The Supreme Court has expressed serious concern over the misuse of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) in bitter matrimonial and child custody disputes, where allegations of sexual abuse may be employed to gain a strategic advantage against the other parent. At the same time, the Court emphasised that genuine allegations of child sexual abuse must receive the full protection of the law. To balance these competing concerns, the Court laid down safeguards applicable in specified cases involving allegations against a parent or family member amid matrimonial discord.
The ruling came in ‘R’ v. ‘E’ & Anr., 2026 INSC 1049, where the Supreme Court dealt with a prolonged matrimonial and custody battle accompanied by multiple criminal proceedings, including allegations under the POCSO Act.
Background of the Case
The parties, referred to as ‘R’ and ‘E’ to protect their identities, married in 2011. It was the second marriage for both, and a daughter, ‘M’, was born in 2015. Serious matrimonial differences subsequently arose, and in April 2018, the mother left the matrimonial home with the child.
The father instituted proceedings under Section 25 of the Guardians and Wards Act, 1890 before the Family Court, Bengaluru, seeking custody of the child. He also subsequently sought divorce on the grounds of cruelty and adultery.
In March 2022, the Family Court allowed the father’s guardianship petition and directed the mother to hand over custody of the child to him. The Karnataka High Court affirmed the decision in January 2023 while granting extensive visitation rights to the mother. The mother’s challenge before the Supreme Court was ultimately dismissed.
The custody of the child was handed over to the father on 7 June 2023. Thereafter, several proceedings were initiated against him and members of his family.
A significant development occurred in March 2024 when an FIR was registered on the mother’s complaint alleging offences under Section 10 of the POCSO Act, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, and Sections 323, 504 and 506 read with Section 34 of the IPC [Sections 115(2), 352, 351, 3(5) of BNS].
The allegations included sexual harassment of the child by the father and physical and verbal mistreatment by members of his family. The child’s statements were recorded, and she was medically examined.
Supreme Court Transfers Investigation to CBI
Considering the sensitive nature of the allegations, the Supreme Court initially directed that the investigation be handled by a senior woman police officer not below the rank of Assistant Commissioner of Police. It also directed examination of the child by a panel of doctors.
Subsequently, in April 2026, the Court transferred the investigation to the Central Bureau of Investigation (CBI). A specialised committee was constituted, including senior CBI officers and experts from NIMHANS in child and adolescent psychiatry and clinical psychology.
The CBI undertook an extensive investigation. It examined the parents, family members, teachers, the school counsellor, neighbours, domestic help and other witnesses. CCTV footage from the father’s residence, including footage relating to dates on which the alleged incidents were stated to have occurred, was forensically examined.
Of particular significance was the detailed psychiatric and psychological assessment of the child.
The evaluation considered, among other things, the child’s disclosure history, relationship with both parents and the father’s family, possible origin of the allegations, inconsistencies in her statements, behavioural indicators, family dynamics and the possible influence of prolonged parental conflict.
The assessment noted that prolonged parental conflict, continuing custody litigation, repeated discussions concerning the allegations, multiple psychological consultations and continued exposure to family narratives could have influenced the child’s perceptions and narrative.
The CBI ultimately concluded that the allegations were not made out and that the case was not fit for prosecution. The Supreme Court accepted the report and held that continuing the criminal proceedings would amount to a gross abuse of the process of law.
Accordingly, the FIR under the POCSO Act and other provisions was quashed.
Child Should Not Become a Casualty of Parental Conflict
At the beginning of its judgment, the Supreme Court highlighted the devastating consequences for a child caught between warring parents. It observed that the situation becomes substantially more serious when matrimonial acrimony escalates into unjustified allegations that one parent has sexually assaulted the child.
Such allegations do not merely affect the accused parent. They can expose the child to serious trauma and permanently damage the parent-child relationship.
The Court also recognised the humiliation and social consequences suffered by a parent falsely accused of sexually abusing his or her own child, which may continue even after exoneration.
The Court noted with concern a growing tendency to employ criminal proceedings to keep an estranged spouse and family members embroiled in litigation for prolonged periods. It also cautioned legal professionals against encouraging a “win at any cost” approach in family disputes.
Judicial Notice of Misuse of Criminal Law in Matrimonial Disputes
The Supreme Court referred to its earlier decisions dealing with exaggerated or false criminal allegations arising from matrimonial discord.
In Geddam Jhansi v. State of Telangana, the Court had emphasised that invocation of the criminal process carries serious penal consequences and that criminal proceedings in domestic disputes should ordinarily rest on specific allegations supported by credible material.
