The Aurangabad Bench of the Bombay High Court, comprising Justice Vibha Kankanwadi and Justice Sanjay A. Deshmukh, has refused to quash rape and assault proceedings against a man who allegedly coerced a woman into a non-consensual live-in relationship under the guise of a surrogacy-like agreement. The Court observed that such an agreement, wherein the woman was to conceive and hand over the child to the accused in exchange for money, was contrary to public policy and not a valid basis for claiming consent.
Background
The application was filed by Amit Rama Zende under Section 482 of the Code of Criminal Procedure for quashing Charge-Sheet No. 87 of 2022 pending before the Chief Judicial Magistrate, Osmanabad. The charge-sheet arises from FIR No. 185/2022 registered at Anandnagar Police Station, Osmanabad, for offences under Sections 376(2)(n), 307, 324, 323, 504, and 506 read with Section 34 of the Indian Penal Code.
According to the FIR, the complainant (respondent No. 2), who was working as a maid in the applicant’s household, alleged that she was subjected to repeated sexual assault and physical abuse between January and June 2022. She further claimed that she was not allowed to leave the house and was eventually attacked and strangled when she attempted to resign and seek payment for her services. Medical records confirmed multiple injuries on her person.
Applicant’s Arguments
The applicant’s counsel argued that:
- The FIR was lodged out of misunderstanding and ulterior motives.
- The complainant had voluntarily entered into a live-in relationship agreement for one year.
- Sexual intercourse during this period was consensual and thus did not amount to rape.
- An affidavit filed by the complainant during bail proceedings acknowledged the consensual nature of the relationship.
- Reliance was placed on Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra [AIR 2019 SC 327] and Ajeet Singh v. State of Uttar Pradesh [2024 ALL SCR (Cri.) 325] to argue that consensual relationships do not attract the offence of rape.
Prosecution’s Response
The State and the complainant’s counsel (appointed through legal aid) opposed the application, arguing that:
- The complainant had worked as a maid and was repeatedly assaulted and raped under threat.
- She had no freedom to leave the house and was attacked when she sought to exit the arrangement.
- The so-called agreement was not a live-in relationship in the legal sense but an exploitative arrangement akin to surrogacy in exchange for money, involving the complainant, her mother, and the wife of the applicant.
- Medical records corroborated the physical assault, and the complainant’s mother and her friend supported the allegations.
Court’s Observations
The Court found that:
- The document presented as a live-in agreement effectively amounted to a surrogacy contract, which is not legally sanctioned in India and violates public policy.
- “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,” the Court remarked.
- The complainant, an illiterate and economically vulnerable woman, appeared to have been induced into the agreement due to her financial condition.
- The purported “consent” under such circumstances cannot be considered valid under Section 90 IPC, which excludes consent given under fear or misconception.
- The affidavit filed during the bail hearing and other documents allegedly signed by the complainant and her mother appeared to have been obtained under pressure and required scrutiny during trial.
Referring to the Supreme Court judgment in Dr. Dhruvaram Murlidhar Sonar, the Court reiterated that consent must be real and voluntary. “Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent,” the Court noted.
Decision
Holding that there was prima facie material on record and that the purported agreement could not confer a valid defence, the Court concluded:
“No case is made out for exercise of powers under Section 482 of the Code of Criminal Procedure.”
Accordingly, the application was dismissed.
