Bombay High Court: In a case where live-in relationship agreement has been executed between accused’s wife and the prosecutrix, the Division Bench of Vibha Kankanwadi* and Sanjay A. Deshmukh, JJ. rejected the application filed by the accused, specifying that such an agreement practically amounts to agreement of surrogacy. The Court held that that consent obtained under an agreement that is illegal in the eyes of law cannot be considered valid. It further held that when surrogacy in such a form is prohibited, specifically, soliciting surrogacy through payment, which is against public policy, the consent obtained cannot be considered free consent. Therefore, no case was made out for the exercise of powers under Section 482 of the Code of Criminal Procedure, 1973.
The Court also remarked that it was unimaginable how such an agreement could be entered into by the wife of the accused, as it effectively involved parting with her husband, an act no sane married woman would ordinarily undertake.
Background
A First Information Report was registered by the prosecutrix against the accused, who was charged under Sections 376(2) (n), 307, 324, 323, 504, 506 read with Section 34 of Penal Code, 1860.
The prosecutrix was married for about 11 years and had one son and one daughter from her husband. Since past three years, she started living separately with her mother due to quarrels between herself and the husband. As she was in need of money, she and her mother, ended up signing an agreement with the wife of accused in respect of live-in relationship for a period of one year which mentioned that any child borne out of that relationship would be handed over by the prosecutrix to the accused, for a certain consideration amount.
The prosecutrix stated that until five months prior to the FIR, her services were taken by the accused as maid servant. She also stated that she was treated properly for about a month and, thereafter, the accused started abusing her. He had then assaulted her with stick, but since she needed money, she did not disclose this to anybody. The first such incident occurred four months prior to the FIR when she was mopping the floor in the house of the accused. She alleged that she was taken forcibly to the bedroom and the accused had committed forcible sexual intercourse with her and threatened her. Thereafter, on several occasions, he had forcible sexual intercourse with her by giving threats. She was not even allowed to step out of the house. The last act was stated to be committed on 22-6-2022 and then, when she told theaccused and his family members that she has no intention in staying with them and that they should clear her salary, the accused again assaulted her and tried to strangulate her.
The prosecutrix disclosed everything to her mother, so her mother, took her and admitted to hospital. The medical certificate showed that there was total nine injuries on her person when she was examined. Hence, the FIR was registered.
Thereafter, the accused filed the present application to quash the criminal proceedings against him.
Analysis, Law and Decision
The Court noted that both the accused and the prosecutrix agreed that there was a written agreement between the prosecutrix and the accused. The said agreement stated that the prosecutrix would stay with the accused from 17-1-2022 to 17-1-2023 in the form of live-in relationship and if a son or daughter is born out of such relationship, the custody of the same would be given to the accused. As per the agreement the prosecutrix cannot claim any right over the child born out of the relationship. Therefore, it was held by the Court that the said agreement appears to be an agreement of surrogacy which is not legalized in India.
The Court also pointed out that the documents on record show that the prosecutrix had sustained injuries at the time of her medical examination which makes prima facie evidence against the accused. It was also stated that the live-in relationship agreement seems to have been executed without understanding the consequences in law.
Accordingly, the Court rejected the present application and held that surrogacy in such form is prohibited in India, as consent obtained by soliciting the surrogate by paying money does not amount to free consent under Section 90 of IPC.
[Amit Rama Zende v. State of Maharashtra, Crl. App. No. 3237 of 2023, decided on: 28-7-2025]
*Judgement authored by: Justice Vibha Kankanwadi
Advocates who appeared in this case:
Advocate for the Petitioners- M. A. Tandale, Advocate
Advocate for the Respondents- S. A. Gaikwad, APP; Akash D. Gade, Advocate
Buy Code of Criminal Procedure, 1973 HERE
Buy Penal Code, 1860 HERE