The Court also referred to Achin Gupta v. State of Haryana, where it had observed that children often become the principal sufferers in bitter matrimonial disputes.
More directly, the Court relied upon Ishwar Chand Sharma v. State of Uttar Pradesh, 2026 SCC OnLine SC 1004, which addressed the misuse of POCSO allegations in matrimonial and other disputes.
The Supreme Court reiterated that genuine cases of sexual abuse must receive utmost attention and must be vigorously investigated. The existence of false cases cannot be used to undermine bona fide complaints. At the same time, vague, frivolous or deliberately fabricated accusations under a stringent penal statute cannot be permitted to become instruments of vengeance, harassment or bargaining.
POCSO Act Is Not Meant for Settling Scores
The Court emphasised that the POCSO Act was enacted to protect children from sexual assault, sexual harassment and sexual exploitation. Its stringent provisions reflect the seriousness with which offences against children must be treated.
However, those very stringent consequences make misuse particularly damaging. The Court referred to Section 22 of the POCSO Act, which provides punishment in specified circumstances for false complaints or false information made with the intention to humiliate, extort, threaten or defame a person.
It also referred to the Parliamentary Standing Committee’s report on the POCSO Bill, which had recognised that the proposed legislation was intended to instil confidence in children to report abuse but was not meant to be used for “settling scores”.
The Supreme Court noted that Section 22 alone may not sufficiently prevent the damage caused by a false accusation because substantial harm may already have occurred before action for a false complaint can be initiated. An accused may have suffered arrest, loss of liberty, reputational damage and adverse consequences in pending custody or guardianship proceedings.
The Court therefore considered safeguards necessary.
When Will the Supreme Court’s Safeguards Apply?
Importantly, the safeguards prescribed by the Supreme Court do not apply to every POCSO case.
The Court specified two threshold conditions that must both exist.
- The POCSO offence must have been alleged against a parent or another family member living under the same roof as the child.
- There must be a matrimonial dispute of some form between the child’s parents, irrespective of whether that dispute is already pending before a court. The police officer receiving the complaint has a duty to verify whether such a matrimonial dispute exists.
Thus, the ruling does not create a general requirement of special scrutiny in every prosecution under the POCSO Act. The safeguards operate within the particular family-dispute context identified by the Court.
Police Should Not Make Hasty Arrests
Where both threshold conditions are fulfilled and an FIR has been registered, the Supreme Court directed that the investigating officer should not act hastily or immediately resort to coercive action in the form of arrest.
The Court connected this requirement with Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), governing arrest without warrant.
The Court explained that the statutory requirement of having “reason to believe” that the accused committed the offence applies equally to arrests involving offences under the POCSO Act.
Where serious POCSO allegations emerge against a parent or family member against the backdrop of an existing matrimonial conflict, the strained relationship between the parents may become a relevant surrounding circumstance for the investigating authority while deciding whether coercive action is justified.
Role of Child Psychiatry and Psychology Experts
One of the most significant safeguards introduced by the judgment is the involvement of specialists in child and adolescent psychiatry or clinical psychology.
Where the specified threshold conditions are met, the investigating officer or Special Juvenile Police Unit (SJPU) must engage the services of an expert in child and adolescent psychiatry/clinical psychology, in consultation with the District Child Protection Unit (DCPU), or the District Legal Services Authority where the DCPU is unavailable.
In exceptional cases where the material is palpable, the investigating officer may dispense with such expert involvement, but reasons must be recorded in writing.
The expert should ordinarily be selected from the register maintained by the DCPU under the POCSO Rules, 2020. Where no suitable expert is available on the register, another appropriately qualified expert may be engaged.
The evaluation must remain independent and free from influence by either the disgruntled parent or the investigating agency. It must also comply with the POCSO Act and Rules and should not expose the child to pressure, discomfort or repeated harassment.
Expert’s Opinion Does Not Decide the Case
The Court carefully clarified that a psychological or psychiatric evaluation does not determine whether the allegations are true or false.
The investigating officer is not bound by the expert’s findings. The report is only an aid to the investigating authority while determining whether the circumstances provide the necessary “reason to believe” for arrest and while considering the overall evidence.
Similarly, the expert report cannot become the sole basis for either filing a charge sheet or submitting a closure report. Investigation must continue in accordance with law, and the report must be assessed together with other relevant material.
This distinction is important because the Supreme Court’s directions are intended to improve decision-making without transferring the investigative or judicial function to mental-health professionals.
Safeguards for Private Complaints Before POCSO Special Courts
The Supreme Court also dealt with complaints filed directly before a Special Court under Section 33 of the POCSO Act.
