Often False POCSO Case Launched Against Spouse To Avoid Handing Over Minor Child's Custody: Kerala High Court

Kerala High Court while quashing a POCSO case filed by the mother on behalf of her child against her divorced husband observed that there are instances where one spouse uses their minor child to file false POCSO case against the other, to win custody cases.“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 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.”As per factual matrix of the case, the FIR was filed by the mother of the child claiming that her ex-husband who got temporary custody of the child in the premises of Family Court, touched the penis of the victim with sexual intent and made comments about the size of the penis. The child also gave statement to the police saying that his father touched his organ used for urination.The father was then booked under Section 7 r/ w Section 8 (sexual assault), Section 9(l)(m)(n) (Aggravated Sexual Assault) of POCSO Act. The child in his statement to the Magistrate, further said that the accused had done the alleged acts many times on various occasions. The accused approached the High Court seeking to quash the case, arguing that the entire allegations levelled against him are false and were made with the intention of defeating him in the custody case.The mother refuted this by contending that the allegations were raised by the minor child and she hadn't persuaded him to do anything to implicate the accused. She also submitted that the child was conceived by Intrauterine Insemination using donor's sperm as they could not conceive naturally and the petitioner used to abuse her and the child. She also submitted that they had entered into a compromise before the divorce to give the child's custody to her and to provide monthly maintenance of Rs. 1000 for the child.Justice A. Badharudeen noted that the complaint was lodged 5 days after the alleged incident. The Court said that it was 'not digestible to prudence' to believe that the petitioner committed sexual assault on the minor when he got custody for limited hours in the Court premises. It observed,"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."The Court remarked that the allegations were an afterthought of the mother to defeat the custody case of the petitioner and such quashed the charges.Counsel for the Petitioner: Advocates Nithya R., Shajin S. HamedCounsel for the Respondents: Advocattes Jibu T. S. (PP), Shaijan C. George C, George, Vinai JohnCase No: Crl.MC 1861 of 2023Case Title: XX v State of Kerala and AnotherCitation: 2025 LiveLaw (Ker) 100Click Here To Read/ Download Order

Often False POCSO Case Launched Against Spouse To Avoid Handing Over Minor Child's Custody: Kerala High Court

Manju Elsa Isac

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