Sheetal Vasant Thakur vs Chirag Arora

2026 INSC 638
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NOS. OF 2026
(@ SPECIAL LEAVE PETITION (CIVIL) NOS.18701-18702 OF 2024)


SHEETAL VASANT THAKUR ...APPELLANT(S)

VERSUS

CHIRAG ARORA …RESPONDENT(S)

J U D G E M E N T

NONGMEIKAPAM KOTISWAR SINGH, J.
“There can be no keener revelation of a society’s soul than the way
in which it treats its children”
- Nelson Mandela
Leave granted
2. The present civil appeal arising out of Special Leave
Petition (Civil) 18701-18702, filed by the mother of the child now
about 10 years, is directed against (i) the order dated 27.04.2023,
passed by the High Court of Judicature at Bombay in I.A. No.
Signature Not Verified
Digitally signed by
MINI
Date: 2026.06.11
16:56:49 IST
Reason:
4119/2023 in Writ Petition No. 7315/2022, modifying its earlier
direction for appointment of a single independent expert by
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substituting the expression “expert” with “panel of experts”; and
(ii) the subsequent interim order dated 07.12.2023, passed in
Writ Petition No. 7560/2023, whereby the High Court itself
constituted a four-member panel of experts, including
professionals suggested by the father and experts situated
outside Jalgaon and even outside India, to evaluate the minor
child for purposes of facilitating reconnection with the
Respondent-father.
3. The controversy before this Court lies at the intersection of
two competing concerns. On one hand stands the claim of a
parent seeking restoration of access and reconnection with the
child; on the other stands the obligation of constitutional courts
to ensure that a child who is already in a fractured family because
of the discord and temporary separation of the parents, is also
allegedly a victim of sexual abuse by her own father, is not
subjected to processes which may aggravate the trauma and
compromise emotional recovery of the child. The issue, therefore,
is not merely one concerning custody or visitation rights, but
concerns the manner in which the justice delivery system must
respond to and engage with a child victim while balancing
welfare, dignity, psychological safety and procedural fairness.
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BACKGROUND FACTS:
4. Before adverting to the legality and correctness of the
impugned orders passed by the High Court, it would be apposite
to briefly recapitulate the factual background giving rise to the
present proceedings.
5. The marriage between the Appellant – wife and the
Respondent – husband was solemnized on 10.02.2015 at
Faridabad, Haryana according to Hindu rites and ceremonies.
The marriage was thereafter registered on 30.05.2015 at
Faridabad after which they moved to the United States of
America. Out of the wedlock, a daughter, hereinafter referred to
as “the minor child”, was born on 24.06.2016 in New Jersey,
USA.
6. It is the case of the Appellant that during the period 2018–
2019, while the parties were residing in the USA, the Respondent
subjected the Appellant to physical abuse and the minor child to
sexual abuse. It has been alleged that the minor child when she
was about 2 (two) years was subjected to sexual abuse by her
father -Respondent. According to the Appellant, following an
incident of domestic assault which occurred on 29.12.2019,
proceedings came to be initiated before the New Jersey Police
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authorities against the Respondent. Apprehending danger to her
life and safety, the Appellant returned to India on 30.12.2019
along with the minor child.

