A father facing a POCSO chargesheet cannot hold custody, and the children may move to England

A Family Court and the Delhi High Court both gave sole custody to a father who earns Rs 17,000 a month and is facing prosecution. The Supreme Court has stayed both, expunged the High Court’s remarks on the FIR, and let the mother take the children abroad.

Legal Republic does not name the parties in this report. The son is the complainant in a pending prosecution under the Protection of Children from Sexual Offences Act, 2012, and naming his parents would identify him.

A boy of about thirteen and a girl of about seven have spent more than seven years at the centre of their parents’ litigation. In 2024 a Family Court at Patiala House declared the father their sole custodian. In January 2026 the Delhi High Court affirmed that and refused the mother’s application to take them to the United Kingdom, where she teaches. On 23 September 2026 a Bench of Justice Vikram Nath and Justice Sandeep Mehta stayed both orders absolutely, permitted the mother to take the children to England and enrol them in school there, and expunged the High Court’s observations about the criminal case pending against the father.

The order, authored by Justice Mehta, turns on a proposition stated without qualification: so long as a parent is facing prosecution under the POCSO Act, that parent cannot be considered a person entitled to custody of the children.

Seven years, four courts, and a habeas corpus petition

The parents married in September 2011. The son was born in April 2013. The mother is an academic — a doctorate in engineering from Jadavpur University, specialising in research in computer science and engineering.

The relationship broke down in 2018 while she was four months pregnant. She says she was physically assaulted and left the matrimonial home in circumstances that compelled her to leave her five-year-old son behind; she retrieved his custody that September. Within days of her leaving, the father sent a letter seeking mutual divorce and began guardianship proceedings at Darjeeling, later transferred to Barasat. The daughter was born in January 2019, five months after her mother left. The son has been with the mother since September 2018 and the daughter since birth.

The father moved the Calcutta High Court in 2019 by a habeas corpus petition seeking the son’s custody. It was dismissed in November 2019.

Facing economic and social pressure after the birth of her daughter, the mother took what work she could find. She joined IIT Jodhpur and moved there with both children. Between 2019 and 2021 she changed employment twice more, to VIT Vijayawada and then to Bengaluru. Her case is that the moves were not restlessness but necessity: the father, she says, filed spurious RTI requests and complaints with her employer. More than a hundred RTI applications were filed during her tenure at IIT Jodhpur, her counsel told the Court, and they are what forced her out of that job.

In June 2021 the Supreme Court consolidated the scattered proceedings on the mother’s transfer petitions, moving everything from West Bengal to the Family Court at Patiala House, New Delhi. The father’s guardianship petition under Section 7 read with Section 25 of the Guardians and Wards Act, 1890 was heard there.

The passports, and the offer from Hull

In February 2023 the Family Court refused the mother permission to obtain passports for the children, apprehending that she would take them abroad. The Delhi High Court reversed that by interim orders in March and May 2023, allowing her to apply for passports and visas while making clear that this created no special equity and did not entitle her to relocate the children without leave. The father took that to the Supreme Court, which in June 2023 modified it: she could travel alone, but could relocate with the children only after obtaining leave of the High Court. The High Court then disposed of the matter in July 2023, leaving her free to ask the Family Court for permission to relocate.

By then she had secured a lectureship at the University of Hull, drawing about Rs 3 lakh a month. The father is a part-time lecturer at a university in West Bengal, admittedly earning Rs 17,000 a month. Ample material was placed before the courts below showing the disparity.

The Family Court refused permission to relocate in July 2023. Its grounds were the contractual nature of the UK employment, concerns about currency disparities, and a perceived risk that the children would be alienated from their father.

A disclosure at NIMHANS

While her appeal against that refusal was pending, the son began showing signs of aggression. In October 2023 he was taken to the National Institute of Mental Health and Neuro Sciences in Bengaluru, where he disclosed incidents indicating past sexual abuse by his father. Acting on the psychologist’s recommendation, the mother asked her own father to go to the police. An FIR was registered at a Bengaluru police station in November 2023 under the POCSO Act, naming the father as accused. A chargesheet followed. The father’s petition to quash those proceedings is pending before the Calcutta High Court, where an order directing no coercive steps has been passed.

In July 2024 the Family Court allowed the father’s guardianship petition and declared him sole custodian, with visitation to the mother, restraining her from taking the children outside the Family Court’s jurisdiction. The Delhi High Court dismissed her appeal in January 2026. Its conclusions held that the tender years doctrine could not be applied as a determinative principle, rejected relocation, vested custody in the father to preserve sibling unity and arrest parental alienation, expected the mother to keep contributing financially, and directed continued counselling. What weighed with both courts was the mother’s frequent job changes between 2021 and 2023, which they characterised as a nomadic lifestyle.

Ten days of supervised visits, and what the counsellors saw

The Supreme Court took up the appeals in February 2026 and asked that the parents and children be brought for an interaction in Chambers. After that meeting it stayed both judgments. The son, the order records, was emphatic that he was not inclined to be in his father’s company, and his body language exhibited a morbid sense of fear at the thought of it.

So that the father would not be wholly cut off, the Court fashioned a supervised arrangement in May 2026. For eleven days over the summer vacation the children were to be handed to him at the Family Court premises in Bengaluru for six hours a day from 10 a.m., with a counsellor assigned to observe. The counsellor was to gauge the children’s comfort before permitting the father to take them out of the premises; if they were not amenable despite all efforts, visitation was confined to the court building; if they became comfortable, they could go to a mall or a garden. Neither set of grandparents was to be present. The same arrangement was extended to weekends in June. The Family Court was directed to send the counsellors’ reports to the Supreme Court in a sealed envelope.

