Bharatiya Nyaya Sanhita, 2023 · Chapter III: General Exceptions
Section 28: Consent known to be given under fear or misconception
In plain words
This section says when consent does not count as valid consent anywhere in the Sanhita.
- Consent given out of fear of injury, or because of a mistake of fact, is not valid if the other person knows or has reason to believe this.
- Consent from someone who cannot understand what they are agreeing to, because of unsoundness of mind or intoxication, is not valid.
- Consent from a child under twelve years of age is not valid, unless the context shows otherwise.
A simplified explanation, prepared with AI assistance from the official text below and checked automatically against it for numbers and cross-references. The official text is the law and prevails over this summary. Not legal advice.
Read the in-depth explanation, with key Supreme Court rulings ↓
Official text
A consent is not such a consent as is intended by any section of this Sanhita,—.
(a) 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; or.
(b) if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or.
(c) unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
Corresponding sections were matched by comparing the wording of both official texts, and for the IPC and BNS, also against a published correspondence table. Wording, punishments and structure often changed, so read both sections before relying on the match.
Source: India Code (indiacode.gov.in), the consolidated text published by the Legislative Department, Government of India. Text as updated on India Code on 25 August 2026. Words in square brackets [ ] were inserted or substituted by later amending Acts, and *** marks words omitted by an amendment. The amendment footnotes are not reproduced here. Official text on India Code.
Understanding this section
Section 28 carries forward section 90 of the IPC: consent is not valid if given under fear of injury or misconception of fact (known to the doer), by a person unable to understand because of unsoundness of mind or intoxication, or by a child under twelve.
Key points
- The section applies to consent anywhere in the Sanhita.
- A false promise to marry, made with no intention of keeping it and directly bearing on the decision, vitiates consent; a genuine promise later broken does not.
- Sexual intercourse by deceitful means or a false promise to marry is now also a separate offence under section 69.
Key Supreme Court rulings
Deepak Gulati v. State of Haryana 2013 INSC 349
Decided under section 90 of the IPC. A mere breach of promise is distinct from a false promise; consent is vitiated only if the accused never intended to marry from the start.
Pramod Suryabhan Pawar v. State of Maharashtra 2019 INSC 939
Decided under the IPC. The promise must have been false and given in bad faith, and of immediate relevance to the decision to engage in the act.
Common mistakes
- Charging rape for every failed relationship after a promise to marry.
Read with: Section 63 BNS, Section 69 BNS, Section 90 IPC
Prepared with AI assistance as a study aid. Every ruling listed was checked against the Supreme Court's own judgments on this site, and quoted words appear in those judgments; linked names open the full judgment. Read the judgments themselves before relying on them. Not legal advice.
Supreme Court judgments citing the section 28
No Supreme Court judgment in our database cites this section yet.