Thereafter, after returning to India, the Appellant served a
notice to the Respondent on 18.01.2020 seeking divorce by
mutual consent and seeking Rs.2.77 crores as part of the
settlement.
7. Thereafter, disputes arose between the Appellant and the
Respondent concerning custody and access to the minor child.
On 05.06.2020, the Respondent instituted a writ petition, Writ
Petition (Civil) No.479 of 2020 before this Court seeking issuance
of a writ of Habeas Corpus for custody of the minor child. The
said proceedings, however, came to be dismissed as withdrawn
on 20.07.2020 with liberty given to the Respondent to avail
appropriate remedies. Thereafter, the Respondent filed a Habeas
Corpus petition, being Civil WP No.92 of 2021 before the Bombay
High Court and the High Court by subsequent orders dated
03.09.2020 and 10.09.2020 directed limited access to the
Respondent through video conferencing for interacting with the
minor child. While filing her response to the said writ petition,
the Appellant also raised the issue of sexual abuse allegedly
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perpetrated by the Respondent on the child. A complaint in that
regard was also filed by the Appellant against the Respondent on
24.10.2020 with the Yerwada Police Station, Pune.
8.
In the meanwhile, on 07.11.2020, the Appellant instituted
proceedings under Sections 12 and 17 to 23 of the Protection of
Women from Domestic Violence Act, 2005 (DV Act), before the
Judicial Magistrate First Class, Pune by filing Criminal M.A.
No.3266 of 2020. Subsequently, on 04.12.2020, the Appellant
also instituted proceedings seeking dissolution of marriage under
Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955.
9. On 10.02.2021, the Family Court directed continuation of
custody of the minor child with the Appellant. The Family Court
further directed the Respondent to cooperate with the Appellant
in obtaining the visa/OCI documentation of the minor child to
facilitate the continued stay of the child in India.
10. The said Writ Petition (Crl.) 92/2021 was disposed of by
the High Court, vide its order dated 08.06.2021, by granting
limited video access to the Respondent for a period of three
months.
11. On 12.04.2021, pursuant to the complaint lodged by the
Appellant, a Zero FIR No.0210 of 2021 came to be registered at
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Yerwada Police Station, Pune against the Respondent under
Sections 376, 376(2)(n), 323, 504 and 506 IPC and Sections 4,
5(l), 5(n) and 6 of the POCSO Act. Thereafter, on 22.05.2021,
another FIR being FIR No.315 of 2021 came to be registered at
Faridabad Police Station, Haryana under the same provisions of
law.
12. On 31.08.2021, the Appellant instituted a writ petition,
Writ Petition (Criminal) No.375 of 2021 before this Court seeking
transfer and clubbing of the aforesaid two FIRs. This Court, by
order dated 21.02.2022, directed that investigation in both the
FIRs be conducted at Yerwada Police Station, Pune under the
supervision of a woman ACP officer.
13. In the meanwhile, on 21.06.2021, the Respondent moved
an application before the Family Court, Pune seeking one-hour
virtual access to the child on her birthday i.e. 24.06.2021. The
Family Court, by order dated 23.06.2021, rejected the said
application while granting liberty to the Respondent to apply
afresh after a period of six months if circumstances so warranted.
14. Thereafter, on 24.09.2021, the Respondent again
approached the learned Family Court seeking interim custody
and virtual access to the child. Subsequently, on 13.12.2021,
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another application under Section 151 of the Code of Civil
Procedure, 1908 (CPC) came to be filed by the Respondent
claiming change in circumstances and seeking visitation rights.
15.
During the pendency of Writ Petition (Criminal) No.375 of
2021 before this Court, the Respondent moved an application
inter alia seeking visitation rights and appointment of an expert
to interact with the parties and evaluate the circumstances
concerning the child. This Court, however, declined the reliefs
prayed for and granted liberty to the Respondent to approach the
appropriate forum.
16. Pursuant thereto, on 10.03.2022, the Respondent filed an
Application (Exh.45) under Section 151 CPC before the Family
Court, Pune seeking a direction to “Appoint an independent
Psychiatric expert specializing in Child Psychology to evaluate the
Applicant’s daughter, her current living situation and both parents
towards reestablishing connection of the Applicant with his
daughter”.
17. The Appellant filed detailed objections to the aforesaid
application contending, inter alia , that:
(i) the Respondent was facing serious charges
under the POCSO Act involving the minor child;
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(ii) the child was already undergoing therapeutic
sessions with Dr. Mridula Apte, an experienced therapist
and clinical psychologist;
(iii) subjecting the child to further psychiatric evaluation
would adversely affect the mental well-being of the child;
and
(iv) the statutory framework of the POCSO Act
contemplated insulation of the child victim from further
exposure to the accused.
18. The Family Court, Pune, by a detailed order dated
28.04.2022, rejected the Respondent’s application seeking
appointment of an independent psychiatric expert. The Family
Court observed, inter alia, that:
(i) conditions have not improved between the parties, the
Appellant and the Respondent and there is no indication
that there is possibility of such improvement in near
future.
(ii) serious allegations under the POCSO Act had been
levelled against the Respondent;
(iii) exposing the child to the Respondent would be
hazardous;
(iv) there was no change in circumstances warranting
reconsideration of access;
(v) the child was already undergoing therapeutic
treatment under Dr. Mridula Apte; and
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(vi) until conclusion of the POCSO proceedings, it would
not be appropriate to permit access even indirectly through
the process of psychiatric evaluation.
The Family Court, accordingly, held that there is no need
of an independent child psychiatrist to assess the situation of
the child only for visitation at this stage.
19. Aggrieved thereby, the Respondent instituted Writ Petition
No.7315 of 2022 before the High Court of Judicature at Bombay
challenging the aforesaid order of the Family Court rejecting his
plea for appointment of an independent child psychiatrist.
20. The High Court, by judgment and order dated 07.01.2023,
while not substantially interfering with the order of the Family
Court, partly allowed the writ petition and held that the adverse
report of Psychologist Dr. Mridula Apte appointed by the
Appellant would not denude the court of its power to appoint an
independent expert to evaluate the child in the context of right of
custody involved between the parties.
The High Court also observed that the apprehension
expressed by the Family Court regarding exposure of the child to
the Respondent accused was misplaced, since mere evaluation
by an expert did not necessarily entail direct contact between the
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child and the Respondent-father and the Family Court can
consider the request of the Respondent for custody at an
appropriate stage on consideration of relevant materials that may
be placed before the Court.
21. Consequently, the High Court vide order dated 07.01.2023
directed the Family Court to appoint an independent expert
specialized in child psychology at Jalgaon, preferably from the
panel of experts maintained at District Court, Jalgaon, or any
other independent child psychologist or medical expert in that
field at the discretion of the Family Court.
It was also directed that the independent expert appointed
by the Family Court would be at liberty, if considered necessary,
to hold meeting with husband and wife and both of them shall
cooperate with such expert.
These directions were issued in terms of the relief claimed
by the Respondent before the Family Court as reproduced in para
16 above.
22. The Respondent thereafter instituted Special Leave
Petition (Civil) No.2996 of 2023 before this Court challenging the
aforesaid judgment dated 07.01.2023 passed by the High Court.
This Court, by order dated 17.02.2023, declined to interfere with
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the order passed by the High Court but granted liberty to the
Respondent to move an application before the High Court
regarding suggestion of experts for implementation of the
directions contained in the order dated 07.01.2023 of the High
Court.
23. Thereafter, in April 2023, the Respondent filed I.A.
No.4119 of 2023 in Writ Petition No. 7315/2022, before the High
Court, inter alia , contending that experts possessing the requisite
specialization were unavailable at Jalgaon and further seeking
appointment of a panel of experts from a list collated by the
Respondent himself. The application also referred to specialists
dealing with “parental alienation syndrome” and “false memory
creation”.
24. Pursuant to the aforesaid application, the High Court, by
the impugned order dated 27.04.2023, modified its earlier order
dated 07.01.2023 and substituted the expression “expert” with
the expression “panel of experts”. The High Court observed that
no rights of the Appellant would be affected by such substitution
and accordingly, directed that the Family Court may appoint an
independent panel of experts specialized in child psychology.
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25. Subsequently, on 08.05.2023, the Respondent filed
another application before the Family Court seeking appointment
of experts from a revised panel proposed by him, which included
experts situated outside the State of Maharashtra and one expert
based in the USA.
26. Thereafter, while hearing Writ Petition No.7560 of 2023
filed by the Respondent seeking virtual access to the child, the
High Court, by the second impugned order dated 07.12.2023,
proceeded to constitute a four-member panel comprising Dr.
Anjali Chhabria, Dr. Kamala London, Dr. Yajyoti Singh and Dr.
Bhooshan Shukla for evaluation of the minor girl child.
27. The aforesaid empanelment was with reference to the
original relief claimed by the Respondent to appoint an
independent Psychiatric expert specialising in Child Psychology
to evaluate the minor child, her current living condition and both
the parents towards re-establishing connect of the Respondent
with the minor daughter.
28. It is the grievance of the Appellant that the impugned
orders passed by the High Court would have the effect of
subjecting the minor child, who is the victim in the pending
proceedings under the POCSO Act, to repeated and intrusive
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psychological evaluation by multiple experts at the instance of
the accused parent, thereby exposing the child to avoidable re-
traumatisation and psychological distress.
29.
Aggrieved by the aforesaid orders dated 27.04.2023 and
07.12.2023 passed by the High Court, the Appellant has
approached this Court by way of the present proceedings.
ISSUES INVOLVED:
30. Having noticed the factual backdrop which involves
proceedings under the POCSO Act, and the sequence of
proceedings culminating in the present appeal, the principal
controversy which now falls for consideration before this Court
concerns the legality and propriety of the directions issued by the
High Court permitting psychological evaluation of the minor child
by a panel of experts.
31. The present matter, in our considered view, however,
raises issues extending beyond the confines of an ordinary
custody or visitation dispute between the estranged parents. The
controversy before this Court essentially centres around the
permissible limits of judicially-directed psychological evaluation
of a child victim in proceedings where issues of custody and
parental access intersect with allegations of sexual abuse under
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the POCSO Act. The question thus, is not merely confined to the
simple issue whether courts may seek expert assistance while
determining issues concerning welfare of a child; but a seminal
issue as to whether the process directed in the present case -
involving evaluation of the child by a panel of multiple experts, is
in accord with the principles of minimum intrusion, psychological
safety and child-centric adjudication which form the underlying
foundation of the statutory framework governing child victims.
32. The grievance of the Appellant substantially proceeds on
the premise that the impugned directions issued by the High
Court would have the effect of subjecting the minor child to
repeated and intrusive psychological scrutiny at the instance of
the accused parent, thereby exposing the child to further
emotional distress.
33. Accordingly, the Learned counsel appearing on behalf of
the Appellant has made the following submissions:
(i) That the impugned orders passed by the High Court
are contrary to the welfare, dignity and psychological well-
being of the minor child, who is allegedly a victim of an
offence under the POCSO Act;
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(ii) That the High Court committed a manifest error in
modifying its earlier direction for appointment of an
“independent expert” by substituting the same with a
“panel of experts” without recording any reasons
demonstrating necessity for such modification, which
would expose the child to repeated and intrusive
psychological evaluation by a team of experts and thus,
pose a serious risk of re-traumatisation and secondary
victimisation;
(iii) That the child had already undergone manifold
interactions with multiple agencies, investigating
authorities, counsellors, psychologists and judicial
authorities in the course of the criminal proceedings and
therefore, no further evaluative exercise involving multiple
experts was warranted;
(iv) That the process contemplated by the impugned
orders effectively converts psychological evaluation into an
adversarial exercise intended to debunk the allegations of
sexual abuse at the instance of the Respondent through
theories such as “parental alienation syndrome” and “false
memory creation”;
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(v) That the panel of experts was constituted
substantially from names suggested by the Respondent-
father, thereby compromising the requirement of
institutional neutrality and independence;
(vi) That one of the experts constituting the panel was
based in the USA and another outside the local
jurisdiction, rendering the interactive process cumbersome
and unnecessarily burdensome upon the child;
(vii) That even assuming psychological evaluation was
considered necessary, the appropriate course would have
been the appointment of one independent trauma-
informed child psychologist rather than a panel of multiple
experts;
(viii) That the impugned orders are inconsistent with
Sections 24, 33(5), 36 and 39 of the POCSO Act which
mandate child-friendly procedures and protection of the
child from unnecessary exposure during judicial
processes; thus, failed to apply the principle of minimum
intrusion and intention while dealing with a child victim;
(ix) That the High Court failed to accord due weight to the
findings recorded by the Family Court in its order dated
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28.04.2022 wherein the Family Court had specifically
observed that exposing the child to further evaluative
processes may be harmful and contrary to her welfare.
34. On the other hand, the Respondent has sought to justify
the impugned directions by contending that expert evaluation of
the child is necessary to facilitate possible restoration of
emotional connect between the child and the Respondent and to
aid adjudication of issues concerning access and visitation.
35. Learned counsel appearing on behalf of the Respondent-
father has, accordingly, made the following submissions:

