New safeguards for POCSO cases amid matrimonial disputes: expert child-psychology evaluation required before arrest or summoning in appropriate cases

‘R’ and ‘E’, both previously married, married in 2011 and had a daughter, ‘M’, in 2015. Following marital discord, ‘E’ left the matrimonial home with the child on 02.04.2018. ‘R’ instituted guardianship proceedings under Section 25 of the Guardians and Wards Act, 1890, while both parties initiated criminal and matrimonial proceedings against each other.

The Family Court directed that custody of ‘M’ be handed over to ‘R’. The Karnataka High Court affirmed the custody order but granted extensive visitation rights to ‘E’. The Supreme Court dismissed ‘E’s challenge to that order on 29.03.2023, after which the High Court directed that custody be handed over to ‘R’; custody was accordingly transferred on 07.06.2023.

After custody was transferred, ‘E’ alleged that ‘R’ and his family had subjected ‘M’ to physical and sexual abuse. FIR No. 76/2024 was registered under Section 10 of the POCSO Act, Section 75 of the Juvenile Justice Act, 2015, and Sections 323, 504, 506 read with Section 34 of the IPC.

During the proceedings, the Supreme Court transferred the investigation to the CBI and directed the constitution of a committee comprising senior CBI officers and experts in child and adolescent psychiatry and clinical psychology.

The CBI report concluded that the allegations were not made out, relying upon inconsistencies in the child’s statements, CCTV footage, witness evidence, and the psychological/psychiatric evaluation. The report found the allegations unreliable and the matter unsuitable for prosecution.

Whether FIR No. 76/2024 alleging offences under the POCSO Act, the Juvenile Justice Act and the IPC should be quashed when the investigation, including expert psychological evaluation and corroborative material, did not support the allegations?

Whether the registration of a POCSO case during an acrimonious matrimonial and custody dispute should, by itself, affect the accused parent’s claim to custody or guardianship?

What safeguards should govern arrest and investigation where a POCSO offence is alleged against a parent or family member residing with the child, and a matrimonial dispute exists between the parents?

Whether custody and guardianship of ‘M’ should ultimately rest with ‘R’, and what process should govern the child’s reintegration into his custody?

Whether the connected criminal proceedings arising from FIR No. 165/2018 and the subsequent guardianship proceedings should continue?

The Court applied the welfare-of-the-child principle under the Guardians and Wards Act, 1890, as developed in Rosy Jacob v. Jacob A. Chakramakkal, holding that custody matters must be decided primarily on the child’s welfare and on the facts of each case.

It relied on the principles governing quashing of criminal proceedings where continuation would constitute an abuse of process, particularly when the investigative material does not disclose a prosecutable case.

Section 22 of the POCSO Act penalises false complaints or information made with intent to humiliate, extort, threaten or defame, although the Court observed that the provision may not prevent the immediate and irreparable consequences of a false accusation.

Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023, was applied to reaffirm that arrest is discretionary and requires a statutory “reason to believe” and, where applicable, satisfaction that arrest is necessary; the Court relied on Joginder Kumar v. State of U.P., Arnesh Kumar v. State of Bihar, and Satender Kumar Antil v. CBI.

The Court further relied on Suhara v. Muhammed Jaleel for the principle that mere registration of a POCSO case should not automatically defeat a parent’s custody claim.

In cases satisfying the threshold conditions, the investigating officer or Special Juvenile Police Unit must ordinarily obtain assistance from an expert in child and adolescent psychiatry or clinical psychology, while retaining independent discretion and not treating the expert report as conclusive or as the sole basis for a chargesheet or closure report.

Similar safeguards were prescribed for private complaints under Section 33 of the POCSO Act before issuance of process.

The Court found that the allegations in FIR No. 76/2024 arose against the background of prolonged matrimonial conflict and an ongoing custody dispute. The CBI’s investigation examined the parties, family members, school personnel, medical witnesses and other relevant witnesses; analysed CCTV footage from the father’s residence and the dates of the alleged incidents; and considered the child’s forensic psychological and psychiatric evaluation.

The material disclosed material inconsistencies, absence of reliable independent corroboration, CCTV evidence inconsistent with the allegations, and no psychological signs of trauma corresponding to the alleged abuse. The CBI consequently found the child’s allegations unreliable and the case unfit for prosecution.

On the totality of the material, the Court held that continuing the prosecution would constitute a gross abuse of process and quashed FIR No. 76/2024.

For custody, the Court treated the child’s welfare—not the mere existence of a criminal allegation—as the governing consideration. Since ‘R’s custody claim had already succeeded before the Family Court, High Court and Supreme Court, and the CBI investigation had undermined the foundation of the later POCSO-based custody claim, the Court concluded that ‘M’s welfare would be best served in ‘R’s legal custody.

However, recognising that ‘M’ had remained with ‘E’ since March 2024, the Court directed a structured reintegration process supervised by the Family Court and advised by the expert committee.

The Court also distinguished between genuine POCSO cases and allegations potentially deployed as litigation tactics. It emphasised that the safeguards must not dilute the protective purpose or stringency of the POCSO Act, and that expert evaluation is an aid to investigation—not a substitute for the investigating officer’s independent assessment.

The safeguards were made applicable to investigations pending on the date of judgment and to private complaints where summons had not yet been issued.

It held that the legal custody of ‘M’ shall rest with ‘R’.

Since physical custody had remained with ‘E’, the matter was remitted to the IVth Additional Principal Judge, Family Court, Bengaluru, for a supervised reintegration process, with assistance from the designated CBI and NIMHANS experts.

The Family Court was authorised to determine interim custody and visitation arrangements during reintegration, and ‘E’ was directed to cooperate, with disobedience liable to serious consequences.

The Court also quashed FIR No. 165/2018 and all proceedings arising from it, terminated the fresh guardianship petition founded on FIR No. 76/2024, and closed the contempt petition without further action.

Finally, it directed courts, investigating authorities and police stations to observe the safeguards concerning arrest, expert evaluation, private complaints and the effect of POCSO proceedings on custody litigation.