Live in Relationship and Surrogacy Laws in India

Source: Bombay High Court  

Why in News? 

Recently, Justices Vibha Kankanwadi and Sanjay Deshmukh has held that an agreement to cohabit and bear a child in exchange for consideration amounts to surrogacy, which is against public policy and not a valid defense to quash a rape FIR. 

• The Bombay High Court held this in the matter of Amit Rama Zende v. State of Maharashtra (2025). 

What was the Background of Amit Rama Zende v. State of Maharashtra, (2025) Case? 

• Amit Rama Zende, a 40-year-old agriculturist from Osmanabad, filed a criminal application seeking quashing of proceedings in Charge-sheet No. 87 of 2022 arising from FIR Crime No. 185 of 2022 registered at Anandnagar Police Station for offences under Sections 376(2)(n), 307, 324, 323, 504, 506 read with Section 34 of the Indian Penal Code, 1860 (IPC).  
• The prosecutrix, an illiterate woman from a rural background, was employed as a house help by the applicant approximately five months prior to the registration of the FIR on 26th June 2022. 
• According to the prosecutrix's statement, she was initially treated properly for about one month, after which the applicant began physically and sexually abusing her, with the first incident of alleged rape occurring four months before the FIR when she was cleaning his new house. 
• The prosecutrix alleged that the applicant forcibly took her to the bedroom, committed sexual intercourse against her will while threatening her, and continued such acts on several occasions while preventing her from leaving the house. 
• On 24th June 2022, when the prosecutrix expressed her intention to leave and demanded her salary, the applicant allegedly assaulted her and attempted to strangle her, following which her mother and a friend took her to the hospital where medical examination revealed nine injuries on her person. 
• The applicant contended that the FIR was lodged with ulterior motives and claimed that there existed a written agreement between him, the prosecutrix, her mother, and his own wife for a "live-in relationship" for one year from 17th January 2022 to 17th January 2023. 
• According to the alleged agreement, the prosecutrix would bear a child for the applicant in exchange for consideration money, and custody of any child born would be given to the applicant while the prosecutrix would relinquish all rights over the child. 
• The prosecutrix was a married woman with two children who had been living separately from her husband for three years due to marital disputes and was in financial distress, making her vulnerable to exploitation under the guise of providing monetary assistance. 

What were the Court’s Observations? 

• The Court observed that the purported agreement between the parties was fundamentally against public policy as it essentially amounted to a surrogacy arrangement, which is not legalized in India, and such consent obtained under an illegal document cannot constitute valid consent under Section 90 of the Indian Penal Code. 
• The Court expressed serious doubt about the authenticity of the alleged agreement, noting that it was hard to believe that the applicant's wife would willingly enter into such an arrangement whereby she would be "parting with her husband," as no sane married lady would do so. 
• The Court recognized the vulnerable position of the prosecutrix, observing that she was an illiterate woman from a rural background who was in financial distress after separating from her husband, making her susceptible to exploitation under the pretext of providing monetary assistance. 
• The Court held that the alleged consent in this case could not be considered free consent as defined under Section 90 of the Indian Penal Code, since it was obtained through an illegal document that violated public policy and involved a prohibited surrogacy arrangement. 
• The Court distinguished the legal precedents cited by the applicant's counsel, particularly Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra and Ajeet Singh v. State of Uttar Pradesh, noting that the factual circumstances of those cases were not applicable to the present matter. 
• The Court emphasized that consent under Section 375 of the Indian Penal Code must be voluntary participation after exercise of intelligence based on knowledge of the significance and moral quality of the act, and must be given after fully exercising the choice between resistance and assent. 
• The Court noted that the medical evidence supported the prosecutrix's allegations of physical assault, as the medical examination conducted on 25th June 2022 revealed nine injuries on her person, corroborating her claims against the applicant. 
• The Court concluded that given the illegal nature of the purported agreement, the vulnerable circumstances of the victim, the prima facie evidence against the applicant, and the fact that surrogacy arrangements involving payment are prohibited and against public policy, it would not exercise its extraordinary powers under Section 482 of the Code of Criminal Procedure to quash the proceedings, and the matter required a full trial for proper examination of evidence. 

What is Live in Relationship and Surrogacy Laws in India? 

Live-in Relationships 

• Constitutional and Legal Recognition: 
  • Live-in relationships derive their legal foundation from Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty, and the Supreme Court has consistently held that consenting adults have the fundamental right to cohabit with partners of their choice, making such relationships legally permissible under Indian law. 
• Legal Protection Framework:  
  • The Protection of Women from Domestic Violence Act, 2005 provides comprehensive protection to women in "relationships in the nature of marriage" by granting maintenance rights under Section 125 of the Code of Criminal Procedure, protection against domestic violence, property rights in shared households, and legitimacy to children born from such relationships, while also allowing partners to acquire property rights through demonstrated contribution. 
• Judicial Progress and State Legislation:  
  • Recent Supreme Court judgments including Nandkumar v. State of Kerala (2018) and Shafin Jahan v. Ashokan KN (2018) have emphasized individual autonomy over societal expectations, while Uttarakhand's Uniform Civil Code has mandated registration of live-in relationships and provided specific rights including maintenance for deserted women and legitimacy for children. 
• Challenges for LGBTQIA+ Community:  
  • Despite same-sex cohabitation being legal after the Navtej Singh Johar judgment, LGBTQIA+ couples face significant legal challenges due to heterosexual language in protective legislation, lack of automatic inheritance and next-of-kin recognition, unclear hospital visitation rights, and absence of comprehensive legislative protection despite progressive judicial interpretations. 

Surrogacy Laws  

• Restrictive Legal Framework:  
  • The Surrogacy (Regulation) Act, 2021 establishes a highly restrictive legal framework that permits only altruistic surrogacy for heterosexual married couples meeting specific criteria including minimum five years of marriage, medical certification of infertility, and age restrictions, while completely prohibiting commercial surrogacy and excluding single persons, same-sex couples, live-in couples, and foreign nationals. 
• Regulatory Structure and Eligibility:  
  • The Act creates National and State Surrogacy Boards as regulatory authorities and mandates that surrogate mothers must be close relatives of intended couples aged 25-35 years with at least one biological child, permitted to serve as surrogate only once, with violations attracting severe penalties including imprisonment up to ten years and fines up to ₹10 lakh.