Introduction:
The Supreme Court has laid down important safeguards to prevent the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) from being misused in matrimonial disputes and child custody battles, while at the same time cautioning that such safeguards cannot dilute the stringent protection intended to be given to children under the statute. A Bench comprising Justice JB Pardiwala and Justice KV Viswanathan issued the directions while deciding a batch of appeals arising out of a prolonged custody dispute between a divorced couple, referred to in the judgment as ‘R’, the father, and ‘E’, the mother, concerning their minor daughter ‘M’. The principal case was titled ‘R’ v ‘E’ & Anr and connected matters, reported as 2026 LiveLaw (SC) 982.
The case presented an unusual intersection between criminal law, child protection legislation and matrimonial custody proceedings. The mother had alleged that the father had sexually harassed their minor daughter on two occasions and had threatened to kill her if she disclosed the alleged conduct. An FIR was consequently registered invoking Section 10 of the POCSO Act, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, and Sections 323, 504 and 506 of the Indian Penal Code, 1860, corresponding to Sections 115(2), 352 and 351 of the Bharatiya Nyaya Sanhita, 2023.
The allegations emerged against the backdrop of an already bitter custody dispute between the parents. The parties had married in 2011 and their daughter was born in 2015. Following the breakdown of the marriage, the mother left the matrimonial home with the child in 2018. Thereafter, several proceedings were instituted between the parties, including guardianship and custody proceedings, criminal proceedings and matrimonial litigation.
In March 2022, the Family Court directed the mother to hand over custody of the child to the father. The order was upheld by the Karnataka High Court in January 2023, although visitation rights were granted to the mother. The mother’s challenge before the Supreme Court was dismissed in March 2023. Pursuant to the High Court’s directions, custody of the child was ultimately handed over to the father in June 2023.
The custody dispute, however, did not end there. The father approached the Supreme Court challenging the High Court’s subsequent order modifying the mother’s visitation rights. During the pendency of these proceedings, the mother lodged the POCSO FIR against the father. Given the seriousness of the allegations, the Supreme Court subsequently directed that the investigation be transferred to the Central Bureau of Investigation (CBI), with the investigation to be conducted by a committee headed by an officer not below the rank of Deputy Inspector General and assisted by a woman psychologist. The Court also directed that no coercive action be taken against either party during the investigation.
The CBI constituted a committee comprising K Sivasubramani, DIG, CBI, Vinayak Varma, Superintendent of Police, CBI, Shilpa, Superintendent of Police, CBI, Dr Lakshmi Sravanti Tanuku, Assistant Professor of Child and Adolescent Psychiatry at NIMHANS, and Dr Anamika Sahu, Assistant Professor of Clinical Psychology at NIMHANS.
The investigation involved examination of several persons who had interacted with the child, including her class teacher, tuition teacher, school counsellor, housemaid and neighbours. The CBI also examined CCTV footage from the father’s residence covering the period during which the child stayed with him.
After considering the material collected during the investigation and the psychiatric and psychological evaluation, the committee concluded that the allegations were not made out against the father and that the matter was not fit for prosecution. The Supreme Court accepted the findings and consequently quashed the FIR.
The judgment, however, went beyond the facts of the individual case. The Court recognised that while allegations of sexual offences against children must be treated with utmost seriousness, the criminal justice system must also guard against situations in which a POCSO complaint is allegedly used as leverage in an ongoing matrimonial or custody dispute. The Court therefore formulated safeguards for a limited category of cases where the alleged offender is a parent or family member residing with the child and a matrimonial dispute exists between the child’s parents.
Arguments of the Parties:
The proceedings arose from a highly contested custody dispute in which both parents had initiated proceedings against each other at different stages. The father’s case was that the POCSO proceedings had to be examined in the context in which the allegations had surfaced. According to the circumstances placed before the Supreme Court, the allegations emerged during the continuing custody litigation, after the father had obtained orders relating to custody of the child.
The father relied heavily upon the outcome of the CBI investigation. The investigation had not merely considered the allegations in isolation but had examined the surrounding circumstances, witnesses who had regular contact with the child, CCTV footage and the child’s psychological condition. The CBI committee ultimately concluded that the allegations, considered collectively, were not made out and that prosecution was not warranted.
The father’s case was also closely connected with the welfare of the child. Since the custody dispute had continued for several years, it was submitted that the Court ought to look beyond the existence of a criminal allegation and determine whether continuation of the proceedings and competing custody claims would serve the child’s welfare.
The mother’s case arose in the context of her allegations that the child had been sexually harassed by the father. The allegations were serious in nature and attracted the protective framework of the POCSO Act. The statutory scheme places a strong emphasis on protecting children from sexual offences and ensuring that allegations of sexual abuse are investigated and prosecuted in accordance with law.
