New Delhi: A father facing prosecution under the Protection of Children from Sexual Offences (POCSO) Act cannot be given custody of his children while the criminal proceedings are pending, the Supreme Court has said.
The bench of Justices Vikram Nath and Sandeep Mehta on Wednesday also set aside observations made by the Delhi High Court questioning the allegations against the father, saying they were “out of place, uncalled for and premature” as the criminal proceedings were still pending.
The case pertains to a seven-year custody battle involving two children—a son born in 2013 and a daughter born six years on—and litigation that has moved through Delhi, Bengaluru and Calcutta.
The POCSO case originated in Bengaluru. In October 2023, the son was taken to the National Institute of Mental Health and Neuro Sciences (NIMHANS) after displaying aggressive behaviour. During his examination, he disclosed incidents indicating sexual abuse by the father.
Subsequently, a POCSO FIR was registered at a police station in Bengaluru on 5 November 2023. Police later filed a chargesheet against the father.
The father challenged the proceedings arising from the FIR before the Calcutta High Court through a petition, which was pending when the Supreme Court heard the custody dispute. The Supreme Court order does not explain why the quashing petition was filed in Calcutta.
The custody proceedings, meanwhile, were being heard in Delhi.
HC’s POCSCO remarks set aside
The POCSO allegations became a crucial factor in deciding whether the father could be given custody.
The Delhi High Court, while upholding a family court order granting sole custody to the father, questioned the allegations and viewed them as apparently motivated and a counterblast to the custody proceedings.
The Supreme Court disagreed with the Delhi HC entering into the merits of the allegations at that stage. It noted that the FIR followed a disclosure made by the child to a NIMHANS psychiatrist after displaying aggressive behaviour. The court said discrepancies in dates and sequence of events relied upon by the father were not significant for deciding custody.
More importantly, the Supreme Court held that the Delhi High Court should not have commented on the veracity of the POCSO FIR, when proceedings arising from it were still pending.
It directed that the HC’s observations be expunged, describing them as “out of place, uncalled for and premature”.
The Supreme Court then considered the effect of the pending prosecution on custody.
Referring to the principles under Section 3 of the Juvenile Justice (Care and Protection of Children) Act, including the child’s right to participate, the best-interest principle and protection from harm, the court said the son’s disclosure and safety could not be subordinated to the father’s custody claim.
Once a chargesheet was filed, granting custody to the father would be “totally unwarranted and unjustified”, it said.
It also pointed to a separate concern: if the child were handed over to the father, his ability to give a “free and fair deposition” in the POCSO proceedings could become “virtually negligible”.
The court did not, however, pronounce the father guilty of sexual abuse. It said the Calcutta High Court must decide his pending quashing petition independently and on its own merits.
Even if the father succeeds in having the POCSO proceedings quashed, the circumstances and background in which the allegations were made would still have to be considered while assessing the children’s welfare, the SC said.
How custody battle spread out
Seven years after marriage, the father and the mother saw their relationship deteriorate. The mother, then four months pregnant with the second child, left the matrimonial home and regained custody of the son. The daughter was born in January 2019.
The father instituted guardianship proceedings in Darjeeling, which were transferred to Barasat. In 2019, he approached the Calcutta HC with a habeas corpus petition seeking restoration of son’s custody. The petition was dismissed in November that year.
Employment took the mother to various cities, including Jodhpur, Vijayawada and Bengaluru. She filed transfer petitions before the SC, which on 25 June 2021 consolidated the proceedings and transferred all custody and associated disputes from Bengal to the Family Court, Patiala House Courts, New Delhi.
The father’s guardianship petition, filed under the Guardians and Wards Act, was allowed by the family court in July 2024, which declared him the sole custodian of the children. That decision was upheld by the Delhi HC in January.
The POCSO proceedings followed a separate chain of events in Bengaluru after the child’s NIMHANS examination. The father’s challenge to those proceedings was filed before the Calcutta High Court.
This meant that while the custody question was being litigated in Delhi, the POCSO FIR was registered and investigated in Bengaluru, and the father’s challenge to that criminal proceeding was pending in Kolkata.
Children’s reluctance weighed on SC
When the case came before the apex court in February, the judges interacted with the parents and children. The son was emphatic that he did not want to be with his father, a “morbid sense of fear” as described by the court.
After the court arranged supervised visitation, the counsellors reported that the children did engage in activities with their father during some sessions. They drew, read, played games and watched movies, while the father attempted to interact with them.
During a June session facilitated by NIMHANS, the daughter repeatedly asked to go home and expressed fear, while the son too wanted to leave. Counsellors recorded avoidance behaviour and the children’s preference to remain with their mother.
The children’s rejection, the father alleged, came from parental alienation by the mother.
The SC rejected the lower courts’ description of the mother’s relocations as a “nomadic life”, viewing them in the context of her efforts to establish a career after leaving the matrimonial home and to provide for her children.
By then, the mother secured a teaching position in the UK. She informed the court that arrangements were made for the children’s schooling there and undertook to bring them back whenever directed by a court.
The apex court granted the permission with the conditions that details of the schooling be submitted within six weeks and produce the children whenever directed.
The SC has neither decided the custody dispute, nor has it determined the father’s guilt in the POCSO case. The Calcutta High Court remains free to decide the father’s quashing petition on its own merits.
The custody appeals have been listed for hearing in January 2027.
Aditya Edara is a TPSJ alum, currently interning with ThePrint.
(Edited by Tony Rai)
Also Read: Bombay HC sets aside TISS professor’s forced retirement over creation of alumni WhatsApp group