Live-In Agreement With Man To Give Birth For Consideration Akin To Surrogacy, No Free Consent: Bombay High Court Refuses To Quash Rape Case

An alleged consent given in an agreement to 'live' with a man for a year and give birth to his child for some consideration, is not a free consent as it is a form of surrogacy, which is banned in India, held the Bombay High Court while refusing to quash rape FIR against a man. 

A division bench of Justices Vibha Kankanwadi and Sanjay Deshmukh rejected the argument of the applicant - Amit Rama Zende, who claimed that he had entered into an agreement with the victim in a question, who had joined as a house help at his place.

Zende contended that as per the agreement, the victim agreed to live in a 'live-in relationship' with him and that it was further agreed that she would give birth to a child of the applicant and claim no right on it and instead accept the consideration amount and leave.

"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," the judges observed in the order passed on July 28.

The bench found it difficult to believe that such agreement can be entered into by the wife of the applicant, whereby she was in a way parting with her husband. "No sane married lady would do it in such way," the bench remarked. 

The judges further noted the fact that the prosecutrix was an illiterate rustic lady and was married about 11 years prior to the FIR and she had one son and one daughter from her husband, but since last three years prior to the FIR, she was living separately due to quarrels between herself and husband. 

This, the judges pointed out, indicated that the victim was in need of money and under the pretext of giving money, it appears that such illegal document has been got executed from her.

"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 bench held. 

Further, the judges added, "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."

Besides this, the judges also relied on the medical evidence which reflected presence of injuries on the person of the victim, which substantiated the allegation that the applicant forcibly had sexual relations with her on several occasions and when she wanted to leave his house, she was assaulted. 

With these observations, the bench refused to quash the FIR lodged against the applicant. 

Appearance:

Advocate MA Tandale appeared for the Applicant.

Additional Public Prosecutor SA Gaikwad represented the State. 

Advocate Akash Gade was appointed to represent the Victim. 

Case Title: Amit Rama Zende vs State of Maharashtra (Criminal Application 3237 of 2023)

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