Safeguards Against Misuse of POCSO in Custody Disputes

Supreme Court

Why in News? 

A Bench of Justice J.B. Pardiwala and Justice K.V. Viswanathan, in 'R' v. 'E' & Anr. (2026), laid down safeguards to prevent the misuse of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) in matrimonial and child custody disputes. The Court also quashed an FIR alleging sexual assault of a minor girl by her father after a Central Bureau of Investigation (CBI) probe found the allegations unreliable. 

What was the Background of 'R' v. 'E' & Anr. (2026) Case? 

• The parties, referred to as 'R' (father) and 'E' (mother), married in 2011. Their daughter 'M' was born in 2015. 
• After the marriage broke down, the mother left the matrimonial home with the child in 2018. This led to prolonged litigation, including a guardianship petition, an FIR against the mother, divorce proceedings, and a custody dispute. 
• In March 2022, the Family Court directed the mother to hand over custody of the child to the father. The Karnataka High Court upheld this in January 2023, subject to visitation rights for the mother, and the Supreme Court dismissed the mother's Special Leave Petition in March 2023. Custody was handed over to the father in June 2023. 
• The father later challenged a High Court order modifying the visitation rights before the Supreme Court. 
• In the meantime, the mother lodged an FIR against the father alleging that he had sexually harassed the child on two occasions and threatened to kill her if the child disclosed it.  
• The FIR invoked 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 (now Sections 115(2), 352 and 351 of the Bharatiya Nyaya Sanhita, 2023). 
• In April 2026, the Supreme Court transferred the investigation to the CBI, to be conducted by a Committee headed by an officer not below the rank of Deputy Inspector General, along with a woman psychologist. The Court directed that no coercive steps be taken against either party during the investigation. 
• The CBI Committee included two Superintendents of Police and two experts from NIMHANS, one in child and adolescent psychiatry and one in clinical psychology. 
• The Committee examined witnesses including the child's class teacher, tuition teacher, school counsellor, housemaid and neighbours, and analysed CCTV footage from the father's house. It concluded that the allegations were not made out and the matter was not fit for prosecution. 
• The psychiatric evaluation found no signs of anxiety or trauma consistent with the allegations. It noted that prolonged parental conflict, ongoing litigation, repeated discussion of the allegations and exposure to family narratives may have influenced the child's account. 

What were the Court's Observations? 

On the Growing Misuse of the POCSO Act in Matrimonial Disputes: 

• Referring to Geddam Jhansi v. State of Telangana, Achin Gupta v. State of Haryana, Ishwar Chand Sharma v. State of U.P., and the Kerala High Court's decision in Suhara v. Muhammed Jaleel, the Court noted a worrying trend of spouses filing false POCSO complaints to gain leverage in custody disputes or secure better settlements. 

On the Inadequacy of Section 22 of the POCSO Act: 

• The Court observed that although Section 22 penalises false complaints, "by the time Section 22 is invoked substantial damage would be caused to the party falsely charged." Such damage may take the form of prolonged incarceration or an adverse impact on pending custody or guardianship proceedings. 
• It held that "certain precautions must be taken, within the four corners of the law, to prevent such harm from befalling the accused." 

On Striking a Balance: 

• The Court clarified that any precaution must not run counter to the object of the Act or dilute the seriousness with which such offences are to be treated. It described the exercise as a balance between preserving the Act's stringency and preventing irreparable harm to the accused. 

On the Threshold Conditions for Applying the Safeguards: 

The safeguards apply only when both of the following conditions are met: 

• the POCSO offence is alleged to have been committed by a parent or a family member living under the same roof as the child; and 
• a matrimonial dispute exists between the child's parents, indicating a possibly strained relationship. 

The police officer receiving the complaint has a duty to verify whether such a matrimonial dispute exists. 

On Arrest in POCSO Cases: 

• Where the threshold conditions are met, investigating officers must not act in haste or arrest the accused immediately upon registration of the FIR. 
• Referring to Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the Court held that the power to arrest is a statutory discretion and not an automatic consequence of registering an FIR.  
• The existence of the power to arrest and the justification for exercising it are distinct, and arrest cannot be made merely because it is legally permissible. 

On Involvement of Experts in the Investigation: 

The investigating officer or the Special Juvenile Police Unit (SJPU) must engage an expert in child and adolescent psychiatry or clinical psychology before deciding whether there is reason to believe the accused committed the offence for the purpose of arrest. This may be dispensed with only in exceptional cases, with reasons recorded in writing. 

The Court placed two limits on the expert report: 

• the investigating officer or SJPU is not bound by the expert's findings, as the report only aids the exercise of discretion; and 
• the report cannot be the sole basis for filing a chargesheet or a closure report. 

On Private Complaints before the Special Court: 

• For complaints filed directly before the Special Court under Section 33 of the POCSO Act, the same threshold conditions apply.  
• The Special Court must involve an expert in child and adolescent psychiatry or clinical psychology before deciding whether to take cognizance and issue summons, save in exceptional cases with reasons recorded in writing. 

On the Effect of POCSO FIRs in Custody Proceedings: 

• The Court held that "the mere registration of a case under the POCSO Act should not by itself give rise to an inference that the allegation is true." Courts dealing with custody or guardianship must independently form a prima facie view on whether the allegations are baseless. 

On the Applicability of the Safeguards: 

• The safeguards apply to FIR-based investigations pending on the date of the judgment, and to Section 33 private complaints in which summons have not yet been issued. 

Directions Issued: 

The Court directed as follows: 

• District Child Protection Units must update their expert registers under Rule 5 of the POCSO Rules, 2020 to include experts in child and adolescent psychiatry or clinical psychology. 
• Courts dealing with remand and bail in such cases must examine whether the investigating officer complied with the safeguards. 
• A copy of the judgment be sent to the Registrars General of all High Courts and the Chief Secretaries of all States and Union Territories for circulation and compliance. 

On the Facts of the Case: 

• Accepting the CBI's findings, the Court quashed the FIR against the father, holding that continuing the proceedings would be a gross abuse of process. It observed that with the CBI finding the case not maintainable, the very basis of the mother's claim to custody "stands shattered." 
• Applying the welfare of the child principle from Rosy Jacob v. Jacob A. Chakramakkal (1973), the Court held that legal custody and guardianship should rest with the father. 
• Since physical custody had remained with the mother since March 2023, the Court remitted the matter to the Family Court for the child's reintegration with the father. This process is to be guided by a Committee of Experts comprising the two CBI officers and the two NIMHANS doctors involved in the investigation, which will also decide interim custody arrangements. 
• The Court also quashed the FIR lodged by the father against the mother and directed the parties and the child to appear before the Family Court on 28 September 2026.

What is the Protection of Children from Sexual Offences Act, 2012?