(i) That the allegations under the POCSO Act are false,
fabricated and motivated by matrimonial discord between
the parties and that the Appellant has alienated the child
from the Respondent-father by making malicious
allegations;
(ii) That no allegation of child sexual abuse was
immediately raised either before the authorities in the USA
or immediately after the Appellant returned to India in
December 2019, and such allegations were raised only
subsequently after initiation of access proceedings by the
Respondent;
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(iii) That the Respondent has consistently sought
appointment of experts only with the objective of
facilitating restoration of emotional bonding and reconnect
between the father and the minor child;
(iv) That the application seeking expert evaluation was
never intended to harass the child or conduct an
adversarial inquiry but was motivated solely by concern for
the welfare of the child;
(v) That the Respondent merely sought evaluation by
qualified professionals possessing expertise in child
psychology, parental alienation and child trauma so as to
assess the present psychological condition of the child and
facilitate reconnection between the father and daughter;
(vi) That the Appellant herself had participated in the
process of suggesting names of experts before the Family
Court and therefore, cannot now challenge the constitution
of the panel;

(vii) That the order dated 07.01.2023 of the High Court
directing appointment of an independent expert was never
challenged by the Appellant and had attained finality;
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(viii) That the subsequent order dated 27.04.2023
modifying the expression “expert” to “panel of experts” was
passed pursuant to liberty granted by this Court while
disposing of Special Leave Petition (Civil) No.2996 of 2023;
(ix) That continuation of the evaluative process directed
by the High Court is necessary in the best interests of the
child and for restoration of the child’s relationship with her
father.
36. In the aforesaid backdrop, the following questions arise for
determination before this Court:

(i) Whether the High Court was correct in modifying its
earlier order dated 07.01.2023 by substituting the
expression “independent expert” with the expression
“panel of experts” for evaluation of the minor child?
(ii) Whether the impugned directions satisfy the settled
principle that the welfare, dignity and best interest of the
child constitute the paramount consideration in all
proceedings concerning minors?
(iii) Whether repeated or multiple psychological
evaluations of a child victim, particularly in the backdrop
of pending criminal proceedings alleging sexual abuse,
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carry the potential of causing re-traumatisation and
secondary victimisation inconsistent with child-centric
judicial procedures?

(iv) Whether constitution of a panel of multiple
psychologists and medical professionals for evaluation of
the child victim is consistent with the statutory framework
and protective object underlying the POCSO Act?
(v) Whether the High Court, in constituting the panel of
experts substantially from names suggested by one of the
litigating parties failed to consider the requirement of
institutional neutrality and independence of the evaluative
process?
37. The aforesaid questions, in our considered view, cannot be
examined merely from the perspective of competing parental
rights. The controversy necessarily requires this Court to adopt a
child-centric approach, consistent with the constitutional
obligation of courts to preserve the dignity, emotional security
and psychological well-being of child victims participating in
judicial processes.
38. It is by now well-settled that in matters concerning
custody, access, the rights and claims of litigating parents remain
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subservient to the paramount consideration of the welfare and
best interest of the child. The said principle acquires even greater
significance where the child is an alleged victim under the POCSO
Act, and the judicial process itself carries the potential of
exposing the child to further trauma or emotional harm.
39. We shall, therefore, proceed to examine the aforesaid
issues in the light of the statutory framework governing child
victims under the POCSO Act, the principles underlying child-
centric criminal jurisprudence and the law governing welfare of
minors, thus recognising in the present case centrality of the best
interests of the child.
ANALYSIS BY THIS COURT:
40. At the outset, it must be clarified that the controversy in
the present case does not arise directly out of adjudication under
the POCSO Act, nor are we presently concerned with
determination of criminal culpability in the pending prosecution
against the Respondent. The dispute before this Court principally
arises in the context of custody, visitation and psychological
evaluation of a minor child. Unfortunately, the child in question
is also an alleged victim at the hands of the Respondent in
connection with which there is a proceeding pending under the
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POCSO Act and therefore, the statutory framework underlying
the said enactment cannot be ignored while examining the
legality and propriety of the impugned directions issued by the
High Court.
41. The significance of the POCSO Act lies not merely in the
creation of substantive offences relating to child sexual abuse,
but equally in its recognition that the justice delivery process
itself must remain child-sensitive, trauma-informed, child
friendly and protective of the psychological well-being of the child
victim. The enactment represents a conscious legislative
departure from the conventional adversarial criminal procedures
insofar as children are concerned. The statute proceeds on the
foundational premise that a child who has allegedly suffered
sexual abuse must not be exposed to processes capable of
causing further emotional harm, humiliation or secondary
victimisation.
42. It is, therefore, necessary before examining the correctness
of the impugned orders, to advert to the broader statutory
philosophy and architecture underlying the POCSO Act and the
child-friendly procedural safeguards embodied therein, not for
the purpose of mechanically importing provisions of the criminal
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procedure into custody proceedings, but to derive doctrinal
guidance concerning the manner in which courts must engage
with child victims participating in judicial processes even in
custodial proceedings like custody, visitation right of the parents.
43. Section 24 of the POCSO Act mandates that the statement
of a child is to be recorded in a child-friendly manner by police
officers specially trained for such purpose and, significantly,
without exposing the child to fear, intimidation or distress.
The legislative emphasis is, therefore, not confined merely
to collection of evidence, but extends equally to preservation of
the emotional and psychological security of the child throughout
the process especially when it involves interaction with the child.
44. Equally significant is Section 33(5) of the POCSO Act which
obligates the Special Court to ensure that the child is not called
repeatedly to testify in court. The principle underlying the
provision is of considerable importance. The legislature, while
framing the statutory scheme, consciously recognised that
repeated engagement of a child victim in legal processes may
itself result in re-traumatisation and emotional injury. The
provision embodies what may broadly be described as the
principle of minimum exposure and minimum re-traumatisation.
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45. Section 36 of the POCSO Act further stipulates that the
child should not be exposed to the accused at the time of
recording of evidence and empowers the Court to adopt
appropriate measures to ensure that the child remains
comfortable and psychologically secure during proceedings.

46. Similarly, Section 39 of the POCSO Act contemplates
provision of support persons, interpreters, experts and other
assistance necessary to safeguard the welfare, dignity and
psychological well-being of the child during the course of
proceedings.
47. The statutory framework, when viewed holistically, thus
reveals a consistent legislative intent to ensure that legal
procedures involving child victims are child friendly and do not
themselves become stressful and instruments of psychological
distress. The object of the enactment is not merely punitive.
Equally, and perhaps more fundamentally, the legislation seeks
to preserve the dignity, emotional integrity and mental well-being
of the child throughout the process of engagement with the justice
system.
48. This Court has also, on multiple occasions, emphasized the
need for child-sensitive judicial processes in matters involving
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allegations of sexual abuse against minors. In Sakshi v. Union
1
of India , this Court recognised that repeated exposure of child
victims to intimidating judicial procedures may itself aggravate
trauma suffered by the child and issued a slew of directions to be
followed while recording of statement/examining a child victim in
the court to prevent any traumatization in the process.
This Court acknowledged the profound psychological impact
which judicial processes themselves may have upon victims of
sexual offences, particularly children. The decision is significant
not merely for the procedural safeguards specifically directed
therein, but for the broader doctrinal recognition that
preservation of the psychological well-being and emotional
security of the child and prevention of any further trauma
constitute integral components of fair and child-centric
adjudication.
49. The jurisprudential thread running through Sakshi
(supra) , as also the statutory framework of the POCSO Act, is
that while the child remains at the centre of the process, she
must be kept insulated from the stressful process. The justice

1
(2004) 5 SCC 518
Page 25 of 65

delivery system cannot treat the child as a mere evidentiary object
subjected to repeated forensic or psychological scrutiny at the
instance of contesting litigants. The psychological integrity of the
child constitutes an independent and paramount consideration
which courts are duty-bound to preserve.
50. Having examined the statutory framework underlying the
POCSO Act and the child-sensitive procedural safeguards
embodied therein, it now becomes necessary to advert to the
broader principles governing child welfare and trauma-informed
adjudication which have consistently informed judicial decision-
making process in matters concerning minors especially dealing
with custodial and visitation rights of the parents.
51. Through a series of judgments, this Court has laid down
firmly that welfare of the child is the overarching and the
determining factor even in matters relating to custodial and
visitation rights of the parents. All other factors are subservient
to the welfare of the child.
2
This Court in Gaurav Nagpal vs. Sumedha Nagpal ,
after a survey of law in this country as well as in foreign

