INTRODUCTION
In XXXX v. XXXX, 2026 INSC 638, decided on 11 June 2026, the Supreme Court of India Division Bench, comprising Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh, examined the slight intersection between child custody disputes, visitation rights and allegations of sexual abuse under the Protection of Children from Sexual Offence Act 2012 (POSCO Act). In this judgement an important question was raised, whether the child who is an alleged victim of sexual abuse can be subjected to repetitive psychological evaluations by multiple experts merely to facilitate parental access and visitation claims. the Supreme Court said that a child centric approach emphasizing that the welfare, dignity and psychological safety of the child must remain the paramount consideration in all judicial proceeding involving minors.
BRIEF FACTS
In this case the Appellant and the Respondent were married on 10.02.2015 at Faridabad, Haryana. After registering their marriage, they moved to United States of America. A daughter was born in the marriage on 24.06.2016 in New Jersey USA.
The Appellant alleged that the Respondent had physically abused her daughter and sexually abused the child when the Appellant and the Respondent were residing in the United States. The Appellant apprehending danger to her life and safety returned to India on 30.12.2019 along with her daughter.
After returning to India the Appellant filed multiple cases against the Respondent, that are domestic violence, divorce case and criminal proceedings under section 376 (Punishment of Rape), 376(2)(n)[1], 323(Punishment for voluntarily causing hurt), 504(Intentional insult with intent to provoke breach of the peace) Indian Penal Code and section 4(Punishment for penetrative sexual assault), 5(l)[2], 5(n)[3] and 6(Punishment for aggravated penetrative sexual assault) of the POSCO Act. FIRs were registered against the Respondent alleging offences under the Indian Penal Code and POSCO Act.
The Respondent filed and application of visitation rights and requested for the appointment of an independent child psychologist to evaluate the child and facilitate reconnection before the Family Court. The said Application was rejected by the Family Court as the Court held, that the child was already receiving healing treatment and that further evaluation could be detrimental to her welfare.
The Respondent aggrieved by the Family Court Order of rejecting the appointment of an independent child psychologist instituted Writ Petition No. 7315 of 2022 before the Bombay High Court challenging the said Order of Family Court. The Bombay High Court passed an Order of appointment of an independent expert and High Court, modified its Order and substituted the term “expert” with “panel of experts.” After that, the High Court itself constituted a four member panel, including experts suggested by the father and one expert located outside India. The Appellant aggrieved by these Orders approached the Supreme Court.
ISSUES OF LAW
- Whether the Bombay High Court was correct in replacing the direction for appointment of an independent expert with a panel of experts.
- Whether the multiple psychological evaluations of a child alleged to be victim of sexual abuse are constant with the principle of child welfare and best interest.
- Whether the repetitive evaluations could result in re-traumatization and secondary victimization of the child.
- Whether the constitution of a multi member panel was compatible with the Child victim under the POSCO Act.
- Whether the procedure adopted by the Bombay High Court satisfied the requirement of neutrality and independence.
ANALYSIS OF THE JUDGEMENT
Paramountcy of Child Welfare
The Supreme Court repeated the settled principle that in custody and visitation matters, the welfare of the child prevails all competing parental claims. In the Judgements such as Gaurav Nagpal v. Sumedha Nagpal, Yashita Sahu v. State of Rajasthan and Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu, the Supreme Court reaffirmed that emotional and psychological well being forms an integral part of child welfare. The Supreme Court highlighted that judicial procedure themselves must not become a source of harm to the child.
Child Centric Philosophy of the POSCO Act
In this Judgement the Supreme Court analyzed and explained the provisions, objective and the principles of the POSCO Act. The Supreme Court observed that the legislation is not merely disciplinary but also protective. It ensures that children are not subjected to fear, intimidation, humiliation or unnecessary exposure during legal proceeding. The Supreme Court mentioned sections that were their in the POSCO Act to protect the child namely, 24(Recording of statement of a child), 33(5)[4], 36(Child not to see accused at the time of testifying) and 39(Guidelines for child to take assistance of experts, etc). The Supreme Court highlighted the legislative commitment to child friendly procedures and the principle of minimum exposure and minimum re-traumatization.
Re-Traumatization and Secondary Victimization
The Supreme Court held that there is a distinction between psychological support aimed at healing a child and psychological evaluations undertaken for confrontational litigation purposes. According to the Supreme Court, repetitive interviews and assessments may convert the child into an object of continuous forensic scrutiny, thereby causing emotional distress. The Supreme Court relied on this Judgement Sakshi v. Union of India and Thirty Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka to underline the repetitive interactions with a child in argumentative legal proceedings may adversely affect the child’s mental health.
Criticism of the Bombay High Court decision
The Supreme Court found fault with the Bombay High Court’s decision to replace a single independent expert with a panel of experts. The Supreme Court observed that this was not a mere procedural modification rather it expressively increased the child’s psychological exposure. The Supreme Court also expressed concern that several experts had been proposed By the Respondent himself, hypothetically affecting the appearance of neutrality and independence.
Importance of Psychological Assessment of Parents
In this Judgement the Supreme Court’s observation that the focus should not be solely on the child. The psychological condition of both parents is equally applicable because parental behavior expressively affects a child’s welfare and development. The Supreme Court held that the psychological assessments of both parents may provide valuable material for deciding visitation and access issues.
Guidelines for future Cases
The Supreme Court framed guidelines for psychological evaluations of children in custody disputes involving abuse allegations. The Supreme Court set guidelines that emphasized, necessity and proportionality, minimum intrusion, child friendly procedures, institutional neutrality, protection from repetitive exposures and ongoing judicial oversight. The said principles are expected to guide Family Courts and High Courts in future cases.
TRISHMA KASHYAP
Legal Associate
The Indian Lawyer & Allied Service
Editor’s Comments
By this Judgement the Supreme Court marks an important advancement in Indian child rights jurisprudence. The Supreme Court did not observe the dispute solely through the lens of parental rights, the Court placed the child at the center of the legal process. The Apex Court held that judicial procedures themselves can become sources of trauma and therefore must be designed with sensitivity, restrained and compassion.
The Supreme Court of India while altering the Bombay High Court’s Order emphasized that children are not mere subject of legal proceedings but right bearing individuals whose emotional and mental well being deserve the highest protection. The Apex Court’s decision serves as a reminder that in family disputes involving children, the true measure of justice lies not in justifying parental claims but in safeguarding the dignity, security and future of the child.
Sushila Ram Varma
Advocate and Chief Consultant
The Indian Lawyer & Allied Services
[1] (n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. Explanation.—For the purposes of this sub-section,— (a) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government; (b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation; (c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861 (5 of 1861); (d) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
[2] (l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or
[3] (n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or
[4] (5) The Special Court shall ensure that the child is not called repeatedly to testify in the court.
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