सुप्रीम कोर्ट ने पोक्सो अधिनियम के दुरुपयोग को रोकने के लिये बाल अभिरक्षा मामलों में नई सुरक्षा व्यवस्था तय की

Supreme Court Lays Down Safeguards To Prevent Misuse Of POCSO Act In Child Custody Cases, Quashes False FIR Against Father

Saima Anjum

24 Sept 2026 4:20 PM IST

The Court cautioned against automatic arrest in such cases, and directed the invovlement of a child psychiatrist in the investigation.

The Supreme Court today (24 September) has laid down a set of safeguards to prevent the misuse of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) as a weapon in matrimonial and child custody disputes. The safeguards were laid down while quashing an FIR alleging sexual assault of a minor girl by her father, after a probe by the Central Investigation Agency (CBI) found the allegations to be unreliable.

A bench of Justice JB Pardiwala and Justice KV Viswanathan was dealing with a batch of appeals arising out of a bitter and long-drawn custody battle between a divorced couple, referred to in the judgment as 'R' (father) and 'E' (mother), over their minor daughter 'M'.

Guidelines to prevent misuse of POCSO Act in custody battles

The Court has flagged the growing misuse of POCSO Act in matrimonial disputes. Referring to precedents like Geddam Jhansi v State of Telangana, Achin Gupta v State of Haryana, Ishwar Chand Sharma v State of UP, and Kerala High Court's Suhara v Muhammed Jaleel, the bench noted a worrying trend of spouses filing false POCSO complaints to gain leverage in custody battles or extract better settlements.

The bench observed that while Section 22 of the POCSO Act penalises false complaints, “by the time Section 22 is invoked substantial damage would be caused to the party falsely charged,” in the form of either prolonged incarceration or adverse impact on pending guardianship or custody proceedings. It therefore held that “certain precautions must be taken, within the four corners of the law, to prevent such harm from befalling the accused.”

“Any precaution we envision to prevent irreparable harm to the accused in certain contexts and circumstances must, therefore, not run counter to the stated object of the Act, or dilute the stringency with which such offences are meant to be treated. What is needed is a balancing exercise: precautions that neither dilute the object of the Act nor weaken its provisions, while allowing sufficient leeway to ensure that irreparable harm is not caused to the accused,” the bench further clarified.

Safeguards apply only in matrimonial disputes involving parent or co-residing family member

The bench further clarified that the safeguards would apply only where two threshold conditions are met. One, an offence under the POCSO Act is alleged to have been committed by a parent or family member living under the same roof as the child victim. Two, a matrimonial dispute exists between the parents of the child victim, indicating the possibility of strained relationship. It further laid down a duty of the police officer receiving the complaint to verify when he receives a complaint that a matrimonial dispute exists between the parents.

No automatic arrest merely because POCSO FIR is registered

The Supreme Court held that where the threshold conditions are met, investigating officers should not act in haste or immediately resort to arrest after registration of a POCSO FIR.

Referring to Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the Court stressed that the power to arrest is a statutory discretion and not a mandatory consequence of registration of an FIR. The police must satisfy the statutory conditions before exercising that power.

The Court reiterated the principle that the existence of the power to arrest and the justification for exercising that power are distinct. Arrest cannot be made merely because it is legally permissible.

Expert child psychologist/psychiatrist to assist investigation

When the threshold conditions are satisfied, the Court held that the investigating officer or the Special Juvenile Police Unit (SJPU) shall engage the services of an expert in child and adolescent psychiatry or clinical psychology to aid the investigation, before deciding whether there is reason to believe that the accused has committed the offence for the purpose of effecting an arrest. This can be dispensed with only in exceptional cases with reasons recorded in writing.

The bench, however, clarified two important limitations on the expert evaluation. One, the investigating officer or the SJPU would not be bound by the findings or the contents of the expert report, and that the report is only a tool in aid of exercise of discretion diligently, not control it. Two, the expert report shall not be the sole basis for filing of the chargesheet or a closure report. It has limited purpose to aid the decision of the investigating agency.

Safeguards for private complaints before POCSO Special Courts

With respect to complaints directly filed before the Special Court under Section 33 of the POCSO Act, the bench held that the same threshold conditions would trigger a similar requirement and the Special Court must involve an expert in child and adolescent psychiatry or clinical psychology before deciding whether to take cognizance and issue summons. This can be dispensed with only in exceptional cases with reasons recorded in writing.

Addressing the situations where a POCSO FIR may be used to gain advantage in parallel custody or guardianship 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,” and that courts must independently form a prima facie view on whether the allegations are baseless.

Importantly, the bench clarified that these safeguards would apply to FIR-based investigations that are still ongoing on the date of the judgment, and to Section 33 private complaints where summons have not yet been issued.

In the light of above, the Court directed the District Child Protection Units (DCPUs) across districts to update their expert registers under Rule 5 of the POCSO Rules, 2020 and include the names of experts in child and adolescent psychiatry or clinical psychology.

