NCPCR urges UP govt to file appeal against contentious bail order passed by Allahabad HC

On Thursday, the National Commission for Protection of Child Rights urged the Uttar Pradesh government to appeal against a specific Allahabad High Court order dated July 28. In a letter addressed to UP Chief Secretary Rajendra Tiwari, NCPCR chairperson Priyank Kanoongo raised concerns about the HC's verdict in the Khushabe Ali vs State Of U.P. case which cited Section 375 of the CrPC to grant bail to an accused. He specifically objected to Exception 2 to this section- "Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape". 

Kanoongo contended that the provisions of the POSCO Act prevail over the personal laws as well as IPC. Moreover, he added, "In the present matter, the order passed by the Hon'ble Allahabad High Court, 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 POSCO Act, the accused would not have been granted bail in such a serious offence". 

He also pointed out that a two-judge bench of the Supreme Court had passed an order on October 11, 2017, whereby it read down Exception 2 raising the age of consent to 18. Thus, it now reads as "Sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape". The SC had observed that only this would preserve the intent of social justice to a married girl and the constitutional vision of the framers of the Indian Constitution. 

Read NCPCR's full letter here: 

The Allahabad HC verdict

This case pertains to an FIR that was lodged against the petitioner Khushabe Ali on September 8, 2020, under Sections 498-A, 323, 504, 506, 354 of the IPC read with Sections of the Dowry Prohibition Act. Languishing in jail since November 17, 2020, he sought bail on the grounds that his wife had belatedly complained about being subjected to unnatural intercourse. Moreover, Ali told a single-judge bench of the Allahabad HC comprising Justice Mohd. Alam that he had no criminal history and would continue to cooperate with the probe.

The judge held, "I have perused the facts and material available on record and has found that it is matter of family dispute and initially in the F.I.R. the victim has alleged that applicant-accused with co-accused brother-in-law and brother has demanded dowry and has committed sodomy and modesty upon her, but in the statement recorded under Section 164 Cr.P.C, the victim has confined herself regarding the demand of dowry and breach of modesty and harassment and has also confined the act of sodomy and has stated that offence of sodomy was committed by her husband". Moreover, he took into account Exception to Section 375. Observing that "no injury" was found on the victim's body, he allowed the bail application.