Supreme Court lays down guidelines to check misuse of POCSO Act by parents in custody battles

The Supreme Court on Thursday laid down nationwide safeguards to prevent the misuse of the Protection of Children from Sexual Offences (POCSO) Act in matrimonial and custody disputes ['R' v. 'E' & Anr].

A Bench of Justices JB Pardiwala and KV Viswanathan expressed alarm over the growing trend of warring spouses levelling false allegations of child sexual abuse against each other to gain tactical leverage in court.

"Instances are not infrequent where gullible parties are misguided by their advisors, including in some cases by recalcitrant legal professionals, who in their pursuit of the motto of 'win at any cost', end up fuelling the fire...Very often, the enraged parent who is engulfed by anger and blinded by ego falls prey to these machinations, oblivious to the consequences that may ensue," the Court remarked.

It said that such accusations inflict irreparable harm, public humiliation and unwarranted arrest on accused parents before they can establish their innocence.

To check this menace, the top court instituted mandatory procedural safeguards that police officers and special courts must follow whenever specific threshold conditions are met. These guidelines apply when a POCSO offence is alleged against a parent or co-habiting family member during an existing matrimonial dispute and include:

1. No automatic arrests: Investigating officers cannot make hasty or routine arrests under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) - the law governing when police may arrest a suspect without a warrant - without first establishing a genuine "reason to believe" that the crime was committed.

2. Mandatory child expert evaluation: Before making an arrest or taking coercive steps, the police or the Special Juvenile Police Unit (SJPU) must engage an expert in child and adolescent psychiatry or clinical psychology, in consultation with the District Child Protection Unit (DCPU), to independently evaluate the child victim.

3. Expert report as a pre-condition: The police must take the child mental health expert’s evaluation report into consideration alongside other evidence before deciding whether there is sufficient justification to effect an arrest.

4. Filter for private complaints: When a parent moves a special court with a direct private complaint under Section 33 of the POCSO Act - a provision that allows an aggrieved person to approach a judge directly without going through the police - the judge must involve a child psychiatric expert to evaluate the child before deciding whether to take judicial note of the case and issue summons to the accused.

The directions came while disposing of a bitter custody battle between an estranged couple. After the husband won custody rights, the mother lodged an FIR in March 2024 alleging that the father and his family members had subjected their 9-year-old daughter to aggravated sexual assault under Section 10 of the POCSO Act. Due to the sensitivity of the case, the Supreme Court transferred the probe to the Central Bureau of Investigation (CBI).

A specialised CBI team - working alongside child psychiatrists from NIMHANS, Bengaluru - analysed years of CCTV footage, conducted forensic interviews and subjected the child to clinical evaluations. The CBI concluded that the allegations were uncorroborated, unreliable and influenced by prolonged exposure to parental conflict, finding the case unfit for prosecution.

Accepting the CBI’s final report, the Court held that the POCSO FIR was registered solely to defeat prior court orders and regain custody. Terming the criminal proceedings a gross abuse of process, the Bench quashed the case in its entirety.

"Now, that the Report of the CBI has, after a threadbare investigation, found the case to be not maintainable, the very basis for Mother-‘E’ to seek custody of ‘M’ stands shattered," the Court held.

Applying the welfare of the child principle, the top court restored legal custody to the father and directed the Bengaluru family court to oversee a phased re-integration of the child with her father under the guidance of the NIMHANS expert committee.

The Court directed its Registry to send copies of the judgment to the Chief Secretaries of all States and Union Territories for onward transmission to every police station, as well as to all High Courts for circulation among criminal and family courts across India.

The parties in the case were represented by Senior Advocate Lakshmy Iyengar and Additional Advocate General Kunal Vajani, along with advocates A Velan, Divya Swami, Ankitha Shelke, N Gowtham Raghunath, Skanda Rk Rao, Navpreet Kaur, Prince Singh, Nilay Rai, Rashik Hameed Mukilan M, Vanya Sharma, Yashvardhan Chauhan, Patil Rekha Chandra Gouda, Rajesh Gulab Inamdar, Rakshita Singh, BLN Sanjit, Ritik Grover, Guneet S Sidhu and Amitoj Chadha.

[Read Judgment]