Before arresting a parent on a POCSO complaint made during a custody fight, get a child psychiatrist

A CBI investigation found the case against the father was not maintainable. By then he had lost his child. The Supreme Court has quashed the FIR and written safeguards that go to every criminal court and every police station in India.

The Supreme Court redacted the names of everyone in this case to the first letter of each. Legal Republic follows that.

On 24 September 2026 a Bench of Justice J.B. Pardiwala and Justice K.V. Viswanathan quashed a POCSO FIR registered against a father, restored his legal custody of his son, and then did something the case itself did not require: it laid down a set of safeguards for every future case in which one parent accuses the other of sexually assaulting their child while a matrimonial dispute is running between them.

The judgment, authored by Justice Viswanathan, opens on the harm it is trying to prevent. To be caught in the crossfire between warring parents is painful for any child. When the acrimony escalates into an unjustified accusation that one parent has sexually assaulted the child, it acquires a different dimension — quite apart from the trauma to the child, the accusation can damage the parent-child relationship permanently, and the accused parent carries the humiliation and public opprobrium long after.

Eight years of litigation, and one FIR

The couple married in 2011, a second marriage for both. Misunderstandings arose early but appeared to settle, and a son was born in 2015. Serious trouble resumed from 2017, and in April 2018 the wife left the matrimonial home with the child. Her case is that she was driven out after being assaulted; a criminal case was registered on that and later closed.

What followed was the familiar multiplication. That same month the father filed a guardianship petition under Section 25 of the Guardians and Wards Act, 1890 before the Family Court at Bengaluru. In June 2018 he lodged an FIR against the wife and another person under provisions of the Indian Penal Code and Sections 75 and 87 of the Juvenile Justice Act. In July 2018 he petitioned for divorce on grounds of cruelty and adultery. Visitation arrangements were made while the guardianship petition was pending.

Custody eventually went to the father, and in March 2023 the Supreme Court confirmed it.

A year later, in March 2024, an FIR was registered alleging an offence under Section 10 of the POCSO Act, Section 75 of the Juvenile Justice Act and Sections 323, 504 and 506 read with Section 34 of the IPC against the father. The case was transferred to the Central Bureau of Investigation. Physical custody of the child passed to the mother that same month.

What the Supreme Court did while the case ran

The Court did not simply wait for the investigation. In July 2024, on being told of the FIR, it directed that the investigation be handed to a senior woman police officer of the station not below the rank of Assistant Commissioner of Police, and that the child be examined by a panel of three doctors from Bangalore Medical College and Research Institute. When the matter came up again in October 2024, after the Bench had interacted with both parties and with the child, the criminal proceedings filed by each side were stayed.

The investigation eventually went to the CBI, whose report ran to 79 pages. The judgment records that the Bench perused not merely the summary but the full report, which is organised into sections covering the background, the purpose and scope of the evaluation, the forensic interview process and clinical observations, the clinical evaluation of the child, a review of collateral information, and a statement credibility analysis. The psychological and psychiatric evaluation was itself broken down into the child's disclosure history, witness statements, CCTV footage and video recordings, an independent psychiatric and psychological analysis, and a forensic interview.

The conclusion was that the testimony did not appear reliable or trustworthy. Contradictory testimonies, the absence of independent corroborative proof, CCTV footage suggesting a different sequence of events, and the psychiatric evaluation together raised doubt about the allegations — no single element decisive on its own, but taken in their entirety sufficient for the committee to find the allegations not made out.

Having considered the child's education, maintenance and health, the Court found no ground to differ from the guardianship order that had been sustained all the way up to it. If anything, it held, the CBI's findings reinforced that the child's interests would be best served in the father's custody.

Why Section 22 comes too late

The Court's starting point is that the POCSO Act is not meant for settling scores, and that attempts to misuse it need to be curbed — a proposition it draws from a report placed before it.

Section 22 of the Act already punishes false complaints. The difficulty, the judgment holds, is one of timing: by the time that provision can operate, irreparable harm may already have been done. That harm takes two forms. The accused may suffer prolonged incarceration, with the loss of liberty and everything else that follows the registration of an FIR. And the accusation may independently wreck guardianship or custody proceedings being fought in another forum — which is precisely what happened here, the Court finding itself convinced that the FIR had been registered to lay a foundation for handing custody back.

The Bench is explicit that it is taking judicial notice of a pattern rather than reacting to one case. It cites the Madras High Court in N. Chandramohan v. State (2019), which recorded that its attention had repeatedly been drawn to false complaints alleging POCSO offences by a husband against his own daughter, and that such tactics were being adopted in family court cases to arm-twist a husband into falling into line — observations that court made having been initially unwilling to believe such instances could happen at all.

The opening of the judgment names the mechanism: an enraged parent, engulfed by anger and blinded by ego, falls prey to these machinations, oblivious to the consequences. Some of those attributes, the Court says, are present in this case — and so it has endeavoured not merely to solve the case before it but to lay down safeguards to check a growing menace.

So precautions are needed within the four corners of the law. The Bench is careful about the direction of travel: any precaution must not run counter to the object of the Act — a self-contained, comprehensive law to protect children from sexual assault, harassment and exploitation, with the child's interest safeguarded at every stage — or dilute the stringency with which such offences are treated. What is needed is a balancing exercise, and the safeguards are to be read in that specific context.