It held that a Special Court is not bound to take cognizance merely because a complaint has been filed. The Court must apply its judicial mind and determine whether sufficient grounds exist to proceed.
Where the specified threshold conditions involving matrimonial discord are satisfied, the Special Court should engage an expert in child and adolescent psychiatry or clinical psychology before deciding whether cognizance should be taken and summons issued.
The expert must evaluate the child and submit a report. The Special Court should consider that report together with the other circumstances before deciding whether sufficient grounds exist to proceed.
However, where the material is palpable, the Special Court may dispense with expert involvement for reasons recorded in writing.
The Supreme Court stressed that summoning an accused is not a routine exercise and must reflect due application of judicial mind.
Mere POCSO FIR Cannot Decide Child Custody
The judgment is equally significant for Family Courts and courts dealing with guardianship and custody disputes. The Supreme Court held that the mere registration of a POCSO case against a parent should not automatically lead to an inference that the allegations are true.
Where the alleged victim is also the subject of custody or guardianship proceedings, the registration of a POCSO case may have a direct effect on one parent’s custody claim. If the complaint has been instituted with a mala fide purpose, it may therefore be capable of altering the balance of the custody litigation itself.
The Court approved the approach earlier adopted by the Kerala High Court in Suhara v. Muhammed Jaleel. A Family Court should consider the relevant circumstances and material collected during investigation and form a prima facie view on a case-to-case basis instead of treating the mere existence of a POCSO FIR as determinative.
No rigid formula can govern such situations because child custody disputes necessarily turn upon their individual facts.
Welfare of the Child Remains Paramount
In the present case, the Supreme Court ultimately concluded that the welfare of the child would be best served by placing her legal custody and guardianship with the father.
The Court noted that the father’s custody claim had previously succeeded before the Family Court, the High Court and the Supreme Court. The CBI’s subsequent investigation further affected the basis on which the POCSO allegations had been relied upon.
Since the child had been physically residing with the mother since March 2024, however, the Court did not direct an abrupt transfer.
Instead, it ordered a carefully supervised process of reintegration of the child with the father and his family through the Family Court, assisted by a committee comprising CBI officers and NIMHANS experts. The Committee was also empowered to make recommendations concerning interim custody and visitation during the reintegration process.
This part of the ruling reinforces that custody proceedings are not intended to punish either parent. The controlling consideration remains the welfare and best interests of the child.
Wider Significance of the Judgment
The judgment attempts to address a particularly difficult intersection of criminal law, matrimonial litigation and child welfare.
The Supreme Court has not diluted the POCSO Act or created a presumption that allegations arising during matrimonial disputes are false. On the contrary, it expressly acknowledged that genuine cases of child sexual abuse demand vigorous investigation and protection.
Its concern is with cases in which a stringent child-protection statute may be strategically deployed amid hostile matrimonial or custody litigation.
The safeguards therefore seek to prevent two forms of injustice simultaneously: failure to protect a child who has genuinely suffered sexual abuse, and irreversible harm caused by unwarranted coercive action founded upon a fabricated allegation.
The Court directed District Child Protection Units to update their registers to include experts in child and adolescent psychiatry and clinical psychology. It further stated that courts dealing with remand and bail in cases satisfying the threshold conditions should examine whether investigating officers complied with the relevant statutory requirements while resorting to coercive action.
The safeguards relating to FIR-based cases apply to investigations that were pending on the date of the judgment. For private complaints under Section 33 of the POCSO Act, they apply where summons had not already been issued.
Finally, the Supreme Court directed that the judgment be circulated to the Registrar Generals of all High Courts for transmission to criminal courts, with particular attention to paragraphs 47 to 77. Copies were also directed to be sent to the Chief Secretaries of all States and Union Territories for circulation to every police station.
Conclusion
The Supreme Court’s decision sends a clear message that the POCSO Act must remain a powerful instrument for protecting children, but its stringent provisions cannot be converted into a weapon for securing an advantage in matrimonial or child custody litigation.
Where allegations of sexual abuse arise against a parent or family member against the backdrop of matrimonial conflict, investigating agencies and courts must act with exceptional sensitivity. They must neither dismiss a child’s allegation merely because the parents are fighting nor mechanically assume its truth solely because a POCSO complaint has been registered.
By requiring careful scrutiny, expert assistance in specified circumstances and greater caution before coercive action, the Supreme Court has sought to protect the central interests at stake, the safety and dignity of the child, the integrity of the criminal justice process, and the rights of persons who may otherwise suffer irreparable harm from false accusations.
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