The concept of consent is a cornerstone of criminal jurisprudence, especially in cases involving sexual offences. The Indian Penal Code (IPC) and its jurisprudence place immense importance on free, informed, and voluntary consent. However, complexities arise when alleged consent is given under coercion, deception, or within the framework of an illegal contract, such as surrogacy agreements not recognised by law. A recent judgment of the Bombay High Court in Amit Rama Zende v. State of Maharashtra & Anr. (2025:BHC-AUG:19710-DB) brings this question to the forefront—Can a woman’s “consent” in an illegal surrogacy arrangement be considered valid in the eyes of the law?
This article explores the legal nuances of consent within such arrangements and the public policy implications, with an in-depth analysis of the High Court’s ruling.
Factual Matrix
In the case at hand, the applicant, Amit Rama Zende, sought quashing of FIR and charges under Sections 376(2)(n), 307, 324, 323, 504, 506 read with Section 34 IPC. The FIR was lodged by a woman (prosecutrix) who was allegedly assaulted, raped, and confined by the applicant.
The applicant contended that the physical relationship between him and the prosecutrix was consensual and based on a written agreement. This purported agreement involved the prosecutrix, her mother, and the applicant’s wife, where the woman was to enter into a live-in relationship for a year and bear a child, who would then be handed over to the applicant and his wife—essentially functioning as a surrogacy contract.
Nature of the Agreement
The agreement, albeit informal, provided that:
- The prosecutrix would cohabit with the applicant from 17.01.2022 to 17.01.2023.
- She would give birth to a child, who would belong to the applicant and his wife.
- The prosecutrix would receive a “consideration amount.”
- She would have no claim over the child.
The High Court termed this agreement “against public policy” and tantamount to a surrogacy arrangement not legalised in India, thereby negating any validity such consent might have conveyed.
Issues Raised
- Is consent under such an illegal agreement valid under Indian criminal law?
- Does the presence of a “written agreement” render the act non-rape under Section 375 IPC?
- What role does Section 90 IPC play in vitiating such consent?
- Can such agreements survive the test of public policy and legality?
Consent and Section 375 IPC
Section 375 IPC defines rape and provides several scenarios where consent is considered invalid. The key components for valid consent include:
- It must be free from coercion or misconception of fact.
- It must involve active and informed participation.
In the Zende case, the High Court noted that, despite a written agreement, the prosecutrix was a rustic, illiterate woman, likely unaware of the legal consequences of her actions. The Court emphasised that consent obtained under coercion, deception, or socio-economic vulnerability is not true consent.
Section 90 IPC: Consent Under Misconception
Section 90 IPC states:
“A consent is not such a consent as is intended by any section of this Code if the consent is given… under a misconception of fact… and if the person doing the act knows or has reason to believe that the consent was given in consequence of such misconception.”
Applying this, the Court ruled that the prosecutrix’s consent was vitiated by the illegality and economic duress implicit in the so-called agreement. Her economic need and the deceitful nature of the arrangement made her susceptible to manipulation.
Legal Position on Surrogacy in India
The Surrogacy (Regulation) Act, 2021 governs surrogacy in India. It allows only altruistic surrogacy by a close relative, disallowing commercial surrogacy, which includes monetary compensation beyond medical expenses.
The agreement in this case clearly amounted to commercial surrogacy, involving a payment and a transfer of child custody in return. The High Court rightly held that this violates public policy and is therefore void ab initio under Section 23 of the Indian Contract Act, 1872.
Key Observations by the Court
The Court noted that the entire arrangement was not only exploitative but also legally impermissible.
- It was “hard to believe” that a married woman (the applicant’s wife) would willingly agree to such an arrangement, hinting at possible coercion and fabrication.
- The prosecutrix’s injuries and the corroboration by her mother and a friend provided prima facie evidence of coercion and abuse.
- The so-called agreement was an attempt to camouflage rape and assault as a contractual obligation, which the Court outright rejected.
Applicability of Precedents
The applicant cited Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra (AIR 2019 SC 327), where the Supreme Court drew a distinction between consensual sex and rape on false promise of marriage.
Another cited case was Ajeet Singh v. State of U.P. (2024 ALL SCR (Cri.) 325), where a consensual relationship culminated in marriage and the FIR was quashed.
However, the Bombay High Court clarified that the facts in Zende’s case were materially different. The agreement was not merely based on false promises but on an illegal object—a commercial surrogacy contract, which fails on both legal and moral grounds.
Key Highlights of the Decision:
The Division Bench of the Bombay High Court (Aurangabad Bench) comprising Smt. Vibha Kankanwadi & Sanjay A. Deshmukh, JJ., made the following key observations:
“…….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.
The prosecutrix appears to be an illiterate rustic lady. Therefore, as aforesaid, 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. The application therefore stands rejected.”
Implications for Consent in Illegal Relationships
This case sets an important precedent that:
- Consent under an illegal contract is not valid in criminal law.
- Socio-economic coercion and illiteracy are factors to be weighed when assessing consent.
- Courts must look beyond written agreements to examine the reality of power dynamics and legal enforceability.
Broader Legal and Ethical Considerations
The decision in this case opens the door for broader legal debates:
- Should there be harsher scrutiny of contractual agreements involving bodily autonomy, especially by vulnerable individuals?
- Can consent be freely given by a person in extreme poverty or illiteracy?
- Where does the line lie between consensual live-in arrangements and exploitative surrogacy or trafficking?
In reaffirming the primacy of consent and its lawful foundation, the Court emphasised that exploitation dressed in legal jargon cannot escape judicial scrutiny.
Conclusion
Consent, to be legally valid, must be:
- Informed,
- Voluntary, and
- Free from coercion or deception.
When consent is claimed under an arrangement that is illegal, exploitative, and contrary to public policy, such as an unregulated surrogacy contract, it cannot and should not be recognised by law. The Bombay High Court rightly held in Amit Rama Zende v. State of Maharashtra that consent obtained through such means is not valid under Section 90 IPC and does not excuse the alleged sexual offences under Section 376 IPC.
This ruling is a pivotal reaffirmation of the principles of bodily autonomy, gender justice, and legal sanctity—ensuring that the law does not become an instrument of oppression disguised as agreement.
Important Link
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