2
(2009) 1 SCC 42
Page 26 of 65

jurisdictions, affirmed that child welfare is the paramount
consideration and also highlighted the legal proposition of parens
patriae jurisdiction of the court for the welfare of the child. This
Court even went to the extent of ignoring orders of foreign courts
by keeping the welfare of the child as the paramount
consideration.
3
In Yashita Sahu vs. State of Rajasthan and Others ,
and Rajeswari Chandrasekar Ganesh vs. State of Tamil
4
Nadu this Court held that though this Court will accord
substantial weight to foreign custody orders, it will be like other
factors which will be subordinate to the prime consideration of
the welfare of the child. Comity or first strike consideration will
be subordinate to the welfare of child, affirming the supremacy of
the child welfare principle. We may not burden ourselves any
further with the numerous decisions in this regard in reiterating
the dominant principle of the welfare of the child.
52. In Gaurav Nagpal ( supra ) this Court emphasised that
welfare must be understood in the widest sense, from moral and
ethical perspectives keeping in mind physical, emotional and

3
(2020) 3 SCC 67
4
(2023) 12 SCC 472
Page 27 of 65

educational needs of the child. In other words, all those factors
which are conducive to the physical, moral and intellectual
development of the child, and not merely confined to material
aspects, must be taken into consideration by the court. In the
aforesaid case, this Court also considered the conduct of the
parents, psychological impact on the child which may result
because of tutoring by either of the parents etc. in seeking to
ascertain what would be in the best interest of the child.
This Court observed in Gaurav Nagpal ( supra ) as follows:-
“ 50 . When the court is confronted with conflicting demands
made by the parents, each time it has to justify the demands.
The court has not only to look at the issue on legalistic basis,
in such matters human angles are relevant for deciding those
issues. The court then does not give emphasis on what the
parties say, it has to exercise a jurisdiction which is aimed
at the welfare of the minor. As observed recently in Mausami
5
Moitra Ganguli case , the court has to give due weightage
to the child’s ordinary contentment, health, education,
intellectual development and favourable surroundings but
over and above physical comforts, the moral and ethical
values have also to be noted. They are equal if not more
important than the others.
51
. The words “welfare” used in Section 13 of the Act has to
be construed literally and must be taken in its widest sense.
The moral and ethical welfare of the child must also weigh
with the court as well as its physical well-being. Though the
provisions of the special statutes which govern the rights of
the parents or guardians may be taken into consideration,
there is nothing which can stand in the way of the court
exercising its parens patriae jurisdiction arising in such
cases.”


5
(2008) 7 SCC 673
Page 28 of 65

53. In the light of the above position we can say that emotional
stability, psychological security, dignity and mental health
constitute vital components of the concept of the welfare of the
child. Consequently, any such factors which may impede and
seen to be disruptive to the welfare of the child must be abjured
while considering the welfare of the child. Any process which
leads to the detriment of the welfare of the child must be avoided
by the court while passing orders relating to the
custody/visitation rights claimed by any of the parents. The
court is required to remain responsive not merely to the legal
consequences but also the impact which the judicially ordained
process may have upon the welfare of the child.
54. In the present case because of the separation of the
parents from an early stage of childhood, it cannot be denied that
she has been deprived of the warmth of the family where both the
parents would unconditionally shower their love, affection and
care on the child. She must have been a witness to bitter verbal
duel between her parents, if not any physical confrontation. At
the same time, the child will not be in a position to understand
who is responsible for the separation of the parents or the discord
in the family. But she would certainly feel the void or the absence
Page 29 of 65

of unqualified attention from both the parents. The child is also
sometimes unable to take sides with either of the parents which
puts a strain on her. Thus, irrespective of the charge of sexual
abuse hurled against the father which allegedly took place when
the child was about 2/3 years old, the child is already undergoing
a traumatic experience for the discord between the parents, for
which it appears the child is receiving therapeutic treatment from
a child psychologist. Under these circumstances, the alleged
sexual abuse by the father which is stated to the pending before
the competent court would certainly have added additional
psychological stress on the child, to which aspect also this Court
has to give due consideration. We are informed that the
Respondent was granted anticipatory bail by the Bombay High
Court in Anticipatory Bail Application No. 1332 of 2024 on
13.06.2024 in connection with the POCSO case registered
against him. We have also perused the said anticipatory bail
order and the circumstances under which the Respondent was
granted anticipatory bail by the High Court. This element of
POCSO case against the Respondent obviously has added an
unpleasant dimension to the present proceeding and placed an
onerous responsibility on the Court while dealing with this
Page 30 of 65

matter. Thus, where a child who is already undergoing certain
trauma because of the rupture in the family and deprived of
undivided love, affection and care from both the parents, and
when there is also allegation of sexual abuse by her own father,
if she is going to be subjected to further investigation at the hands
of psychologists as proposed to be done by the impugned orders,
we must seriously examine as to whether such a course of action
by virtue of the judicial orders may lead to “secondary
victimisation” and “re-traumatisation”, would be desirable or not.
In short, will this judicially ordained process be in the best
interest of the child?
55. Courts must remain alive to the distinction between
therapeutic engagement intended to support healing and
recovery of the child, and repeated evaluation as part of
adversarial processes undertaken in aid of litigation to vindicate
the claim of the rival parties, which may prove to be highly
stressful causing mental and emotional strain on the child. While
the former may, in appropriate cases, aid the emotional
rehabilitation of the child, the latter carries the potential of
converting the child into an object of continuous forensic scrutiny
to satisfy the claim of the parents and an unintended casualty in
Page 31 of 65

the legal tug of war between two bickering parents. The justice
delivery system must, therefore, guard against any process which
has the effect of prioritizing adversarial claims of litigating parties
over the emotional safety and psychological integrity of the child,
thus, compromising with the welfare of the child.
56. The principle that the child must not be unnecessarily
exposed to repeated legal or quasi-legal processes has now
become an integral component of child-centric adjudication. The
doctrine of “best interest of the child” cannot be confined to
determining ultimate safe custody arrangements alone; it must
also address the procedural architecture through which courts
engage with the child during the pendency of proceedings.
Judicial procedures themselves must, therefore, conform to
standards of sensitivity, minimum intrusion and psychological
safety of the child.
57. This Court has repeatedly emphasized that in matters
concerning minors, the child cannot be treated as a passive
subject of litigation. The Court, while exercising jurisdiction in
such matters, rather, exercising parens patriae jurisdiction,
bears an independent and overriding obligation to protect the
dignity and welfare of the child irrespective of the competing
Page 32 of 65

positions adopted by the parties. Consequently, even where one
or both parents seek evaluative or therapeutic intervention, the
Court must independently assess whether the proposed process
is genuinely necessary, proportionate and conducive to the
welfare of the child.
58. It must also be recognised that the impact of psychological
evaluation upon a child cannot be assessed merely by reference
to the formal nature of the process. The number of professionals
interacting with the child, the frequency of sessions, the context
in which such evaluation is undertaken, and the surrounding
adversarial environment may collectively influence the emotional
experience of the child. A process which may appear clinically
benign in abstraction may nevertheless become psychologically
stressful when situated within ongoing contentious litigation
involving allegations of abuse by one of the parents.
59. This Court in “Thrity Hoshie Dolikuka v. Hoshiam
6
Shavaksha Dolikuka , cautioned that repeated interviews
conducted with the tender minor mind and resultant strain can
adversely affect the welfare of the child. It was thus, observed as
follows:

6
(1982) 2 SCC 544
Page 33 of 65

“26 . In the facts and circumstances of this case we are
however, not inclined to interview the minor daughter, as
we are satisfied in the present case that the minor is not fit
to form an intelligent preference which may be taken into
consideration in deciding her welfare. We have earlier set
out in extenso the various orders passed by the various
learned Judges of the Bombay High Court after interviewing
the minor and the learned Judges have recorded their
impressions in their judgments and orders. The impressions
as recorded by the learned Judges of the Bombay High
Court, go to indicate that the minor has expressed different
kinds of wishes at different times under different
conditions. It also appears from the report of the Social
Welfare Expert that these interviews cast a gloom on the
sensitive mind of the tender girl and caused a lot of strain
and depression on her. Torn between her love for both her
parents and the acrimonious dispute between them
resulting in the minor being dragged from court to court, we
can well appreciate that the sensitive mind of the minor girl
is bound to be sadly affected. Though the girl is quite bright
and intelligent as recorded by the learned Judges of the
Bombay High Court in their orders after their interviews
with the girl who is of a tender age and is placed in a very
delicate and embarrassing situation because of the
unfortunate relationship and litigation between her parents
for both of whom she has great deal of affection, she is not
in a position to express any intelligent preference which will
be conducive to her interest and welfare. Mature thinking is
indeed necessary in such a situation to decide as to what
will ensure to her benefit and welfare. Any child who is
placed in such an unfortunate position, can hardly have the
capacity to express an intelligent preference which may
require the court's consideration to decide what should be
the course to be adopted for the child's welfare. The letters
addressed by the daughter to her mother from Panchgani
and also a letter addressed by her to her aunt (father's
sister) also go to show that the minor cannot understand her
own mind properly and cannot form any firm desire. We feel
that sending for the minor and interviewing her in the
present case will not only not serve any useful purpose but
will have the effect of creating further depression and
demoralisation in her mind.”

