construed as a consensual sexual act. Consent, it said, requires voluntary participation after the exercise of intelligence. That intelligence must rest on knowledge of the significance and moral quality of the act, and on a free choice between resistance and assent.

Deelip Singh v. State of Bihar adopted an older phrase of the Punjab High Court: “every consent involves a submission but the converse does not follow”.3 Where the woman lacks the capacity to consent, the question does not arise at all. A woman with an intellectual disability cannot give legally valid consent, and her helpless resignation is not consent.4

It is submitted that the choice between the two limbs should be made deliberately, both in the charge-sheet and in argument. Where the woman resisted, the first limb fits her case. Where she froze, was coerced or was deceived, it is the second, and the reasoning of Chhoteylal and Mango Ram carries her case.

The defence, for its part, should hold the prosecution to the limb it has chosen. A case pleaded as forcible rape against resistance cannot, once the evidence of resistance fails, be quietly converted into a case of consent vitiated by deceit. The two theories call for different proof, and they give the accused different notice of what he must meet.

Express and implied consent

Consent may be express or implied, as Explanation 2 contemplates in its reference to “gestures or any form of verbal or non-verbal communication”. Conduct can therefore prove consent. But the Explanation imposes two limits: the consent must be unequivocal, and it must relate to the specific sexual act. The Supreme Court has described consent under section 375 as an active and reasoned deliberation, requiring an understanding of the act and its consequences.5 It is submitted that three consequences follow.

First, implied consent must rest on positive conduct. Initiating contact, arranging the meeting, checking in together, and affectionate exchanges before and after the act may all show it. Mere passivity never can, for the proviso to Explanation 2 forbids treating non-resistance alone as consent.

Secondly, consent does not travel. Consent to one act, or on one occasion, does not extend to another act or a later occasion.

Thirdly, consent may be withdrawn. Because consent attaches to the specific act, a woman who withdraws it has, from that moment, ceased to consent. No decision of the Supreme Court squarely addressing withdrawal during the act was found in preparing this essay; the proposition rests on the text of the Explanation itself.

When consent is vitiated

Section 90 of the Penal Code, reproduced as section 28 of the Nyaya Sanhita, identifies three situations in which apparent consent is not consent: where it is given under fear of injury or under a misconception of fact, and the person doing the act knows or has reason to believe that it was so given; where it is given by a person who, through unsoundness of mind or intoxication, cannot understand its nature and consequence; and where it is given by a child under twelve.

Misconception of fact is where the false-promise cases have always lived, and Part V examines them. Impersonation of a husband, and incapacity, have their own clauses in section 375.

Reading consent from circumstances

Consent is rarely proved by direct evidence. The court reads it from circumstances, and the same circumstance usually admits of two readings.

Take first the absence of injury. The Supreme Court has warned that treating the absence of injury as a sign of consent is a stereotype, and one that courts must not voice.6 It has held that an intact hymen, or the absence of injury, does not belie the prosecutrix.7 Yet the absence of injury, together with other infirmities, has contributed to acquittals where the prosecution alleged a violent struggle.8

A woman who passes through busy places with the accused and raises no alarm may have been paralysed by fear, as the Court found in Chhoteylal. Or she may have been accompanying him willingly, as it found in Paramjit Singh Bedi v. State of Punjab.9

Continued contact after the event is equally ambiguous. The prosecution explains it as trauma, dependence or fear, and the defence as the ordinary conduct of a continuing relationship. In Pankaj Singh v. State of Haryana the Court weighed against the prosecution the fact that the parties had exchanged WhatsApp messages some three to four hundred times between the incident and the complaint.10

The lesson for both sides is that no single circumstance decides the question. The answer lies in how the circumstances fit together, and in whether the woman’s account of them holds steady from the first report to the witness box.

The presumption of absence of consent

Section 114A of the Evidence Act, now section 120 of the Sakshya Adhiniyam, is the prosecution’s most powerful instrument. It is also narrower than it is often taken to be. It operates only in prosecutions under the aggravated clauses of section 376(2) of the Penal Code or section 64(2) of the Nyaya Sanhita. In such a prosecution, where sexual intercourse by the accused is proved and the woman states in evidence that she did not consent, the court shall presume that she did not.