Two threshold conditions

The safeguards do not apply to POCSO cases generally. They apply only where both of two conditions are met.

First, the offence must be alleged against a parent, or another family member living under the same roof as the child victim. Second, a matrimonial dispute of some form must exist between the parents — whether or not it is before a court — indicating the possibility of a strained relationship. The judgment places a specific duty on the police officer receiving the complaint to verify, at the time of receipt, that such a dispute exists.

That second condition is the gate. Without a matrimonial dispute in the background, none of what follows is engaged — which is what keeps the safeguards away from the ordinary run of POCSO cases, where the accused is not a parent and no custody fight is in progress.

Where a police report is involved

For cases begun by FIR, the Court works through Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — the provision corresponding to Sections 41 and 41-A of the old Code — which governs when a police officer may arrest without a warrant.

It reads the section as imposing two conditions before the discretion to arrest may be exercised. The officer must have reason to believe, on the complaint, information or suspicion, that the person has committed the offence. And the officer must be separately satisfied that arrest is necessary — to prevent a further offence, for proper investigation, to prevent tampering with evidence, to prevent inducement or threats to witnesses, or because the person's presence in court cannot otherwise be ensured. The section requires the officer to record reasons in writing when arresting, and equally to record reasons in writing when not arresting.

Onto that statutory frame the Court adds the new requirement. Where the threshold conditions are met, the investigating officer or the Special Juvenile Police Unit must engage the services of an expert in child and adolescent psychiatry or clinical psychology, in consultation with the District Child Protection Unit — or the District Legal Services Authority where no such Unit exists — to aid the investigation.

There is a narrow exit. In exceptional cases where the material is palpable, the investigating officer may dispense with the expert, for reasons to be recorded in writing.

Where the complaint goes straight to the Special Court

The second route into a POCSO prosecution is a private complaint, and the Court notes a structural oddity in it. The BNSS does not contemplate a complaint being filed before a Sessions Court at all; it prescribes the procedure for complaints to a Magistrate. The POCSO Act, by contrast, vests a right in an aggrieved person to approach the Special Court directly.

The Bench reads that extraordinary procedure as a legislative response to the sensitivity of time, the vulnerability of the victim and the need to trigger the Act's protective measures at the earliest. But it follows that the jurisdiction must not be invoked lightly, and that the Special Court must find sufficient grounds before issuing process.

Accordingly, where the threshold conditions are met and the Special Court is deciding whether to take cognizance and issue summons, it too must involve an expert in child and adolescent psychiatry or clinical psychology. The expert is to conduct a psychiatric or psychological evaluation of the child victim and submit a report to the Special Court, which the Court must take into account along with other relevant circumstances before forming its opinion.

And a third check, at remand and bail

The safeguards reach one stage further. Courts dealing with remand and bail in cases meeting the threshold conditions are directed to examine whether the investigating officer complied with the statutory provisions before taking coercive action — which necessarily means assessing whether the decision to arrest was taken with due regard to the circumstances in which the complaint arose, and particularly to the strained relationship between the parents.

The Bench declines to go further than principle. Beyond what it has set out, it holds, it is difficult to state precisely the course a court should follow: the multiplicity of facts and circumstances in which these situations arise makes any hard and fast rule impossible to conceive and impracticable to apply. How a matter should proceed is for the court concerned to decide, in light of the basic principles laid down and by due application of judicial mind.

What was ordered in this case

The FIR, renumbered as a CBI case, was quashed. Legal custody of the child was directed to rest with the father.

The Court was conscious that physical custody had been with the mother since March 2024, and that a child cannot simply be moved. It therefore remitted the matter to the Family Court at Bengaluru for the limited purpose of re-integrating physical custody, and directed that the judge be advised by a committee of four: two Superintendents of Police from the CBI, and two assistant professors from NIMHANS — one from the Department of Child and Adolescent Psychiatry, the other from Clinical Psychology.

The parties and the child were directed to report to the judge's chambers at ten in the morning on 28 September 2026, with a copy of the judgment, and copies were ordered to be sent to the judge and to each of the four committee members.

A second guardianship petition filed by the mother in 2024 was terminated. Its foundation was the FIR, and with the FIR quashed the Court held there was no basis for the fresh proceedings to continue. A contempt petition filed by the father — alleging breach of a January 2024 order that had stayed visitation rights granted to the mother by the High Court and restored an earlier arrangement — was dealt with in light of the substantive order made, the Bench recording that it did not propose to proceed further in the matter.

Having quashed the proceedings, the Bench recorded that it deliberately refrained from making further observations.

When the safeguards bite

The safeguards are to be strictly observed by the authorities concerned, and the judgment is precise about who they catch. For FIR cases, they apply to investigations underway on the date of the judgment. For private complaints under Section 33, they apply where summons have not already been issued as on that date.

The distribution directions are the reason this judgment will be felt well beyond the parties. A copy goes to the Registrar Generals of the High Courts to be placed before the Chief Justices, and the High Courts are directed to transmit it to every criminal court, drawing particular attention to the safeguards. A copy also goes to the Chief Secretaries of all States and Union Territories for onward transmission to every police station, with the same paragraphs flagged.