60. Equally important is the requirement that judicially-
directed psychological processes retain institutional neutrality
and welfare orientation. The moment such evaluation begins to
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assume the character of an adversarial exercise intended to
validate or discredit allegations made by the child, the process
risks losing its therapeutic legitimacy and may undermine the
confidence, comfort and psychological safety of the child
participating therein.
61. Section 12 of the Family Courts Act, 1984 enables the
court to secure the services of a medical expert or such person,
whether related to the parties or not, including a person
professionally engaged in promoting the welfare of the families as
the court may think fit for the purpose of assisting the Family
Court in discharging its functions. Thus, though, the Act does
not prohibit seeking assistance of any person even if she is
related to the parties, ultimately, it is the court which has to
decide as to the steps that would be required to be taken to
ascertain what is in the best interest of the child and thereafter,
pass appropriate orders, more particularly in the context of
custody of child where the court exercises the parens patriae
jurisdiction. Hence, it would be desirable for the court to appoint
a neutral expert/psychologist, who may, however, interact with
the experts nominated by the parties if the court deems
appropriate.
Page 35 of 65

62. These principles, in our considered view, constitute the
broader doctrinal backdrop against which the legality and
propriety of the impugned directions issued by the High Court
are required to be assessed.
63. The first impugned order dated 27.04.2023 passed by the
High Court modified its earlier direction dated 07.01.2023 by
substituting the expression “independent expert” with the
expression “panel of experts”. The subsequent order dated
07.12.2023 thereafter proceeded to constitute a four-member
panel comprising of multiple psychologists and professionals for
evaluation of the minor child.
64. In our considered view, the approach adopted by the High
Court suffers from a fundamental flaw in so far as the Court failed
to sufficiently examine the effect which repeated and multi-
layered evaluative processes conducted by numerous evaluators
may have upon the psychological well-being of the child.
65. We are in consensus of the fact that the earlier order issued
by the High Court on 07.01.2023 for appointment of an
independent expert specialised in child psychology was not
challenged by the Appellant, and before the High Court the
Appellant also had proposed a panel of psychologists before the
Page 36 of 65

High Court passed the subsequent impugned order dated
27.04.2023. However, this legal hurdle for the Appellant may not
be come in the way when we are considering the welfare of the
child to be the most important consideration while dealing with
the impugned orders, especially when the court acts as the
parens patriae for the child.
66. Significantly, the original order dated 07.01.2023 had
directed appointment of “an independent expert specialized in
child psychology”. The emphasis in the original direction was
therefore, clearly on independence, neutrality and limited
intervention. However, by the subsequent order dated
27.04.2023, the High Court altered the very nature of the exercise
by substituting the singular expression “expert” with “panel of
experts”. This modification, in our considered opinion, cannot be
treated as a mere procedural or semantic alteration devoid of
substantive consequences. The distinction between evaluation by
one independent professional and repeated interaction with a
panel of multiple experts is significant and not merely
administrative in nature. The change directly bears upon the
extent of psychological exposure to which the child may
potentially be subjected to.
Page 37 of 65

67. We find from the impugned order dated 27.04.2023 that
the High Court proceeded on the premise that substitution of the
word “expert” with “panel of experts” would not prejudice the
rights of the Appellant. In our view, the inquiry ought not to have
been confined merely to the rights of the litigating parents. The
primary consideration before the Court ought to have been the
likely impact such modification may have upon the child herself,
thus, the High Court missed out on the centrality of the issue,
the welfare of the child.
68. The High Court, while directing constitution of a panel of
experts, also failed to record any reasons demonstrating:
(i) why evaluation by one independent expert was
inadequate;
(ii) why interaction with multiple professionals would be
necessary;
(iii) how the proposed process would comport with the
principle of minimum intrusion; and
(iv) whether the possibility of re-traumatisation had been
adequately considered.
69. The absence of such analysis assumes considerable
significance in the facts of the present case where the child is also
allegedly a victim under the POCSO Act and had admittedly
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undergone interactions with multiple agencies during the course
of investigation and related proceedings.
70. The principle underlying Section 33(5) of the POCSO Act,
though arising in the context of criminal trial, reflects a broader
recognition that repeated engagement of a child victim in legal
processes may itself become a source of trauma. The said
principle, though not mechanically applicable to custody
proceedings, nevertheless provides important doctrinal guidance
while evaluating processes involving repeated psychological
interaction with a child victim.
71. In our considered view, the High Court failed to adequately
appreciate that the process of psychological evaluation cannot be
viewed in sterile abstraction divorced from the surrounding
adversarial context in which such evaluation is sought. The
present proceedings arise out of intensely contested litigation
between two bitterly opposed parties coupled with pending
criminal prosecution alleging sexual abuse by the father against
the child.
72. We are also unable to overlook that the request for
constitution of a panel was substantially founded upon lists of
experts proposed by the Respondent-father himself. While parties
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may undoubtedly assist the Court by suggesting names of
professionals, as there is no legal bar to do so, the Court must
remain vigilant to preserve both actual and perceived
institutional neutrality of the evaluative process, particularly
where allegations of child sexual abuse are pending against the
proposer.
73. The requirement of neutrality in such cases is not a matter
of mere procedural formality. The child must not be placed in a
position where the evaluative process assumes the appearance of
an adversarial inquiry intended to validate or discredit allegations
made against either parent. The legitimacy of the process itself
depends upon the confidence that it remains strictly welfare-
oriented and independent of adversarial objectives.
74. We thus, find merit in the grievance of the Appellant that
the High Court, while constituting the four-member panel vide
order dated 07.12.2023, failed to record any reasons justifying:
(i) the necessity of constituting four separate experts;
(ii) the specific role to be performed by each expert;
(iii) the manner in which interaction with multiple
experts would serve the welfare of the child; or
(iv) the lack of safeguards necessary to prevent repetitive
psychological exposure.
Page 40 of 65

75. The impugned order dated 07.12.2023 also reveals that
one of the experts is based in the USA while another is situated
outside the local jurisdiction which will necessarily involve hybrid
mode of evaluation. The order does not reflect any consideration
as to whether such a dispersed and multi-layered evaluative
structure involving hybrid mode would itself become emotionally
burdensome for the child.
76. The Family Court, while rejecting the Respondent’s
application by order dated 28.04.2022, had specifically recorded
concerns regarding the grave nature of allegations levelled
against the Respondent, the possibility of harm to the child, the
fact that the child was already under therapeutic care, and the
absence of change in circumstances warranting reconsideration
of access. While the High Court was undoubtedly entitled to
independently examine the correctness of the aforesaid findings,
the impugned orders do not indicate any meaningful
consideration of the psychological consequences which may flow
from repeated evaluative exposure of the child.
77. We have already noted the important distinction between
therapeutic intervention intended for emotional support of the
child and evaluative exercises undertaken within an adversarial
Page 41 of 65

litigation framework. The former is child-centric and recovery-
oriented; the latter, if insufficiently regulated, risks converting
the child into a subject of continuing forensic scrutiny, merely to
satisfy the self-righteous claims of two wrangling couple.
78. At the same time, we are unable to accept the broad
proposition advanced on behalf of the Appellant that courts
exercising jurisdiction in custody or visitation matters are
altogether precluded from seeking expert psychological
assistance wherever allegations under the POCSO Act are
pending. Such an absolute rule may unduly restrict the ability of
courts to secure informed assistance in appropriate cases
involving welfare of children.
79. However, where such assistance is considered necessary,
the process adopted by the Court must satisfy the requirements
of demonstrable necessity, minimum intrusion, institutional
neutrality, proportionality, and paramount consideration of the
psychological well-being of the child.
80. In the facts of the present case, we find that the impugned
directions issued by the High Court fall short of the aforesaid
requirements.
Page 42 of 65

