POCSO Act Being Misused By Spouses Engaged In Child Custody Battles: Kerala High Court

The sole accused had approached the High Court seeking quashing of a case registered against him under Section 7 r/w Section 8, Section 9(l)(m)(n) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The Single Bench of Justice A. Badharudeen affirmed, “It is true that stringent provisions are incorporated in the PoCSO Act to punish the culprits who are involved in sexual assault, molestation and sexual harassment against children below 18 years. The intent behind the legislation is to protect the interest of the children from sexual exploitation. But in practical application, apart from registering so many genuine cases, misuse of the provisions of this Act to settle score is not unusual.”

Advocate Nithya R. represented the Petitioner while Public Prosecutor Jibu T.S. represented the Respondents.

Factual Background

The incident dates back to the year 2018, when the accused father was given temporary custody of the minor boy aged 7 years, as per the interim order of the Family Court. It was alleged that the accused touched the penis of the minor victim with sexual intent and made comments about the size of the penis, thereby committing the aforestated offences.

Arguments

It was the case of the Petitioner that the entire allegations were falsely raised by the respondent-de facto complainant, who got divorced from the petitioner, in order to defeat him in a custody matter concerning their minor child. It was submitted that the petitioner got custody of his minor son because of his affection towards him and he had no sexual intent.

It was the case of the Respondent-mother that the petitioner gave her consent to undergo IUI procedure to suppress his impotency from the outside world. It was also submitted that after the birth of the minor victim, the petitioner was too cruel to the victim, he used to call the minor victim a bastard and he uttered that he would kill him.

Reasoning

The Bench referred to the statement of the minor victim whereby he had disclosed that he had love towards his father since he used to provide sweets, juice etc., when he came to the court. On a question asked as to why he felt disaffection towards his father, he stated that the disaffection started when he went to the court and the father touched his head, legs and the organ used for urination.

The Bench explained that it is provided in section 7 of the POCSO Act that touching on the vagina, penis, anus or breast of the child or making the child touch the vagina, penis, anus or breast of such person or any other person, or doing any other act with sexual intent which involves physical contact without penetration is an act of sexual assault. Further, Section 30 deals with the presumption of culpable mental state which includes intention, motive, knowledge of a fact and the belief in, or reason to believe a fact.

Noting that the medical records produced by the wife would show that the victim was born from a donor, the Bench referred to the Assisted Reproductive Technology (Regulation) Act, 2021 wherein Section 31(1) specifically provides to treat the commissioning couple as parents of the child born through Assisted Reproductive Technology.

Elucidating on the law relating to the POCSO Act, the Bench opined,“ In cases when the husband and wife are in loggerheads and one among them sues for custody of a minor child, there are instances whereby the other spouse who is not ready to part with the custody of the minor used to fabricate facts to implicate the other spouse in PoCSO offences by using the child whose custody is sought for. The intention behind implicating the spouse who demands custody of the child is to avoid the claim for custody.

On a perusal of the facts of the case, the Bench noticed that the case stems from the filing of a petition by the petitioner for getting custody of the minor child and the allegation in particular is during the interim custody. “In fact, what emerges is that the allegations are an afterthought at the instance of the 2nd respondent to defeat the case of the petitioner, prima facie.”, it asserted.

Thus, allowing the petition, the Bench quashed the POCSO case registered against the petitioner.

Cause Title: XXXX v. State Of Kerala (Neutral Citation: 2025:KER:10981)

Petitioner: Advocates Nithya R., Shajin S.hameed

Respondents: Public Prosecutor Jibu T.S., Advocates Shaijan C George, Vinai John

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