A Father Facing POCSO Case Cannot Be Considered Entitled To Child Custody: Supreme Court

The Bench permitting mother to relocate children to UK, noted that granting custody to a father facing POCSO prosecution, apart from being contrary to the solemn object of the Juvenile Justice Act, may also lead to the prosecution being frustrated.

Update: 2026-09-24 06:00 GMT

Justice Vikram Nath, Justice Sandeep Mehta, Supreme Court

The Supreme Court has held that a parent facing prosecution under the Protection of Children from Sexual Offences Act cannot be considered entitled to custody of a child, irrespective of the eventual outcome of the criminal proceedings, so long as the prosecution remains pending. The Court clarified that the safety and disclosure of a child cannot be subordinated to a parent's claim to custody merely because the underlying criminal case has not attained finality.

The parties married in 2011, and their son and daughter were born in 2013 and 2019 respectively, where in 2023, the son made a disclosure of sexual abuse by the father during counselling at NIMHANS, leading to registration of an FIR under the POCSO Act and, subsequently, a chargesheet. The Family Court nonetheless granted sole custody to the father in 2024, a decision affirmed by the Delhi High Court in January 2026, prompting the present appeals.

Ruling on cross-appeals arising out of a prolonged custody dispute, the Court also permitted the mother to relocate the two minor children to the United Kingdom, where she is employed as a university lecturer, holding that continued denial of relocation would aggravate the complete parental alienation of children already caught in litigation spanning over seven years.

A Bench of Justice Vikram Nath and Justice Sandeep Mehta observed, “…the son’s disclosure and his safety cannot be subordinated to the father’s claim for custody particulars when the criminal case is still pending. Under no circumstances, the respondent-father, as long as he is facing prosecution, can be considered to be a person entitled to custody of the children. Such a course of action, apart from being contrary to the solemn object of the Juvenile Justice Act, may also lead to the prosecution being frustrated, inasmuch as, were the custody of the son to be handed to the respondent-father, the possibility of the son giving a free and fair deposition in those proceedings would virtually be negligible”, the Bench said.

Senior Advocate Zoheb Hossain appeared for the appellant and Senior Advocate Shyam Divan appeared for the respondent.

The parties married in 2011, and their son and daughter were born in 2013 and 2019 respectively. The mother left the matrimonial home in 2018 amid allegations of physical assault, following which prolonged litigation ensued across multiple forums, eventually consolidated before the Family Court, Delhi.

During pendency, the Supreme Court interacted with the children and directed supervised visitation with the father, whose reports recorded consistent reluctance and distress on the part of both children. The Court found the High Court's observations doubting the veracity of the POCSO FIR to be premature and liable to prejudice the pending criminal trial, and expunged them. It also rejected the characterisation of the mother's employment history as "nomadic," holding her career efforts were necessitated by the father's conduct, including over a hundred RTI complaints against her.

The Court stayed the custody orders of the courts below, permitted relocation of the children to the UK subject to an undertaking to produce them before any court as directed, and directed that the pending quashing petition before the Calcutta High Court be decided independently of the expunged observations. The appeals were listed for further hearing in January 2027.