81. We are, therefore, of the considered opinion that the
impugned orders dated 27.04.2023 and 07.12.2023 passed by
the High Court cannot be invoked qua the child and hence, we
are inclined to modify the orders with certain conditions.
82. We are also of the view that the Court must not focus its
attention solely on the psychological assessment of the child but
must also bestow attention to the psychological assessment of
the parents. While it is important to make an assessment as to
how the child will respond to either of the parents, it is equally
important to ascertain the mental and psychological conditions
of the parents themselves to deal with the need of the growing
child. Thus, assessment of the psychological condition of both
the parents assumes importance before subjecting the child to
any further psychological assessment. Therefore, we deem it
desirable that psychological assessment of both the parents
without involving the child be also conducted. Such assessment
report on the parents in our view, will provide very pertinent
material inputs before the Family Court, while considering any
claim for access or visitation.
83. The child is stated to be presently staying with her mother
and also undergoing therapeutic treatment through a Child
Page 43 of 65

Psychologist. The Respondent has sought visitation right and
also access through video conferencing which had been denied
by the Family Court, perhaps on account of charges pending
against him under the POCSO Act. However, on the other hand,
the Respondent had expressed apprehension of the child being
tutored by the mother, thus, fearing that the child may be
developing “parental alienation syndrome” and ultimately become
a victim of “false memory creation”.
84. We are cognizant of the fact that “parental alienation
syndrome” is a plea normally invoked by a parent who does not
have custody of the child as has been noted by this Court in
7
Vivek Singh Vs. Romani Singh , wherein this Court discussed
the syndrome as follows:
“18 ……. This Court cannot turn a blind eye to the fact that
there have been strong feelings of bitterness, betrayal,
anger and distress between the appellant and the
respondent, where each party feels that they are “right” in
many of their views on issues which led to separation. The
intensity of negative feeling of the appellant towards the
respondent would have obvious effect on the psyche of
Saesha, who has remained in the company of her father, to
the exclusion of her mother. The possibility of appellant's
effort to get the child to give up her own positive perceptions
of the other parent i.e. the mother and change her to agree
with the appellant's viewpoint cannot be ruled out thereby
diminishing the affection of Saesha towards her mother.
Obviously, the appellant, during all this period, would not
have said anything about the positive traits of the
respondent. Even the matrimonial discord between the two
parties would have been understood by Saesha, as

7
(2017) 3 SCC 231
Page 44 of 65

perceived by the appellant. Psychologists term it as “The
Parental Alienation Syndrome” [The Parental Alienation
Syndrome was originally described by Dr Richard Gardner
in “Recent Developments in Child Custody Litigation”, The
Academy Forum, Vol. 29, No. 2: The American Academy of
Psychoanalysis, 1985]. It has at least two psychological
destructive effects:

(i) First, it puts the child squarely in the middle of a
contest of loyalty, a contest which cannot possibly be
won. The child is asked to choose who is the
preferred parent. No matter whatever is the choice,
the child is very likely to end up feeling painfully
guilty and confused. This is because in the
overwhelming majority of cases, what the child
wants and needs is to continue a relationship with
each parent, as independent as possible from their
own conflicts.
(ii) Second, the child is required to make a shift in
assessing reality. One parent is presented as being
totally to blame for all problems, and as someone
who is devoid of any positive characteristics. Both of
these assertions represent one parent's distortions of
reality.”

85. However, this Court also cautioned that courts ought not
prematurely and without identification of individual instances of
“alienating behaviour” label any parent as propagator and/or
potential promoter of such behaviour and as such, it cannot
attribute to any parent without proper identified materials as
discussed in Col. Ramneesh Pal Singh Vs. Sugandhi
8
Aggarwal :
“ 20. PAS is a thoroughly convoluted and intricate
phenomenon that requires serious consideration and
deliberation. In our considered opinion, recognising and
appreciating the repercussions of PAS certainly shed light
on the realities of long-drawn and bitter custody and divorce
litigation(s) on a certain identified sect of families, however,
it is equally important for us to remember that there can no

8
(2024) SCC online 847
Page 45 of 65

straitjacket formula to invoke the principle laid down by this
Court in Vivek Singh (Supra).

21 . The role of a Court vis-à-vis allegation(s) of PAS came to
be considered recently by an English Court i.e., the High
Court of Justice Family Division in Re C (‘parental
alienation’; instruction of expert), [2023] EWHC 345 (Fam).
Pertinently, the Court reflected on the changing narrative in
relation to PAS - placed before the Court therein, by an
expert body i.e., the Association of Clinical Psychologists -
UK (“ACP”) and thereafter observed as under:

“103. Before leaving this part of the appeal, one
particular paragraph in the ACP skeleton argument
deserves to be widely understood and, I would
strongly urge, accepted:
‘Much like an allegation of domestic abuse; the
decision about whether or not a parent has alienated
a child is a question of fact for the Court to resolve and
not a diagnosis that can or should be offered by a
psychologist. For these purposes, the ACP-UK wishes
to emphasise that “parental alienation” is not a
syndrome capable of being diagnosed, but a process
of manipulation of children perpetrated by one parent
against the other through, what are termed as,
“alienating behaviours”. It is, fundamentally, a
question of fact.’
It is not the purpose of this judgment to go further into
the topic of alienation. Most Family judges have, for
some time, regarded the label of ‘parental alienation’,
and the suggestion that there may be a diagnosable
syndrome of that name, as being unhelpful. What is
important, as with domestic abuse, is the particular
behaviour that is found to have taken place within the
individual family before the court, and the impact that
that behaviour may have had on the relationship of a
child with either or both of his/her parents. In this
regard, the identification of ‘alienating behaviour’
should be the court's focus, rather than any quest to
determine whether the label ‘parental alienation’ can
be applied.”

22. We find ourselves in agreement with the aforesaid
position. Courts ought not to prematurely and without
identification of individual instances of ‘alienating
behaviour’, label any parent as propagator and/or potential
promoter of such behaviour. The aforesaid label has far-
reaching implications which must not be imputed or
attributed to an individual parent routinely.

23
. Accordingly, it is our considered opinion that Courts
must endeavour to identify individual instances of
‘alienating behaviour’ in order to invoke the principle of
Page 46 of 65

parental alienation so as to overcome the preference
indicated by the minor children.”

86. While there have been many studies conducted abroad on
the mental health of the children in custody disputes, very little
studies have been done in India. This Court has come across a
study conducted by a team of psychologists from the Department
of Psychiatric Social Work, National Institute of Mental Health
and Neurosciences (NIMHANS), Bengaluru and Department of
Child and Adolescent Psychiatry (NIMHANS), which was
published in the Indian Journal of Psychological Medicines in
9
2025 . As per the aforesaid study, the team of psychologists
identified seven themes of issues which afflict the children and
10
parents, namely:
1) Parent-child relationship and interaction.

This theme highlights the intricate dynamics of parent-child
relationships. When children form alliances with one parent, it
suggests a preference or stronger bond with that parent.
Simultaneously, the rejection towards the other parent may stem from
perceived differences, conflicts, or negative experiences within the
relationship. Hostility could manifest as anger, criticism, or
aggression, while coercion may involve manipulation, control, or
imposing one’s will onto the child.

Parental dynamics.
2)

This theme shows the dysfunctional aspects of parental
dynamics. The themes of non-cooperative behaviour suggest a lack of

9
Nambiar PP, Jangam KV and Seshadri SP, Psychosocial Perspectives on Child Mental Health in Custody Disputes: A
Qualitative Study from India. Indian J Psychol Med. 2025;47(4):371-380.

10
Some of the relevant portions of the study are reproduced.
Page 47 of 65

collaboration or teamwork between parents, which can lead to
increased conflict and instability in the parent subsystem. The
conflicts in the child’s presence may result in confusion and
uncertainty for the child, as they may struggle to understand
boundaries and expectations.

3) Parental mental health issues.

This theme shows the emotional turmoil experienced by the
parents in custody disputes. Mood swings and anger outbursts can
create a tense and unstable atmosphere within the parent–child
interaction. It also reflects the impact of parental mental illness on
trust and communication within the parental interactions. The lack of
trust between parents can lead to restrictive behaviours and a sense
of confinement for both the parent and child. It shows how mental
illness can exacerbate existing relationship challenges, fostering an
environment of doubt and vigilance that further strains familial bonds.

4) Malicious acts by parents.

