Father facing POCSO prosecution not entitled to child's custody: Supreme Court

The Supreme Court on Wednesday held that a father facing prosecution under the Protection of Children from Sexual Offences Act (POCSO Act) for sexual abuse of his son cannot be given custody of his children.

A Bench of Justices Vikram Nath and Sandeep Mehta said that if the son is handed over to the father, the possibility of the son giving a free and fair deposition in the POCSO proceedings would virtually be negligible.

"Under no circumstances, the respondent-father, as long as he is facing prosecution, can be considered to be a person entitled to custody of the children," the Court said.

The Court was hearing appeals by the mother against a Delhi High Court judgment which had upheld a family court's decision to grant father the sole custody of the couple's two children, aged about 13 and 7.

The couple married in 2011. The wife left the matrimonial home in 2018 when she was pregnant.

She alleged physical assault. Since then, she has had custody of their son and of their daughter, who was born in 2019.

In 2023, the son began showing signs of aggression and was taken to NIMHANS, Bengaluru, where he disclosed incidents indicating past sexual abuse by his father.

Senior Advocate Zoheb Hossain, appearing for the mother, argued that she had been the children's primary caregiver for years. He said her job changes were forced by the father's conduct.

He also submitted that the children's wishes and the counsellors' reports showed their reluctance to be with the father, and that the High Court's remarks on the POCSO case were premature.

Senior Advocate Shyam Divan, appearing for the father, argued that this was a clear case of parental alienation.

It was also pointed out that the mother is in United Kingdom and the children would lose their Bengali roots if they are taken abroad.

The Court said that once the police has filed a chargesheet against the father after investigation in respect of allegations constituting an offence under the POCSO Act, granting custody of the child to the father would be totally unwarranted and unjustified.

The Court further held that even if the FIR is quashed, the subsequent outcome of the criminal proceedings, by itself, cannot efface the circumstances in which the disclosure was made.

The Bench also rejected the argument that the children would lose their Bengali roots abroad,

"There cannot be any presumption that by mere relocation to another country, the children would lose their cultural values," the Court said.

It also said the father's conduct clearly exposed his vindictive nature.

Therefore, the mother was permitted to take the children to UK and admit them to a school there.

She must place the schooling details on affidavit within six weeks and undertake to produce the children whenever a court directs, the bench said.

Pertinently, the Court also expunged the Delhi High Court's remarks that the sexual abuse allegations against the father were motivated.