Child Protection Principles Under POCSO Act Should Guide Custody Proceedings Too: Supreme Court

The Supreme Court has observed that the child-protective principles underlying the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) should inform judicial decision-making even in disputes related to custody, visitation and parental access involving child victims.

A bench of Justice Sanjay Karol and Justice N Kotiswar Singh observed that the process of adjudication can itself become a source of harm if adequate protections are not maintained.

“The principle underlying Section 33(5) of the POCSO Act, though arising in the context of criminal trial, reflects a broader recognition that repeated engagement of a child victim in legal processes may itself become a source of trauma. The said principle, though not mechanically applicable to custody proceedings, nevertheless provides important doctrinal guidance while evaluating processes involving repeated psychological interaction with a child victim”, the Court observed.

While dealing with the issue of psychological evaluation of the child who is also an alleged victim of sexual abuse in a custody dispute, the Court observed that courts must remain conscious of the risk that repeated interactions, evaluations and questioning may aggravate trauma rather than assist in the child's welfare.

The Court highlighted that the POCSO Act is founded on the principle that a child who has allegedly suffered sexual abuse should not be exposed to processes capable of causing further emotional harm, humiliation or secondary victimisation.

The Court noted that the legislative framework seeks not only to punish offenders but also to preserve the dignity, emotional integrity and mental well-being of children participating in legal proceedings.

Drawing from Sections 24, 33(5), 36 and 39 of the POCSO Act, the Court noted that the law embodies principles of minimum exposure and minimum re-traumatisation.

Section 24 requires police officers to record a child's statement in a child-friendly manner at a place chosen by the child and, as far as possible, by a woman police officer. Section 33(5) requires Special Courts to ensure that the child is not repeatedly called to testify. Section 36 empowers courts to ensure that the child is not exposed to the accused while recording evidence. Section 39 provides for assistance from translators, interpreters, special educators, experts and support persons to reduce trauma and facilitate participation in proceedings.

While these provisions arise in the context of criminal proceedings, they provide important guidance for courts dealing with child victims in other judicial proceedings, including custody and visitation disputes, the Court said.

The Court emphasised that courts must distinguish between therapeutic engagement intended to support a child's recovery and evaluative exercises undertaken as part of adversarial litigation.

“While the former may, in appropriate cases, aid the emotional rehabilitation of the child, the latter carries the potential of converting the child into an object of continuous forensic scrutiny to satisfy the claim of the parents and an unintended casualty in the legal tug of war between two bickering parents. The justice delivery system must, therefore, guard against any process which has the effect of prioritizing adversarial claims of litigating parties over the emotional safety and psychological integrity of the child, thus, compromising with the welfare of the child”, the Court observed.

Judicial procedures must conform to standards of sensitivity, minimum intrusion and psychological safety, the Court said. The Court stressed that the doctrine of the child's best interests cannot be confined to deciding custody arrangements alone but must also extend to the manner in which courts engage with children during the proceedings.

“The doctrine of “best interest of the child” cannot be confined to determining ultimate safe custody arrangements alone; it must also address the procedural architecture through which courts engage with the child during the pendency of proceedings. Judicial procedures themselves must, therefore, conform to standards of sensitivity, minimum intrusion and psychological safety of the child”, the Court observed.

The Court ultimately held that any interaction with a child victim must be guided by the principles of minimum intrusion and minimum exposure, while ensuring that the child's welfare and psychological well-being remain the paramount consideration.

Case no. – SLP(C) No. 18701-18702/2024

Case Title – Sheetal Vasant Thakur v. Chirag Arora

Citation : 2026 LiveLaw (SC) 618

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