The significance of the mother’s allegations could not be disregarded merely because they were made during an ongoing matrimonial dispute. The very object of the POCSO Act requires authorities to respond seriously whenever information suggesting sexual abuse of a child is brought before them. The Court was therefore required to strike a balance between two competing concerns: ensuring that genuine allegations of child sexual abuse are not suppressed or trivialised merely because the parents are involved in litigation, while also ensuring that the extraordinary consequences of a POCSO prosecution are not triggered mechanically where the surrounding circumstances raise legitimate concerns regarding the reliability of the allegations.
The State’s position was similarly required to be considered against the statutory character of POCSO proceedings. A registration of an FIR under the Act initiates a criminal investigation, but it does not by itself establish the truth of the allegations. The investigating agency remains required to conduct a lawful and fair investigation and exercise the statutory power of arrest in accordance with the applicable provisions.
The Court therefore did not accept an approach under which every POCSO FIR automatically results in arrest. It emphasised that the existence of the power to arrest and the justification for exercising that power are separate questions. The statutory safeguards contained in Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 must govern the exercise of that power.
The broader submissions before the Court also brought into focus the concern that a criminal allegation involving a child may have immediate consequences in parallel guardianship or custody proceedings. Even before the truth of the allegation is established, the registration of an FIR can materially affect the relationship between the child and the accused parent. The Court was therefore required to consider whether safeguards could be devised without creating an additional burden upon genuine child sexual abuse complaints.
Court’s Judgment:
The Supreme Court began its analysis by recognising the seriousness of offences covered by the POCSO Act. The Court made it clear that any safeguards developed to prevent misuse of the statute could not be allowed to dilute the protection afforded to children. The purpose of the directions was therefore not to create a higher threshold for genuine complaints, but to ensure that investigative and arrest powers are exercised with care in a narrowly defined category of cases.
The Bench referred to earlier decisions including Geddam Jhansi v State of Telangana, Achin Gupta v State of Haryana, Ishwar Chand Sharma v State of Uttar Pradesh and the Kerala High Court’s decision in Suhara v Muhammed Jaleel. These decisions had highlighted concerns surrounding allegations of sexual offences being raised in the context of matrimonial disputes and the potential consequences for criminal proceedings and family litigation.
The Supreme Court particularly focused on Section 22 of the POCSO Act, which provides punishment for false complaints or false information made with the intention of humiliating, extorting or threatening a person. The Court observed that although the statute contains a mechanism for dealing with false complaints, resort to Section 22 at a later stage does not necessarily prevent the immediate consequences suffered by a person against whom a false allegation has been made.
By the time the issue of a false complaint is considered under Section 22, the accused may already have suffered incarceration, damage to reputation or serious consequences in parallel guardianship and custody proceedings. The Court therefore held that certain precautions may be necessary at the investigative stage itself.
At the same time, the Bench expressly cautioned that such precautions must remain within the framework of the POCSO Act. The Court stated that any mechanism designed to prevent irreparable harm to an accused cannot operate in a manner that weakens the statute or undermines its object. The exercise, according to the Court, requires a balance between protecting children and preventing the criminal process from causing irreparable harm where circumstances warrant greater investigative care.
The Court consequently prescribed a threshold for the application of its safeguards. The directions are attracted where two conditions coexist. First, the allegation under the POCSO Act must be against a parent or a family member residing under the same roof as the child victim. Second, there must be a matrimonial dispute between the parents of the child, indicating a strained relationship between them.
The Court placed a corresponding responsibility upon the police officer receiving such a complaint. Where the complaint concerns an allegation against a parent or co-residing family member, the officer is required to verify whether a matrimonial dispute exists between the child’s parents.
One of the most significant directions concerns arrest. The Court held that registration of a POCSO FIR cannot automatically result in the arrest of the accused where the above threshold conditions are satisfied.
In this context, the Court referred to Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The provision regulates the circumstances in which a police officer may arrest a person without warrant. The Court emphasised that arrest is not an unavoidable consequence of registration of an FIR. The statutory power to arrest is discretionary and must be exercised after the investigating officer satisfies the conditions prescribed by law.
The Bench reiterated the established distinction between the existence of the power of arrest and the necessity or justification for exercising that power. Merely because the police possess the legal authority to arrest does not mean that arrest must follow in every case.
The Court then introduced another important safeguard. In cases falling within the prescribed threshold, the investigating officer or the Special Juvenile Police Unit must engage an expert in child and adolescent psychiatry or clinical psychology before deciding whether there is reason to believe that the accused has committed the offence for the purpose of arrest.
This requirement may be dispensed with only in exceptional circumstances, and where it is dispensed with, the investigating agency must record reasons in writing.
The Court was equally careful to define the role of the expert. The expert’s assessment is not binding upon the investigating officer or the SJPU. It is intended only as an aid to the exercise of investigative discretion. The investigating officer remains responsible for assessing the entire material collected during the investigation.
The expert report also cannot become the sole basis for filing either a chargesheet or a closure report. Its purpose is limited to assisting the investigating agency in making a more informed and careful decision, particularly at the stage where arrest is being considered.
