Supreme Court Issues Guidelines to Prevent Misuse of POCSO Act in Custody Disputes
The court issued these guidelines due to the surge in false POCSO accusations being made during custody disputes.
Supreme Court has given certain guidelines which will be followed throughout the country to prevent misuse of POCSO act in Matrimonial and Custody cases.
The bench comprising of Justice JB Pardiwala and Justice KV Viswanathan took note of the increasing number of spouses using the tool of false accusation of child sexual abuse against each other during custody disputes.
"There have been several instances where innocent people have been led astray by their counsellors, sometimes by the wayward counsel who would work towards their goal of 'winning at any cost' thereby stoking the flames. The angry parent who succumbs to rage and is blinded by ego often ends up falling into the trap of these people and do not realize the repercussions it could lead to", observed the Court.
Such accusations can cause the accused to suffer irreversible damage by publicly shaming them and arresting them without having the opportunity to prove themselves innocent.
In light of the above concern the court directed certain guidelines to be followed by the Police Officer and Special court if following circumstances arise. If a POCSO offence is being accused upon a parent/cohabiting family member in the course of a matrimonial dispute then the following steps should be taken.
- There should be no hasty or routine arrest made by the investigating officer under section 35 of BNSS 2023. Which states that Police can arrest a suspect if they have "reason to believe" that he/she has committed the crime.
- If the Police/SJPU wish to arrest the suspect they shall obtain the services of an expert in Child and Adolescent Psychiatry/Clinical Psychology to assess the child victim. This assessment shall be done after consulting with the DCPU.
- The report provided by the child mental health professional should be taken into consideration before making a decision to arrest the accused.
- If a parent files a private complaint before the special court under section 33 of POCSO. Then the judge should call for the assistance of an expert in child psychiatry to assess the child before taking cognizance of the case and issuing summons to the accused.
"There have been several instances where innocent people have been led astray by their counsellors, sometimes by the wayward counsel who would work towards their goal of 'winning at any cost' thereby stoking the flames."
This came when a couple who were going through a custody battle came to the court for resolution. When the court gave the custody to the Husband the wife filed an FIR against him in the month of March 2024. She accused him and his family members of sexually assaulting her daughter aged 9 under section 10 of the POCSO Act. The case was then sent to CBI by the Supreme Court due to its sensitive nature.
After analysing CCTV footage's which were years old and interviewing the child with the help of Child Psychiatrists from NIMHANS Bengaluru the CBI came to the conclusion that the FIR was unreliable and unfounded due to child being exposed to the dispute for a long period of time. Therefore they submitted a report that the case was not fit for prosecution.
The court accepted the CBI report and stated that the POCSO FIR was only made to nullify previous orders and acquire custody. They labelled the FIR as an abuse of court process and quashed the entire matter.
"Once the Report of the CBI after conducting a detailed investigation has come to the conclusion that the case is not maintainable. Then there is nothing that can be said to support the claim of Mother-'E' to acquire custody of 'M'", said the Court.
They applied the principle of welfare of the child and granted the father the custody of the child. They also ordered the family court in Bengaluru to ensure that the child is reintroduced to the father gradually under the supervision of the expert panel from NIMHANS.
The Court also asked its registry to send a copy of the order to the Chief Secretaries of all States and Union Territories to circulate the guidelines to all the police stations and the High Courts to ensure that it reaches all criminal and family courts.
The matter was heard by S.A Lakshmy Iyengar and Addl. Advocate General Kunal Vajani along with Adv. A Velan, Divya Swami, Ankitha Shelke, N Gowtham Raghunath, Skanda Rk Rao, Navpreet Kaur, Prince Singh, Nilay Rai, Rashik Hameed Mukilan M, Vanya Sharma, Yashvardhan Chauhan, Patil Rekha Chandra Gouda, Rajesh Gulab Inamdar, Rakshita Singh, BLN Sanjit, Ritik Grover, Guneet S Sidhu and Amitoj Chadha.
