Section 88 IPC sanctions the infliction of any harm if it is for the benefit of the person to whom it is caused. If a person gives his free and intelligent consent to take the risk so speculated or the risk so occurred out of the act for which the consent was given the person with whom, or with the help of whom the act is being committed will not be liable for its consequences.
However, to invoke s 88 good faith is essential on the part of the accused. In an English case, Queen v Emperor. AIR 1949, the accused F was charged for rape. The prosecutrix a girl of 19 was suffering from frequent fits. She was taken by her mother to the accused F who professed to render medical cure for monetary consideration. F took the daughter and mother to a suspicious place where many question were asked by the mother and then he replied, “it was nature’s string wanted breaking” and asked if he might break it. The mother replied that she did not know what he meant, but that she did not mind if it would do her daughter any good. On this F said to the mother, “You stay, I’ll try”. Eventually the girl was taken to an adjoining room where the she was laid on the floor, her clothes were removed, and the accused F committed sexual intercourse on her. The accused was convicted for rape. It was urged that there was consent on the part of the girl’s mother, who was being guardian of the prosecutrix was capable enough to give consent in good faith, and therefore no rape is being committed. When the girl and the accused went in the room alone, it is clearly found in the case that the only thing contemplated either by the girl or her mother was the operation which had been advised; sexual connection was never thought of either of them. And after she was in room alone with the prisoner what transpired was that the girl made feeble resistance, believing that she was being treated medically, and what was taking place was surgical operation. There was complete lack of bona fide on the part of accused. So based on mela fide intention of the accused, the accused F was convicted of rape.
In another case, where a medical man had connection with a girl of 14 years of age, under the presence that he was thereby treating her medically for the complaint for which he was attending her, and she made no resistance, owing solely to the bona fide belief that such was the case, this was held to be certainly an assault, and, it was suggested a rape.