A parent facing prosecution under the POCSO Act cannot be considered entitled to the custody of the children, the Supreme Court held, staying a Delhi High Court order that had given a father sole custody, and permitting the mother to relocate the two minor children to the United Kingdom for their schooling.
New Delhi: The Supreme Court has, at the interim stage, stayed a Delhi High Court judgment that granted a father sole custody of his two minor children, and permitted the mother to relocate the children to the United Kingdom, where she is employed, for their education, holding that a father who is facing prosecution under the Protection of Children from Sexual Offences (POCSO) Act cannot be regarded as a person entitled to custody while that prosecution is pending. Because the case concerns a child who is an alleged victim of a sexual offence, LawChakra is not naming the parties.
A Bench of Justice Vikram Nath and Justice Sandeep Mehta passed the order on the mother’s appeals against the High Court’s judgment. The Court also expunged certain observations of the High Court that had cast doubt on the POCSO allegations, holding them to be premature and prejudicial. The allegations against the father are untested and the subject of a pending prosecution; he is presumed innocent, and nothing has been finally decided.
The background
The parents, married in 2011, have a son and a daughter, now aged about 13 and 7. The relationship broke down, and after the mother left the matrimonial home, protracted litigation followed across multiple States over the custody of the children, spanning more than seven years. The Family Court at Patiala House, New Delhi, in a guardianship petition filed by the father under the Guardianship and Wards Act, 1890, declared the father the sole custodian with visitation rights to the mother, and the Delhi High Court, by its judgment of January 2026, affirmed that and rejected the mother’s application to relocate the children to the UK, where she works as an academic. The mother appealed to the Supreme Court.
A criminal case under the POCSO Act was registered against the father, the FIR having been lodged, as the Supreme Court recorded, pursuant to a spontaneous disclosure made by the son to a psychiatrist at NIMHANS who had been engaged to examine the child. A chargesheet has since been filed, and a petition by the father to quash those proceedings is pending before the Calcutta High Court. (LawChakra does not set out the details of the allegations, which are untested.)
‘A father facing POCSO prosecution cannot be granted custody’
The Court held that, with a chargesheet filed against the father for an offence under the POCSO Act, granting him custody of the child would be “totally unwarranted and unjustified,” the paramount consideration being the best interest of the children. So long as he is facing prosecution, the Court held, the father cannot be considered a person entitled to custody. It reasoned that handing custody of the son to the father while the criminal case is pending would not only run contrary to the object of the Juvenile Justice (Care and Protection of Children) Act, 2015, but could also frustrate the prosecution, since the possibility of the son giving a free and fair deposition would then be “virtually negligible.”
The Court drew on the general principles in Section 3 of the Juvenile Justice Act, the principle of participation (a child’s right to be heard), the principle of best interest, the principle of safety (that a child must not be subjected to harm or maltreatment), and the principle of non-waiver of rights, holding that, read together, they make clear that the son’s disclosure and his safety “cannot be subordinated to the father’s claim for custody” while the criminal case is pending.
Significantly, the Court added that even if the father were to succeed in his quashing petition, the courts would have to remain circumspect in assessing the circumstances in which the allegations came to be made, and that the outcome of the criminal proceedings could not, by itself, efface the circumstances of the disclosure or render the child’s apprehensions irrelevant for determining his welfare and custody.
High Court’s remarks on the POCSO FIR expunged
The Supreme Court was sharply critical of the Delhi High Court for having commented, in a custody appeal, on the merits of the POCSO prosecution. The High Court had observed that the sexual-abuse allegations appeared “clearly motivated” and in the nature of a “counterblast” to the father’s proceedings. The Supreme Court held it was “unable to countenance this observation,” noting that the FIR had arisen from the boy’s spontaneous disclosure to the NIMHANS psychiatrist, and that minor discrepancies in dates and sequence were insignificant.
“We are of the firm opinion that the observations made by the High Court in the impugned judgment on the veracity of the POCSO FIR were out of place, uncalled for and premature.”
With the FIR itself under challenge before the Calcutta High Court, the Supreme Court held, the Delhi High Court ought to have refrained from commenting on its veracity, as such findings would cause grave prejudice to the prosecution initiated on the basis of the child victim’s statement. It accordingly expunged those observations and directed that they not be taken into consideration in the proceedings arising from the FIR, and that the quashing petition be decided independently, uninfluenced by the Delhi High Court’s remarks or by anything said in the present order.
Relocation to the UK permitted
Recording that the children had, tragically, been “deprived of the custody of both the parents because of the ongoing litigation continuing for more than 7 years,” and that the mother had secured a well-paying teaching position in the UK while the father stood disentitled to custody in view of the pending prosecution, the Court held that refusing the mother’s relocation prayer would further aggravate the children’s parental alienation during their formative years.
The Court made absolute its earlier stay on the operation of the High Court judgment, and permitted the mother, for the present, to take the children to the United Kingdom and admit them to a good school, on the mother’s undertakings that she would place the schooling details on record, would be responsible for the children’s upbringing while in her custody, and would produce the children before any court as and when directed. It clarified that the quashing petition before the Calcutta High Court would be decided on its own merits, uninfluenced by any observations in the impugned judgment or in the present order, and listed the appeals for hearing in January 2027.
Why the order matters
The order is a significant statement, albeit at the interim stage, on the interplay between a custody claim and a pending child-sexual-abuse prosecution against the parent seeking custody. Its central proposition, that a parent facing prosecution under the POCSO Act cannot, while that prosecution is pending, be treated as entitled to custody of the child, places the child’s safety and the integrity of the criminal process above a parent’s custodial claim, consistent with the “best interest of the child” standard that governs all custody decisions and with the safety and participation principles of the Juvenile Justice Act. The Court’s concern that granting custody could compromise the child’s ability to depose freely underscores how custody and criminal proceedings can intersect where the child is both the subject of the custody dispute and the victim-witness in the prosecution.
Equally important is the Court’s insistence that a court deciding custody should not pronounce on the merits or veracity of a pending criminal case. By expunging the High Court’s characterisation of the POCSO allegations as a “motivated counterblast,” the Supreme Court reaffirmed that such premature findings can gravely prejudice a prosecution founded on a child’s statement, and that the two proceedings must be kept distinct. At the same time, the order is expressly interim and protective: it decides nothing on the guilt of the father, who remains presumed innocent with his quashing petition to be decided independently, and it balances the immediate welfare of two children, caught in seven years of litigation, by allowing their continued schooling and care with the mother, subject to undertakings, pending the final hearing.
Bench: Justice Vikram Nath and Justice Sandeep Mehta, Supreme Court of India
Citation: 2026 INSC 1043
Date of Order: September 23, 2026
(Parties not named to protect the identity of the minor child, an alleged victim of a sexual offence, under the POCSO Act.)