This theme underscores the manipulation and coaching of
children by one parent against the other. Children are coerced into
delivering messages or adopting negative behaviours toward a parent,
often at the behest of the manipulating parent or other relatives. It
highlights the emotional manipulation and psychological pressure
imposed on children, disrupting their sense of trust and security
within the family unit. This theme explores the damaging effects of
parental bad-mouthing and false accusations on children’s emotional
health. Parents engage in disparaging remarks and false allegations
against each other in front of the child, creating a toxic environment
filled with hostility and mistrust.

5) Adjustment to changes in child’s life.
This theme discusses the impact of extended family members
on the family dynamic. It underscores the potential for extended family
involvement to exacerbate conflicts and contribute to emotional
distress within the family unit. This theme explores the complexities
that arise from parents’ remarriage or forming new partnerships. This
dynamic adds to the child’s emotional turmoil, as they navigate their
changing family structure and relationships. Additionally, financial
struggles pose a significant theme, impacting parental decision-
making and family dynamics. The parent’s desperate financial
situation forces them to make compromises, such as agreeing to
arrangements that may not be in the best interest of their children, in
exchange for financial support. Overall, these thematic elements
highlight the multifaceted nature of child custody disputes, involving
not only legal and logistical challenges but also emotional, familial,
and financial factors that profoundly impact the well-being of the child
and the dynamics between the parents.
Page 48 of 65

6) Issues in school context.

The recurring theme of declining academic performance
highlights the detrimental effects of parental discord on the child’s
ability to focus and succeed in school. It underscores how custody
disputes can manifest in tangible academic consequences for the
child, as their grades suffer amid the turmoil at home. Additionally,
change of school during parental separation reflects the upheaval and
instability experienced by the child as a result of parental decisions
made within the custody dispute. The child’s resistance to the change
and the subsequent legal intervention required to redirect their
schooling indicate the distress and disruption caused by parental
conflict and unilateral decisions regarding the child’s education. This
theme underscores the child’s loss of stability and familiarity, further
complicating their adjustment and well-being during the custody
dispute. Lastly, parental discord displayed in school premises
exposes the child to public embarrassment and social discomfort.
Witnessing parental conflict in front of peers and school staff can
deeply impact the child’s sense of security and social standing. This
highlights how parental behaviour in public settings can directly affect
the child’s emotional resilience and social integration within the school
environment.

7) Child mental health Issues.

This theme shows how parental behaviours significantly
influence a child’s upbringing and development. The reference to
previous dysfunctional themes suggests that the parental behaviours
are not conducive to healthy parent–child relationships or optimal
child development. The child becomes a pawn in the parents’ conflict,
exposed to harmful communication and negative perceptions about
their caregivers, which can deeply impact their self-esteem and sense
of stability. Overall, it sheds light on the multifaceted impact of
custody disputes on child mental health, encompassing emotional
distress, behavioural issues, and psychosomatic symptoms. The child
becomes a vulnerable bystander caught amidst parental conflict,
experiencing tangible consequences in their psychological and
physical well-being as a result.

87. We have referred to the aforesaid report merely to highlight
that the study is reflective of the mental health of the child caught
in the whirlpool of parental disputes and the psychological
condition of the disputing parents themselves which will provide
Page 49 of 65

the background for passing appropriate orders by the court. It
also highlighted the potential risk factors in the familial context
that adversely influence the child’s well-being and mental health
in custody disputes. The report also suggested interventions at
the family level in the legal setting to mitigate these risks. The
study also highlighted the importance in child custody case for
proper coordination and liaison of child mental health
professionals with the judicial system, keeping in mind the child-
centric and child friendly provisions in the legal system to
enhance child participation. The study also deals with various
acts by the parents as mentioned above by examining
manipulation and coaching of children by the parent having
custody and also the bad mouthing and making false allegations
against the parent.
88 . This Court has referred to the said study essentially to
emphasise the sensitivity with which the courts have to deal with
such matter where human emotions play significant role for
which legal parameters have to be suitably applied for proper
adjudication. Necessarily, therefore, though the courts are the
ultimate decision makers, the courts have to rely on the expert
opinions regarding the psychological condition of not only to the
Page 50 of 65

children, but also the parents before passing any appropriate
order in that regard. Reference to the said report is also made to
highlight that in matters involving custodial rights of the children
in the context of bitterly contested disputes between the parents,
the court have to adopt a very cautious approach before passing
orders which may have the potential of aggravating the trauma of
an already disturbed child.
Each of the above themes considered in the report
highlighted the highly complex psychological factors at play,
sometimes in solo or collectively requiring deft management of

these emotional behaviours by the court.

89 . We have also noted that the present proceedings arise
primarily in the context of the Respondent, who is in the USA is
seeking to have access visitation right over the child, who is
presently staying with the mother in India. The divorce
proceedings are still pending, and both the parents remain
separated. The issue of having custody of the child has not
arisen at this stage. Therefore, the limited issue before this Court
is of allowing the Respondent who has been accused of sexual
abuse of the child, to have access to the child or have visiting
rights which had been denied by the Family Court, and to have
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psychological assessment of the child at the instance of the
Respondent.
90 . Keeping in mind the overall welfare of the child, even if the
child is with the mother, it cannot be denied that she is presently
under the partial/temporary guardianship of the mother only,
thus, depriving her of full love and affection which normally a
child would receive under the care of both the parents. There can
be no doubt that under normal circumstances, both the parents
would shower their wholesome love on their child which
unfortunately the child does not enjoy presently. At the same
time, it may be difficult for a child to determine on her own to
have any particular preference for either of the parents.
91. This is also an unfortunate case where a child who is
already living in a disintegrated family without receiving the full
and undivided love, attention and care of both the parents, sadly
has been subjected to alleged sexual abuse by her own father,
though the father has vehemently denied the same, of which we
do not wish to make any observation as it is the subject matter
pending before another forum.
92. During the pendency of the present proceedings, this Court,
by order dated 06.08.2024, directed the concerned Family Court
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to appoint an expert child psychologist. After interacting with the
child, the psychologist submitted the report to the concerned
Family Court, with a copy to this Court, in sealed envelope. By
order dated 03.01.2025, the report was opened and seen and,
thereafter, directed to be re-sealed and kept on record with the
concerned Registrar (Judicial).
We have considered the said report only for the limited
purpose of assessing the nature of the processes to which the
child may be subjected to in the present proceedings. It appears
from the report that the child appeared to be doing well. Without
adverting in detail to the report, in the best interest and welfare
of the child, we are of the view that psychological assessment of
both the parents would be beneficial.
93. Under the such circumstances, we deemed it appropriate
to issue the following directions:
(A) The Family Court will appoint a Psychologist to interact
with both the parents to make an assessment of their
present mental/psychological conditions, more
particularly of the mother under whom the child is
presently in custody.
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(B) The Psychologist, thereafter, will interact with the Child
Psychologist who is currently providing therapeutic
treatment to the child, and then ascertain the current
psychological status and condition of the child.
(C) The said court appointed Psychologist after interacting
with the Child Psychologist, shall submit a report to the
Family Court.
(D) The Family Court, after considering the report submitted
by the court appointed Psychologist relating to the
psychological condition of the parents and also about the
child based on interaction with the Child Psychologist
treating the child, will pass appropriate order as regards
the desirability of conducting any psychological
assessment of the child at this stage. If the Family Court
is of the opinion, on the basis of such report, that the
psychological assessment the child is not desirable or
necessary at this stage, there shall not be any
psychological assessment of the child. However, if the
Family Court feels that such assessment of the child is
necessary, it should be done by an independent child
psychologist in consultation with the child psychologist
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presently treating to child, with utmost care and with the
minimum interactions possible, so as not to unduly
disturb the mental condition of the child.

