Justice Vibha Kankanwadi and Justice Sanjay Deshmukh, Bombay High Court
Consent Under Illegal Surrogacy-Like Agreement Not Valid In Law, No Grounds To Quash Rape FIR: Bombay High Court
|The accused claimed the victim agreed to a paid live-in agreement and childbirth without rights to the child.
The Bombay High Court refused to quash a rape FIR filed against a man who had claimed that the sexual relationship with the victim was consensual under a so-called "live-in agreement."
The case involved an agreement allegedly made between the accused and the victim, who had joined his household as a domestic worker. He argued that the woman had voluntarily agreed to live with him in a live-in relationship for one year and to give birth to his child in exchange for money, with no claim over the child thereafter.
A Division Bench of Justice Vibha Kankanwadi and Justice Sanjay Deshmukh noted, “In that agreement, it is stated that the prosecutrix would stay with the applicant from January 17, 2022 to January 17, 2023 in the form of live-in relationship and then it is stated that if there would be son or daughter born to the prosecutrix, the custody of the same would be given to the applicant and it is stated that some amount has been given. This agreement is against public policy, rather it amounts to agreement of surrogacy which is not legalised in India."
Advocate M. A. Tandale appeared for the petitioner, and Advocate S. A. Gaikwad appeared for the Respondents.
The bench further expressed doubt that any sane, married woman would voluntarily allow her husband to enter into such an arrangement, implying that his wife was unlikely to have agreed to such terms. The Court also emphasized the socio-economic background of the victim, an illiterate, rural woman who had been estranged from her husband for three years due to marital disputes. She already had two children from her marriage and appeared to be in financial distress at the time.
The Court added, "It cannot be stated that it is a live-in relationship agreement that was executed by understanding the consequences in law. Prima facie we are of the opinion that such consent under an illegal document cannot be a consent under Section 90 of Indian Penal Code. Under such circumstance, the affidavit that was got executed from the prosecutrix will have to be then got explained at the time of trial."
The Court held, "When the surrogacy in such form is prohibited i.e. rather soliciting the surrogacy by making the payment of amount is against the public policy, it was not a free consent. Hence, no case is made out for exercise of powers under Section 482 of the Code of Criminal Procedure."
Additionally, the Court referred to medical evidence that supported the victim’s allegations, including the presence of physical injuries indicating that she had been subjected to forced sexual acts and physical assault, particularly when she attempted to leave his house.
The bench determined that the agreement could not serve as a defense to the rape allegation and that the FIR disclosed a prima facie case. Consequently, the High Court declined to quash the FIR, allowing the criminal proceedings to continue.
Cause Title: Amit Rama Zende v. The State of Maharashtra & Anr., [2025:BHC-AUG:19710-DB]
Appearance:
Petitioner: Advocate M. A. Tandale
Respondents: Advocates S. A. Gaikwad, Akash D. Gade