The reports are extracted at length in the order and they make difficult reading. On the first day the children sat largely silent; the son repeatedly rested his head on the table and covered his face. On the second he became agitated and violent, shouting and banging chairs, and said he could control his anger only in his mother’s presence. Over the following days the sessions settled into craft, drawing and reading, with the father bringing board games, playing films and songs, explaining the significance of Eid, and arranging lunch to the children’s preferences. On the ninth day the son fell and was hurt, and would not accept his father’s help.

The June weekend session was conducted by two professionals from the Psychiatric Social Work Department at NIMHANS. The son asked to leave within half an hour. The daughter became fearful and repeatedly asked to be taken home. Both children spoke of spending their Saturdays and Sundays on court proceedings and meetings with their father, and described it as physically and emotionally exhausting. At three in the afternoon the father tried to start a conversation with the daughter; both children said explicitly that they did not want him back in the room, and he left. The counsellors recorded avoidance behaviour, fear and distress in the daughter, the children seeking reassurance from each other, and a consistent preference to remain with their mother.

What the Court made of it

Senior counsel for the father, Shri Shyam Divan, argued that this was a clear case of parental alienation, that the son’s mind had been poisoned against a father he had happily lived with until 2018, and that financial disparity could not be the sole consideration — the paternal grandparents draw a combined pension of about Rs 1 lakh and own a house with sufficient accommodation. He argued that the father had lost a well-paid job with a multinational because of the mother’s complaints, that she could not take advantage of her own wrongs, that the FIR was a counterblast, and that relocation would cost the children the cultural ethos and values of a Bengali family. On the last day of visitation, he pointed out, the hostility had receded far enough for father and children to share a meal in the same room.

The Court rejected each of these.

On the nomadic life, it held the characterisation absolutely unjustified and far removed from reality. Having taken the decision to leave, the mother was bound to find respectable, well-paying work suited to her qualifications in order to secure a future for herself and her children. The father, by contrast, appears to have channelled his energies into litigation and into hounding her through RTI applications — conduct the order says exposes his vindictive nature. He has made no endeavour to improve his own financial standing, and her efforts, sustained while contesting multi-pronged litigation, weigh heavily in her favour.

On the grandparents’ pension, the Court held that meeting children’s educational needs is the primary duty of the parents themselves, and that pensionary receipts of paternal grandparents cannot be treated as supplementing a father’s obligations. It noted that the father had been given exclusive custody of both children without any consideration of the consequences of his weak economic standing.

On the shared meal, the Court said the submission need not detain it for a moment. With the visitation period ending and the father making persistent efforts, the children may have relented a little; a one-off incident is not conclusive of any genuine improvement.

On cultural ethos, it held there can be no presumption that children lose their cultural values by moving to another country, and that a mother who herself comes from a Bengali family may reasonably be expected to keep her children connected to their roots.

The observations that were expunged

The sharpest part of the order concerns what the Delhi High Court said about the criminal case. At paragraph 53 of its judgment the High Court had held that the allegations of sexual abuse appeared clearly motivated and in the nature of a counterblast.

The Supreme Court was unable to countenance that. The FIR was lodged following a spontaneous disclosure by the boy to a psychiatrist engaged to examine and pacify his aggressive tendencies; the maternal grandfather merely conveyed the fact of that disclosure to the police. Commenting on the veracity of the FIR therefore amounted to commenting on the veracity of the child’s disclosure. With the FIR itself under challenge before the Calcutta High Court, the Delhi High Court ought to have refrained. Such findings would cause grave prejudice to a prosecution founded on a child victim’s statement. The observations were held out of place, uncalled for and premature and were expunged, with a direction that they shall not be taken into consideration in the proceedings arising from the FIR.

From there the Court moved to the custody consequence. Once the police have filed a chargesheet on allegations constituting a POCSO offence, granting custody of the child to that parent would be totally unwarranted. The order invokes Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015 — the principle of participation, which gives every child the right to be heard in decisions affecting him with due regard to age and maturity; the principle of best interest; the principle of safety; and the principle of non-waiver of rights. Read together, the Court held, the son’s disclosure and his safety cannot be subordinated to the father’s claim for custody while the criminal case is pending. There is a practical dimension too: were the son placed in his father’s custody, the possibility of his giving a free and fair deposition would be virtually negligible.

The Court went further. Even if the father succeeds in the quashing petition and the criminal proceedings are set aside, courts will have to remain circumspect in assessing the circumstances in which the allegations came to be made. The outcome of the criminal case cannot by itself efface the circumstances of the disclosure or render the child’s apprehensions irrelevant to his welfare.

What was ordered

Counsel for the mother had told the Court that in her absence the daughter draws sketches of her and prays to be joined with her. The order records that the two children have been deprived of the custody of both parents by litigation running for more than seven years, and that refusing relocation now — with the father disentitled to custody and the mother employed abroad — would further aggravate their complete parental alienation in their formative years.

The stay granted in February 2026 was made absolute and will continue until the appeals are disposed of. The mother is permitted, for the present, to take the children to the United Kingdom and admit them to a good school, and must place the details of their schooling on record by affidavit within six weeks. She must undertake to produce the children before this or any other court when directed. The quashing petition before the Calcutta High Court is to be decided independently and on its own merits, uninfluenced by the Delhi High Court’s judgment or by anything said in this order.

The appeals themselves are listed for hearing in January 2027.