SC sounds alarm over POCSO ‘weaponisation’ in custody battles, orders checks before arrests

Sounding an alarm over the use of child sexual abuse allegations as a weapon in bitter matrimonial and custody battles, the Supreme Court Thursday laid down nationwide safeguards for police and courts dealing with certain complaints under the Protection of Children from Sexual Offences (POCSO) Act. The court directed that where allegations are made against a parent or family member amid an existing matrimonial dispute and there is no “palpable” material supporting them, police should not rush into arrest and must first obtain an independent assessment of the child by a qualified mental-health expert.

A Bench of Justices J B Pardiwala and K V Viswanathan issued the directions while dealing with a custody dispute in which a mother had accused her estranged husband and his family members of sexually assaulting their nine-year-old daughter. After a CBI investigation conducted with assistance from experts at NIMHANS, Bengaluru, found the allegations uncorroborated and the child’s account unreliable, the Supreme Court quashed the criminal proceedings and said safeguards were necessary to prevent children from becoming instruments in parental conflict.

No automatic arrests

The court made it clear that its directions were not intended to dilute the protection available to genuine victims under the POCSO Act. Instead, the safeguards were aimed at cases arising from matrimonial or custody disputes where police do not have clear material and are faced with the question of whether there is sufficient “reason to believe” that an accused parent or family member should be arrested.

In such circumstances, the investigating officer or Special Juvenile Police Unit will have to engage an expert in child and adolescent psychiatry or clinical psychology, in consultation with the District Child Protection Unit. The expert will independently interact with and evaluate the child, after which the report must be considered alongside the other evidence before police decide whether coercive action, including arrest, is warranted.

The court also cautioned against hasty or routine arrests, stressing that investigators must satisfy the legal requirements governing arrest under the Bharatiya Nagarik Suraksha Sanhita. The existence of a serious allegation alone cannot substitute the investigating officer’s obligation to examine whether the circumstances legally justify taking a person into custody.

Court flags ‘win at any cost’ approach

The Bench expressed concern over what it described as an increasing tendency to introduce allegations of child sexual abuse into acrimonious matrimonial litigation. It observed that parents consumed by hostility could sometimes be encouraged to pursue a “win at any cost” strategy without appreciating the consequences for the child at the centre of the dispute.

The consequences, the court said, extended beyond the accused parent facing arrest, public humiliation and prolonged criminal proceedings. A child exposed to sustained parental conflict and competing narratives of abuse could suffer serious psychological consequences, making the child’s welfare central to the safeguards ordered by the court.

The Bench said false allegations could serve two purposes in a matrimonial battle — keeping the accused spouse and family members entangled in criminal proceedings for a considerable period and influencing the parallel battle over guardianship or custody. At the same time, the court’s directions require scrutiny in defined circumstances rather than treating POCSO complaints arising from matrimonial disputes as inherently suspect.

Safeguard for private complaints too

The Supreme Court extended the safeguard beyond cases initially investigated by police. Where a parent directly approaches a POCSO special court with a private complaint during a matrimonial or custody dispute, the judge will also have to obtain an expert evaluation of the child in the specified circumstances before deciding whether to take cognisance and summon the accused.

The directions are intended to ensure that the criminal justice process does not become an instrument for gaining leverage in a family dispute while preserving the law’s ability to act decisively where evidence indicates sexual abuse. The Bench stressed the need to protect children without subjecting an accused parent to unwarranted incarceration on the strength of allegations that have not undergone basic scrutiny.

CBI probe changed course of case

The guidelines emerged from a protracted custody dispute involving an estranged couple whose marriage had been dissolved in 2023. After the father secured custody rights, the mother lodged an FIR in March 2024 alleging aggravated sexual assault of their daughter by the father and his family members.

Given the sensitivity of the allegations, the Supreme Court transferred the investigation to the CBI earlier this year. A specialised team, working with child psychiatrists from NIMHANS, examined years of CCTV footage, conducted forensic interviews and clinically evaluated the child before concluding that the allegations were uncorroborated and the testimony could not be considered reliable or trustworthy.

Accepting the findings, the Supreme Court quashed the POCSO proceedings and concluded that the criminal case had been used to defeat earlier custody orders. It restored legal custody to the father while directing the family court in Bengaluru to supervise the child’s phased reintegration with him under expert guidance, keeping the child’s welfare at the centre of the process.

Directions to reach every police station

The Supreme Court directed its Registry to send the judgment to the chief secretaries of all states and Union Territories so that the safeguards could be circulated to police stations across the country. Copies are also to be forwarded to High Courts for circulation among criminal and family courts.

The ruling seeks to navigate a particularly difficult intersection of child protection and matrimonial litigation — ensuring that credible allegations of sexual abuse are investigated with the seriousness mandated by POCSO while creating checks against criminal proceedings being deployed as tactical weapons in custody battles.