It also directed that the courts dealing with remand and bail in such cases must examine whether the investigating officer complied with these safeguards or not. Along with this, the bench directed that a copy of this judgment be sent to the Registrar Generals of all High Courts and to the Chief Secretaries of all States and Union Territories for circulation, transmission, and compliance with the safeguards.

Regarding the facts of the case

The parties married in 2011, and their daughter 'M' was born in 2015. After the marriage broke down, the mother left the matrimonial home with the child in 2018. What followed was years of litigation (a guardianship petition), and an FIR against the mother, divorce proceedings, and a custody case that went up to the Karnataka High Court and the Supreme Court.

In March 2022, the Family Court had directed the mother to hand over custody of the child to the father. This was upheld by the High Court in January 2023, subject to visitation rights for the mother. Mother's Special Leave Petition (SLP) against the High Court's order was dismissed by the Supreme Court in March 2023. Eventually, the custody of the child was handed over to the father in June 2023 pursuant to High Court's directions.

The father challenged the High Court's order modifying visitation rights before the Supreme Court. Meanwhile, the mother lodged an FIR against the father alleging that he had sexually harassed the child on two occasions and had threatened to kill the mother if the child disclosed the alleged harassment. Section 10 of the POCSO Act, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), 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 respectively) were invoked in the FIR.

Taking note of the seriousness of the allegations, the Supreme Court in April this year directed that the investigation into the FIR be transferred to the CBI, to be conducted by a Committee headed by an officer not below the rank of the (Deputy Inspector General) DIG, along with a lady psychologist. The Court also clarified that the CBI would not take any coercive steps against either party during the investigation.

The CBI constituted a Committee led by K Sivasubramani (DIG), along with Vinayak Varma (Superintendent of Police, CBI/SP, CBI), Shilpa (Superintendent of Police, CBI/SP, CBI), Dr Lakshmi Sravanti Tanuku (Assistant Professor, Child and Adolescent Psychiatry, NIMHANS), and Dr Anamika Sahu (Assistant Professor, Clinical Psychology, NIMHANS).

The Supreme Court commended the CBI's investigation into the case, noting that it examined witnesses including the child's class teacher, tuition teacher, school counsellor, housemaid, and neighbours. It also analysed CCTV footage from the father's house covering the period the child stayed with him.

Extracting the CBI's final conclusion, the Court stated as follows:

“While each individual aspect may be insufficient in itself to negate the allegations, but taken together in their entirety, the Committee finds that the allegations are not made out against the accused and the matter is not fit for prosecution.”

The psychiatric evaluation had also found that factors such as prolonged parental conflict, on-going custody litigation, repeated discussions of the allegations, multiple psychological consultations and continued exposure to family narratives may have influenced the child's perceptions and narrative, and that no signs of anxiety or trauma consistent with the allegations were found in the child.

Accepting the CBI's findings, the Supreme Court quashed the FIR registered against the father, holding that continuing the proceedings would be a gross abuse of process. The Court held that the CBI report has “found the case to be not maintainable, the very basis for Mother-'E' to seek custody of 'M' stands shattered.”

Applying the principle of the welfare of the child from Rosy Jacob v Jacob A Chakramakkal, the Court held that the custody and guardianship of the child would be best served with the father, and directed that legal custody rest with him. However, noting that physical custody had remained with the mother since March 2023, the Court remitted the matter to the Family Court for the process of re-integration of the child with the father, to be guided by a Committee of Experts comprising the two CBI officers and the two NIMHANS doctors involved in the investigation. The Committee was tasked with deciding interim custody arrangements pending full re-integration.

Further, the Court also quashed the FIR lodged by the father against the mother, observing that “much water has flown under the bridge” since then. It also directed the parties and the child to appear before the Family Court on 28 September along with a copy of the judgment.

Case: 'R' v 'E' & Anr and connected matters

Citation : 2026 LiveLaw (SC) 982

Appearance:

For Appellant: Mrs. Lakshmy Iyengar, Sr. Adv.; Mr. A Velan, AOR; Ms. Divya Swami, AOR; Ms. Ankitha Shelke, Adv.; Mr. N. Gowtham Raghunath, Adv.; Mr. Skanda Rk Rao, Adv.

For Respondents: Ms. Navpreet Kaur, Adv.; Mr. Prince Singh, Adv.; Mr. Nilay Rai, Adv.; Mr. Rashik Hameed Mukilan M, Adv.; Ms. Vanya Sharma, Adv.; Mr. Yashvardhan Chauhan, Adv.Ms. Patil Rekha Chandra Gouda, AORMr. Kunal Vajani, AAG; Mr. Rajesh Gulab Inamdar, AOR; Ms. Rakshita Singh, Adv.; Mr. BLN Sanjit, Adv.; Mr. Ritik Grover, Adv.; Mr. Guneet S. Sidhu, Adv.; Mr. Amitoj Chadha, Adv.

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