Consent for sex under illegal surrogacy agreement not valid: Bombay High Court

The Bombay High Court recently held that a woman’s alleged consent for sex under an illegal surrogacy agreement, clothed as a live-in relationship agreement, is not valid in law [Amit Rama Zende v The State of Maharashtra]..Since commercial surrogacy agreements are illegal in India, the Court held that any consent flowing from such an arrangement is vitiated and cannot be recognized under Section 90 of the Indian Penal Code (consent under fear or misconception)."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,” the Court said.A Bench of Justices Vibha Kankanwadi and Sanjay Deshmukh made the observation while refusing to quash the criminal proceedings in a rape case against a man from Osmanabad.The Court said that no sane married woman would enter into such an arrangement and it appeared that the illegal agreement was executed to exploit the complainant's poor financial condition. “This agreement is against public policy, rather it amounts to agreement of surrogacy which is not legalized in India. It is hard 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. It cannot be stated that it is a live-in relationship agreement that was executed by understanding the consequences in law," the Bench added. .According to the first information report (FIR) lodged on June 26, the complainant-woman was working as a maid at the home of the accused man in Osmanabad. She was sexually assaulted and physically abused over several months. She alleged that she was forcibly confined, threatened and assaulted when she tried to leave. Medical reports recorded nine injuries on her person and her version was corroborated by her mother and a family friend who helped her reach a hospital.The man filed an application seeking to quash the proceedings, claiming that the relationship was consensual and governed by a written agreement involving himself, the woman, her mother and his wife. .As per the agreement, she would live with him for a year, bear his child, and give up all rights over the child in exchange for money. He also relied on an affidavit filed by the complainant during his bail hearing, where she described the FIR as a misunderstanding.The Court rejected this defence, finding that the agreement amounted to a surrogate arrangement made for consideration, which is illegal under Indian law. .The Court also took note of the complainant’s socio-economic vulnerability, stating,“The prosecutrix appears to be an illiterate rustic lady. She states that she 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 i.e. with the mother due to quarrels between herself and husband. This shows that she was in need of money and under the pretext of giving money, it appears that such illegal document has been got executed from her.”The Court held that there was prima facie material fpr the matter to proceed to trial.Hence, it dismissed the man's application and allowed the prosecution to continue..Advocate MA Tandale appeared for the accused-man.Additional Public Prosecutor SA Gaikwad appeared for the State.Advocate Akash D Gade appeared for the complainant-woman..[Read Order]