भारतसरकार

GOVERNMENT OF INDIA
रा ीयबालअिधकारसंर णआयोग
NATIONAL COMMISSION FOR PROTECTION OF CHILD RIGHTS
नई द ली -११०००१
New Delhi -110001
F. No. 32-57/2021/NCPCR/Misc/LC/
Dated: 06.08.2021
To,
Sri Rajendra Kumar Tiwari, IAS
Chief Secretary, Government of Uttar Pradesh
101, LokBhawan, U.P. Civil Secretariat,
VidhanSabha Marg, Lucknow - 226001
Phone No. 0522-2289212 / 2289296
Email: csup@nic.in
Respected Sir,
The National Commission for Protection of Child Rights (NCPCR)
(hereinafter referred to as the Commission) has been 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. NCPCR is also
mandated under section 109 of JJ Act, 2015 and Section 44 of POCSO
Act, 2012 to monitor the proper and effective implementation of the
respective Acts.
2. The Commission is assigned with the functions under Section 13
(1) (j) of CPCR Act, 2005 to inquire into complaints and take suo-motu
notice of matters relating to deprivation and violation of child rights; non-
implementation of laws providing for protection and development of
children; non–compliance of policy decisions, guidelines or instructions
aimed at mitigating hardships to and ensuring the welfare of the children
and to provide relief to such children or take up the issues arising out of
such matters with appropriate authorities.
3. A news report dated 06th August 2021 published in “opindia” that
the Allahabad High Court in a verdict stated that sex with a minor wife
above the age of 15 will not be considered as ‘rape’. The link to the said
news report is - https://www.opindia.com/2021/08/sex-with-wife-

5वातल, च लोकिब डग, ३६जनपथ, नई द ली-११०००१

5th Floor, Chanderlok Building, 36 Janpath, New Delhi-110001
दूरभाष/Ph:011-23478200,23724020-21, फै स / Fax:011-23724026
Web: www.ncpcr.gov.in, Lodge your complaint at: www.ebaalnidan.nic.in
 -2-

above-the-age-of-15-is-not-rape-allahabad-high-court-grants-bail-to-
accused-ali/
4. 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.
5. The Commission would further like to bring to your 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.
6. 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.
7. In the present matter the order passed by the Hon’ble Allahabad
High Court (as reported in the opindia), 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 a serious offence. Further, the remarks of the Hon’ble High Court
“sex with a minor wife above the age of 15 will not be considered as
rape”(as reported in the opindia) 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.
 -3-

8. Therefore, in the view of the above considering the sensitivity of the

matter and to safeguard the rights of the children, the Commission being
the monitoring body under Section 44 of the POCSO Act, 2012 requests
you to take necessary steps in this matter and file an urgent appeal
against the aforesaid judgement/order of the Hon’ble High Court.

-Sd/-
(Priyank Kanoongo)
Chairperson, NCPCR