The Court extended a similar safeguard to private complaints instituted directly before a Special Court under Section 33 of the POCSO Act. Where the same threshold conditions are present, the Special Court is required to involve an expert in child and adolescent psychiatry or clinical psychology before deciding whether to take cognizance and issue summons.
Again, the requirement may be dispensed with in exceptional cases, but reasons for doing so must be recorded in writing.
The judgment also addressed the effect of a POCSO FIR on parallel custody or guardianship proceedings. The Supreme Court made it clear that registration of a criminal case cannot, by itself, be treated as proof that the allegations are true. Courts dealing with custody matters must independently consider whether the allegations appear prima facie baseless or whether there is material warranting their consideration.
This aspect assumes particular importance in matrimonial litigation because custody proceedings are primarily concerned with the welfare of the child, rather than with determining criminal guilt. The existence of a criminal allegation may undoubtedly be relevant, but a custody court cannot simply treat the registration of an FIR as conclusive proof of misconduct.
The Supreme Court relied upon the principle laid down in Rosy Jacob v Jacob A Chakramakkal, where the Court emphasised that the welfare of the child is the paramount consideration in matters of custody and guardianship. Applying this principle to the present case, the Court concluded that, after taking into account the CBI investigation and the surrounding circumstances, the child’s legal custody should remain with the father.
The CBI investigation played a decisive role in the criminal aspect of the matter. The Court commended the manner in which the committee conducted the investigation. The investigators examined persons who had regular contact with the child, including teachers, a counsellor, a housemaid and neighbours, and examined CCTV footage from the father’s residence.
The psychiatric evaluation was also considered. The assessment noted circumstances such as prolonged parental conflict, continuing custody litigation, repeated discussions concerning the allegations, multiple psychological consultations and the child’s exposure to competing family narratives. The evaluation did not identify signs of anxiety or trauma consistent with the allegations.
The CBI committee ultimately concluded that although individual circumstances considered separately might not be sufficient to negate the allegations, the material had to be assessed in its entirety. On that overall assessment, the committee found that the allegations were not made out and that the matter was not fit for prosecution.
The Supreme Court accepted this conclusion and quashed the FIR against the father. It held that continuation of the criminal proceedings would amount to an abuse of the process of law. The Court also observed that once the CBI report had found the case not maintainable, the foundation of the mother’s claim for custody on the basis of those allegations stood substantially affected.
However, the Court did not simply order an immediate transfer of physical custody. It recognised that the child had been living with the mother since March 2023 and that the passage of time itself had to be taken into account. The Court therefore distinguished between legal custody and the practical process of reintegration.
While directing that legal custody remain with the father, the Supreme Court remitted the matter to the Family Court for the process of re-integrating the child with him. The process is to be guided by a Committee of Experts consisting of the two CBI officers and the two NIMHANS doctors who had participated in the investigation.
The Committee was entrusted with determining interim custody arrangements pending full reintegration. The approach demonstrates that the Court’s custody determination was not treated merely as a consequence of quashing the FIR. Instead, the Court recognised the psychological and practical implications of changing a child’s living arrangements after a prolonged period.
The Supreme Court also quashed the FIR lodged by the father against the mother, observing that considerable time had passed and that “much water has flown under the bridge” since its registration. The parties and the child were directed to appear before the Family Court on 28 September along with a copy of the judgment.
Beyond the individual dispute, the judgment contains directions intended to operate prospectively in appropriate cases. The Court directed District Child Protection Units across the country to update their expert registers maintained under Rule 5 of the POCSO Rules, 2020 and include experts specialising in child and adolescent psychiatry or clinical psychology.
The Court further directed courts dealing with remand and bail in such cases to examine whether the investigating officer had complied with the safeguards laid down in the judgment. This places the directions within the broader judicial supervision of arrest and remand, rather than leaving compliance solely to the investigating agency.
The Supreme Court also directed that copies of the judgment be forwarded to the Registrars General of all High Courts and the Chief Secretaries of all States and Union Territories for circulation, transmission and compliance.
The significance of the ruling lies in the balance it attempts to maintain. The POCSO Act was enacted to provide strong protection to children against sexual offences, and allegations of abuse cannot be disregarded merely because the parents are involved in matrimonial litigation. At the same time, the Court recognised that criminal allegations made within a deeply contested custody dispute can have immediate and potentially irreversible consequences for the accused parent and the child.
The safeguards therefore do not create an exemption from POCSO for parents or family members. Nor do they require a child victim to independently prove an allegation before an investigation can begin. Instead, they require greater care in the exercise of arrest powers and in the evaluation of allegations where a narrowly defined combination of circumstances exists.
The judgment thus reinforces two principles simultaneously: the protection of children must remain paramount, and the criminal process must itself be administered fairly and carefully. By requiring expert assistance in specified circumstances, discouraging automatic arrests and directing courts to examine compliance with the safeuards, the Supreme Court has attempted to ensure that