The Supreme Court has confined the presumption in two ways. First, it depends on the charge actually framed. In Pankaj Singh no charge under any clause of section 376(2) had been framed, and the Court held that neither the prosecution nor the victim could invoke the presumption at the stage of appeal. The ordinary burden therefore applied.11 Second, the presumption arises only once intercourse by the accused has been proved, and it is extremely restricted in its application. Even where it applies, the testimony of the prosecutrix must still be scrutinised.12

In gang rape, by contrast, the presumption operates with full force. A defence suggestion of a prior relationship, unsupported by evidence, will not rebut it.13

It is submitted that in relationship cases the prosecution’s gateway to the presumption is the aggravated clause for rape committed repeatedly on the same woman: section 376(2)(n) of the Penal Code, or section 64(2)(m) of the Nyaya Sanhita. The defence should therefore contest that clause at the stage of charge. If only a single act is disclosed, the charge falls to section 376(1) or section 64(1), and the presumption falls with it. The prosecution, for its part, should plead the dates and particulars of every act on which it relies.

Character and sexual history

Two provisions shut out the victim’s character and sexual history. Section 53A of the Evidence Act, now section 48 of the Sakshya Adhiniyam, makes evidence of her character, or of her previous sexual experience with any person, irrelevant where consent is in issue. It is irrelevant both to whether she consented and to the quality of any consent. The proviso to section 146, now the proviso to section 149, forbids adducing such evidence, or putting questions in cross-examination about her general immoral character or previous sexual experience, in order to prove consent.

The Supreme Court has described a woman’s sexual history as wholly immaterial to whether she was raped. It has also rejected, as wrong, the assumption that a sexually active woman cannot be raped.14

These rules sit uneasily with the false-promise cases, and the tension must be handled with care. The statute speaks of previous sexual experience “with any person”, which includes the accused. Yet in a false-promise prosecution, the relationship between the parties is the prosecution’s own case: the promise was made within it, and the intercourse is said to have been procured by it.

It is submitted that the relationship may be examined to establish its nature, its duration and the circumstances of the promise, because the charge puts those matters in issue. But it may never be used to suggest that, because she consented before, she consented on the occasion charged. And no question may be put about her relations with anyone else. Counsel on either side should draw that line expressly and object whenever it is crossed.

The series

Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.

Footnotes

  1. State of U.P. v. Chhoteylal, (2011) 2 SCC 550 (Aftab Alam and R.M. Lodha JJ), paras 13, 15, 16, 17 and 23. ↩

  2. State of Himachal Pradesh v. Mango Ram, (2000) 7 SCC 224 (no paragraph numbers on Indian Kanoon). ↩

  3. Deelip Singh @ Dilip Kumar v. State of Bihar, (2005) 1 SCC 88, decided on 3 November 2004 (no paragraph numbers on Indian Kanoon), adopting Rao Harnarain Singh Sheoji Singh v. State, AIR 1958 P&H 123. ↩

  4. Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590 (no paragraph numbers on Indian Kanoon). ↩

  5. Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 (Dr D.Y. Chandrachud and Indira Banerjee JJ), paras 9–14. ↩

  6. Aparna Bhat v. State of Madhya Pradesh, AIR 2021 SC 1492, decided on 18 March 2021 (A.M. Khanwilkar and S. Ravindra Bhat JJ), para 45. ↩

  7. Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635, para 5. ↩

  8. Rai Sandeep @ Deepu v. State (NCT of Delhi), (2012) 8 SCC 21 (Swatanter Kumar and F.M. Ibrahim Kalifulla JJ), para 12. ↩

  9. Paramjit Singh Bedi v. State of Punjab, 2026 INSC 1054, decided on 25 September 2026 (Ujjal Bhuyan and Atul S. Chandurkar JJ), para 25. ↩

  10. Pankaj Singh v. State of Haryana, 2024 INSC 254, decided on 21 March 2024 (Abhay S. Oka and Ujjal Bhuyan JJ), para 14. ↩

  11. Pankaj Singh v. State of Haryana, 2024 INSC 254, paras 9–11. ↩

  12. Raja v. State of Karnataka, (2016) 10 SCC 506 (Pinaki Chandra Ghose and Amitava Roy JJ), para 24. ↩

  13. Raju @ Umakant v. State of Madhya Pradesh, 2025 INSC 615, decided on 1 May 2025 (Sanjay Karol and K.V. Viswanathan JJ), para 25 (read from Indian Kanoon’s in-document fragments). ↩

  14. State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, Criminal Appeal No. 1441 of 2022, decided on 31 October 2022 (Dr D.Y. Chandrachud and Hima Kohli JJ), paras 62 and 63; see also Lillu @ Rajesh v. State of Haryana, (2013) 14 SCC 643, para 9. ↩

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