POCSO Allegations Amid Custody Dispute Cannot Trigger Mechanical Arrest or Defeat a Parent’s Custody Claim: Supreme Court Prescribes Safeguards
Case Name: ‘R’ v. ‘E’ & Anr.
Date of Judgment: 24 September 2026
Citation: 2026 INSC 1049
Bench: Justice J.B. Pardiwala and Justice K.V. Viswanathan.
Held: Where a POCSO offence is alleged against a parent or a family member living with the child, and a matrimonial dispute exists between the parents, investigators must consider that context before deciding on arrest. They must ordinarily obtain an independent evaluation by a qualified child psychiatry or clinical psychology expert. The expert’s report assists the decision; it does not bind the investigating officer or determine whether a chargesheet should be filed. In a direct complaint under Section 33 of the POCSO Act, the Special Court must similarly consider an expert evaluation before deciding whether to issue process. An expert may be dispensed with in an exceptional case where the material is palpable, for reasons recorded in writing. Mere registration of a POCSO case cannot, by itself, defeat a parent’s custody claim. The safeguards apply only where both stated conditions are met; they do not presume that allegations arising during a matrimonial dispute are false.
Summary: The parents were engaged in prolonged custody litigation, and custody of their daughter had earlier been awarded to the father. The mother subsequently lodged an FIR alleging offences under the POCSO Act and other laws against him, while seeking custody of the child. Following a CBI investigation, the Supreme Court concluded that the FIR had been lodged to lay the foundation for returning custody to the mother. Addressing the wider risk of such allegations being used in custody disputes, the Court prescribed safeguards for arrest and for summons on direct POCSO complaints. It also directed custody courts to assess the relevant material rather than treat registration of a POCSO case as proof of the allegation.
Decision: The Supreme Court quashed the 2024 POCSO FIR against the father and directed that the child’s legal custody rest with him. It sent the question of restoring physical custody to the Bengaluru Family Court for a supervised reintegration process with expert assistance. The Court also quashed an earlier FIR arising from the parents’ dispute, terminated the mother’s fresh guardianship petition, and disposed of the connected appeals and contempt petition. The safeguards apply to FIR cases whose investigations were ongoing on 24 September 2026 and to direct Section 33 complaints in which summons had not yet been issued on that date.