Any broken promise (like a promise to marry) that leads to consent automatically makes the consent invalid.

Courts have clarified that only a promise that was false and dishonest from the very beginning (used to deceive) can invalidate consent — a promise made sincerely but broken later does not count as a 'misconception of fact.'

Consent from a child under 12 is always automatically invalid, no exceptions.

The section itself says 'unless the contrary appears from context,' meaning courts can consider circumstances, though this exception is narrowly applied and doesn't override specific age-based protections elsewhere in law (like POCSO).

This section requires the victim to prove fear or misconception; the accused's knowledge doesn't matter.

The law also requires that the person obtaining consent knew or had reason to believe it was given due to fear or misconception — it's not enough that the consent was merely flawed from the giver's side.

Bharatiya Nyaya Sanhita, 2023

Section 28

Consent known to be given under fear or misconception

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§

Why this exists

This provision continues the logic of Section 90 of the old Indian Penal Code, 1860. Criminal law often makes an act illegal unless the affected person consented (for example, touching, taking property, or medical procedures). Courts and lawmakers recognized that a 'yes' extracted through fear, deception, mental incapacity, intoxication, or from a very young child isn't a meaningful moral or legal choice. This section protects vulnerable people from having their apparent agreement misused as a legal shield by wrongdoers.

How courts read it

Under the identical language of IPC Section 90, courts held that 'misconception of fact' must relate to the very nature of the act or a fact directly connected to it — not vague promises or unrelated lies. For instance, the Supreme Court and various High Courts have distinguished between a false promise to marry that induces sexual consent (which can vitiate consent if the promise was never genuine) versus a broken promise made in good faith (which does not). Courts have also required proof that the accused actually knew or had reason to believe the consent was tainted by fear or misconception — mere ignorance on the accused's part can be a valid defence. These interpretive principles carry over to Section 28 of the BNS since the text is substantially the same.

Common misconceptions

Myth: Any broken promise (like a promise to marry) that leads to consent automatically makes the consent invalid.
Fact: Courts have clarified that only a promise that was false and dishonest from the very beginning (used to deceive) can invalidate consent — a promise made sincerely but broken later does not count as a 'misconception of fact.'
Myth: Consent from a child under 12 is always automatically invalid, no exceptions.
Fact: The section itself says 'unless the contrary appears from context,' meaning courts can consider circumstances, though this exception is narrowly applied and doesn't override specific age-based protections elsewhere in law (like POCSO).
Myth: This section requires the victim to prove fear or misconception; the accused's knowledge doesn't matter.
Fact: The law also requires that the person obtaining consent knew or had reason to believe it was given due to fear or misconception — it's not enough that the consent was merely flawed from the giver's side.