Section 375, 376, 390, 85 and 90 of IPC

Consent of Drunk Woman For Sex Invalid. Every Yes is not Yes.

In the case of rape, intoxication cannot be an excuse. If a girl is intoxicated, it means mentally she is not capable to give a free and conscious consent. In a case of rape, when a woman says “No” for sexual intercourse, it means she is not willing; similarly when she says “Yes”, it should be free and conscious “Yes". Not every “Yes” is covered under the valid consent. Under section 375 of the Indian Penal Code, in the definition of “rape” the words used are “against her will” and “without her consent”. The term “without her consent” has a wider meaning and covers a broader area of her wish to have sexual intercourse. If a woman is under intoxication/influence of liquor or any drug, then even though she gives consent, it is not a consent. On the other hand, act of rape committed under influence of drug or liquor is not covered under the exceptions under the Indian Penal Code and that argument is not available to the accused. While reading Section 375 of the Indian Penal Code, one has to refer to definition of consent under section 390 of the Indian Penal Code wherein it is specifically mentioned that consent given when a woman is intoxicated is not a consent. Similarly, along with section 90, it is necessary to refer to section 85 of the Indian Penal Code to understand that under intoxication if rape is committed, it is not an excuse for a man.