Child Rights Body Asks UP To Urgently Appeal Against HC Order That Sex With A Wife Above 15-Years Is Not 'Rape'

New Delhi/Lucknow, August 8 (TNA) The National Commission for Protection of Child Rights (NCPCR) has written to UP chief secretary RK Tiwari on a recent Allahabad HC ruling in which it had said that "sex with a minor wife above age of 15 will not be considered as ‘rape’". The Commission has urged the top bureaucrat to "take necessary steps and file an urgent appeal against aforesaid judgement/order."

The Commission, constituted under Section 3 of the Commission for Protection of Child Rights (CPCR) Act, 2005 by the Government of India, as a statutory body for dealing with the protection of child rights and other related matters which is also mandated under section 109 of JJ Act, 2015 says it is pertinent to note that as the offences related to children were not being specifically addressed or dealt, hence, considering this issue the Government of India decided to formulate a law specifically for the children explicitly defining the offences countering it through commensurate penalties as an effective deterrence and formulated the POCSO Act, 2012.

The POCSO Act is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography while safeguarding the interest and well being of the child at every stage of the judicial process, the letter further says. The Commission would further like to bring to his notice that POCSO Act is a Special Law and as per Section 42 A the said Act, the provisions of the POCSO Act has overriding effect on the provisions of any such law to the extent to the inconsistency. Thus, the provisions of the POCSO Act prevails over the personal laws as well as IPC.

This fact can also not be ignored that Exception 2 to Section 375 of IPC is contrary to the philosophy and ethos of Article 15(3) and Article 21of the Constitution of India.

Further, it is also to be noted that the Hon'ble Supreme Court vide judgement/order dated 11th October 2017 in Writ Petition (C) No. 382 of 2013 in the matter of Independent Thought Vs. UOI &Anr.the two judge-bench, through two concurring opinions, read down Exception 2 to Section 375 IPC and raised the age of consent to 18 for the purpose of the Exception.

In the present matter the order passed by the Allahabad High Court (as reported in the media), it has been observed by the Commission that the prosecution has failed in presenting the case of the minor properly. If the prosecution had made the submissions as per the spirit of the POCSO Act, the accused would not have been granted bail in such serious offence.

Further, the remarks of theHigh Court "sex with a minor wife above the age of 15 will not be considered as rape"(as reported in the media) also need to be reviewed and the State should take note of this as it seems to be derogatory to the minor and may also set a wrong precedent.