The Bombay High Court refused an application to quash a rape FIR where the accused and the prosecutrix had allegedly entered into a live‑in agreement stipulating that she would cohabit with him for one year and give birth to his child in exchange for consideration. The bench, comprising Justices Vibha Kankanwadi and Sanjay Deshmukh, held that such an agreement could not amount to free consent under Section 90 of the Indian Penal Code, since it amounted to surrogacy, which is prohibited in India, and thus void as being contrary to public policy. The applicant, Amit Rama Zende, contended that the prosecutrix had agreed to reside with him from January 17, 2022 to January 17, 2023 and bear his child, renouncing any rights thereto in return for payment.
The High Court observed that the agreement effectively framed a surrogacy arrangement, which is unrecognised and unenforceable under Indian law. The judges remarked that no sane married woman would voluntarily execute such an agreement, and found it implausible that the prosecutrix, described as an illiterate rustic woman married for 11 years with two children, had entered this document with full legal understanding. Instead, they inferred that the transaction appeared to exploit her need for money, and that the affidavit executed by her had to be carefully examined during trial. Consequently, the Court concluded this purported consent was inherently defective and invalid.
In reaching its decision, the Court affirmed that Section 482 of the Code of Criminal Procedure could not be used to quash the FIR, given the prima facie illegality of the scheme under public policy. In addition to the flawed agreement, the bench relied on medical evidence indicating the presence of injuries on the prosecutrix, which corroborated allegations that the applicant had forcibly engaged in sexual relations on multiple occasions and assaulted her when she sought to leave his residence. These factual findings further disqualified any claim of consensual behaviour.
The Court noted that the arrangement’s character as surrogacy rendered it void, and that consent obtained under such circumstances could not be considered legally valid. The bench emphasized that the legal prohibition on commercial or paid surrogacy rendered the agreement itself void ab initio, and the consent purportedly given under it was necessarily tainted. Against this backdrop, the Court held that the FIR could not be quashed and must proceed to trial so that the circumstances could be fully examined on evidentiary record.
Therefore, the petition seeking quashing of the rape FIR was dismissed, with the High Court directing that the matter be allowed to continue through criminal proceedings.
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