(E) However, it is also to be remembered that we are dealing
with a growing child, whose psychological needs also will
vary as she grows ups and expands her social circle, and
accordingly, her psychological need would require to be
assessed from time to time. Thus, the Family Court has
to review such an order for psychological assessment of
the child from time to time as may be deemed necessary
after having obtained a report from the Child
Psychologist treating the child.
This is also imperative, as the court acts as the
parens patriae of the child. The court must remain alive
to the changing needs of the child for which periodic
assessment of the psychology of the child would be
desirable which can be carried out by the child
psychologist as mentioned above.
(F) At the same time, to ensure the welfare of the child, the
Family Court has to ascertain as to whether there has
been any adverse influence a parent may have on the
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child as regards “parental alienation syndrome” and
“false memory creation” as against the other parent as
also apprehended by the Respondent. In the present case
even though the child is in the safe custody of the mother
who is taking care of the child, the child must not be
exposed to any influence which may foster the
development of the aforesaid syndrome in the mind of the
child against her father. This can be done by soliciting
reports from the psychologist treating the child without
necessarily interacting with the child on this issue.
94. We clarify that the aforesaid directions passed by us,
however, has to be necessarily temporary in nature as matters
relating to visitation rights/child custody claim in respect of a
growing child would be dynamic and would operate as a
continuing cause of action. Consequently, the parents would be
at liberty to approach the Family Court for necessary modification
of the orders that may be passed from time to time and for
passing such appropriate orders as may be necessary, till the
proceedings reach a logical conclusion.
95 . In view of the related proceeding before the POCSO Court,
we also direct both the parties to apprise the status of the
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proceedings pending against the Respondent under the POCSO
Act, as it would have a significant bearing on any order that may
be passed by the Family Court including concerning visitation or
custodial right of the parties over the child.
96. With the above observations, the impugned orders dated
27.04.2023 and 07.12.2023 are modified and the matter is
remitted to the Family Court for passing appropriate orders in the
light of the directions and observations made by us as above.
97. Before we part with the case, we deem it appropriate to
make certain observations in dealing with cases involving
psychological or psychiatric evaluation of minor children in
proceedings arising out of custody, visitation or parental access
disputes:
(i) In all proceedings, more particularly, involving a
minor child alleged to be a victim under the POCSO Act,
the paramount consideration shall always remain the
welfare, emotional security, dignity and psychological well-
being of the child;
(ii) Psychological or psychiatric evaluation of a child
victim shall not be directed as a matter of routine merely
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because issues of custody, visitation or parental access
arise between litigating parents/relatives;
(iii) Before directing any such evaluative process
concerning the child, the court shall record specific
reasons demonstrating the necessity of such evaluation,
the purpose sought to be achieved, the relevance of the
proposed exercise, and the reasons why less intrusive
alternatives would not sufficiently subserve the interests of
the child;
(iv) Courts shall adopt the principle of minimum
intrusion and minimum exposure while directing
psychological interaction with child victims;
(v) Repeated, overlapping or multi-layered psychological
evaluations of a child victim should ordinarily be avoided
unless compelling circumstances exist and reasons are
specifically recorded in writing;
(vi) Where psychological evaluation is considered
necessary, ordinarily the same should be conducted by one
independent and court-appointed child psychologist,
psychiatrist or similarly qualified professional possessing
expertise in child psychology and child trauma;
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(vii) Constitution of a panel of experts should remain an
exceptional course to be adopted only where the court is
satisfied that the peculiar facts of the case render such
course indispensable;
(viii) The expert appointed by the court must remain
demonstrably independent and neutral and should
ordinarily not have any prior engagement with either
litigating party, except purely on professional basis;
(ix) The evaluative process shall remain child-centric and
welfare-oriented and shall not assume the character of an
adversarial, investigative or evidence-gathering exercise
intended to advance the case of either party in pending
criminal or custody proceedings;
(x) Courts shall remain cognizant of the possibility of re-
traumatisation arising from repeated narration of
traumatic events by child victims and shall regulate the
number of sessions, duration of interaction, number of
professionals interacting with the child, and overall
manner of evaluation.
(xi) Any process of psychological evaluation directed by a
court shall remain consistent with the child-friendly
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framework contemplated under Sections 24, 33(5), 36 and
39 of the POCSO Act and the principles underlying trauma-
informed adjudication;

(xii) The identity of the child, disclosures made during
evaluation, therapeutic records and evaluative reports
shall remain strictly confidential and shall not ordinarily
be disclosed beyond what is necessary for adjudication;
(xiii) Audio or video recordings, session notes and
therapeutic material generated during evaluation shall not
ordinarily be made directly accessible to parties except
upon specific judicial determination of necessity;
(xiv) Evaluative reports prepared pursuant to orders of the
court shall remain confined strictly to the purpose for
which evaluation was directed and shall not contain
findings concerning criminal culpability;
(xv) Where the child is already under the care of a
qualified therapist, counsellor or support professional and
the court is satisfied regarding the competence and
neutrality of such professional, substitution of the existing
therapeutic environment should ordinarily be avoided;
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(xvi) In cases involving virtual or hybrid interaction with
experts, courts shall ensure adequate safeguards
concerning privacy, emotional safety, absence of external
influence and overall suitability of such mode considering
the age and psychological condition of the child; and
(xvii) The court directing evaluation shall retain continuing
supervisory jurisdiction over the process and may modify,
regulate or discontinue the same if continuation thereof
appears likely to adversely affect the welfare or
psychological well-being of the child.

(xviii) The court must ensure that psychological
assessment of the child is conducted from time to time, as
the child grows, as the court may consider appropriate, if
required in consultation with the concerned child
psychologist, so as to assuage itself that the best interest
and welfare of the child are being safeguarded.
(xix) Since the psychological growth and welfare of the
child is closely intertwined with the psychological condition
of the parents, it would be desirable for the courts to call
for psychological assessment reports of both the parents as
it will aid in passing appropriate orders in respect of the
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welfare of the child, since the courts also exercises the
jurisdiction of parens patriae over the child and thus has
an onerous responsibility for the welfare of the child.

(xx) Since the courts are dealing with proceedings
permeated with highly emotionally charged parents, it
would be desirable to have the assistance of the
experts/child psychologists/psychologists about the
mental health of the child as well as the parents as an
additional tool to fashion the judicial orders, for judges are
ordinarily not skilled in dealing with emotions but trained
essentially in application of legal principles.
98. We deem it necessary to clarify that the observations made
hereinabove are not intended to be understood as exhaustive or
inflexible guidelines to be applied mechanically in every case.
Matters involving the psychological condition, emotional
responses and welfare needs of a child, particularly in the
backdrop of estranged parental relationships and allegations of
abuse, do not admit of rigid formulae or uniform standards of
application. Human emotions, particularly those of a child, are
inherently dynamic in at least two distinct respects. First, the
emotional response of one child may materially differ from
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another child placed in apparently similar circumstances.
Secondly, even in the case of the same child, emotional responses
and needs may not remain static, but may change with the
passage of time, advancing age, therapeutic progress, family
environment, schooling, social exposure and other
circumstances, some of which may appear minor in isolation but
may nevertheless bear upon the child’s emotional state
ultimately. In other words, the surrounding circumstances will
always be in a flux because human emotions and inter-personal
relationships will not remain static, but always remain dynamic.
Also, it would be neither possible nor appropriate for this
Court to define with exactitude the intervals or circumstances in
which a psychological assessment and counselling may be
undertaken “from time to time”. Such determination must
necessarily be left to the sound discretion of the court concerned,
to be exercised on a case-to-case basis, preferably with the
assistance of the treating child psychologist, counsellor or an
independent expert, as the facts may warrant. While doing so, the
court must ensure that the child is not subjected to avoidable
intrusion, repeated exposure or unnecessary psychological
burden. The controlling consideration, at every stage, must
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remain the best interest, dignity, emotional security and
psychological welfare of the child.
Therefore, the aforesaid observations are merely intended
to ensure that judicial processes concerning child victims remain
trauma-informed, child-centric so that procedures ostensibly
adopted in aid of welfare do not themselves become instruments
of psychological distress or secondary victimisation to the child
and the court acting as parens patriae in such cases, has to
remain constantly alive to the welfare of the child. Certainly, the
courts would have the discretion to devise appropriate
methodologies and pass appropriate orders as the court may
deem fit by keeping in mind the peculiar facts of the case.
99. For the reasons discussed above, the impugned orders
dated 27.04.2023 and 07.12.2023 passed by the High Court of
Judicature at Bombay are modified to the extend indicated above.
100. We are also conscious of the fact that one of the impugned
orders i.e. order dated 07.12.2023 passed in Writ Petition No.
7560 of 2023 is interim in nature. However, considering the
peculiar facts of the case, we have felt it appropriate to modify the
impugned orders and remit the matter to the Family Court which
shall pass appropriate orders in terms of the directions and
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observations made above. Accordingly, the Writ Petition No. 7560
of 2023 shall stand disposed of as far as this issue is concerned.
101. The appeals are, accordingly, partly allowed in the
aforesaid terms.
Pending application(s), if any, shall stand disposed of in
accordance with the judgment above. There shall be no order as
to costs.

………………………...J.
(SANJAY KAROL)


……………...………………………………J.
(NONGMEIKAPAM KOTISWAR SINGH)

NEW DELHI;
JUNE 11, 2026
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