The Supreme Court on Wednesday (September 23) permitted a mother to relocate her two minor children to the United Kingdom, while denying custody to the father who is facing prosecution under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The Court held that a parent facing prosecution under the POCSO Act cannot be considered entitled to custody of the children.

The Court noted that the son, during an examination at NIMHANS in 2023 after displaying aggressive behaviour, disclosed incidents indicating sexual abuse by his father. A police complaint was subsequently lodged, resulting in registration of a POCSO FIR against the father. A chargesheet has since been filed, while the father's challenge to the FIR remains pending before the Calcutta High Court.

The Court held that once a chargesheet had been filed in respect of allegations constituting an offence under the POCSO Act against the father, granting custody of the children to him would be "totally unwarranted and unjustified

“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.”, observed a bench of Justice Vikram Nath and Justice Sandeep Mehta.

The dispute arose after the marriage between the parties in September 2011. Their son was born in April 2013, while their daughter was born in January 2019.

The mother had left the matrimonial home in 2018 while she was four months pregnant. Thereafter, she moved between different institutions in pursuit of employment in India, before eventually securing employment as a Lecturer at the University of Hull in the UK.

The Family Court and subsequently the Delhi High Court had viewed her frequent relocations as indicative of an unstable or "nomadic" lifestyle and ultimately awarded custody of both children to the father. Aggrieved by which, the wife moved to the Supreme Court.

Disagreeing with the High Court's approach, the judgment authored by Justice Mehta allowed the relocation of the children with the Appellant-mother to UK. The Court relied upon the principles contained in Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015, particularly the principles relating to participation, best interest, safety and non-waiver of rights.

Referring to the Juvenile Justice (Care and Protection of Children) Act, 2015, the Court highlighted the principles of participation, best interest, safety and non-waiver of children's rights.

It held that the son's disclosure and safety could not be subordinated to the father's claim for custody while the criminal case remained pending.

“These principles, read together, make it clear that 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… Once the police has filed a chargesheet after investigation in respect of allegations constituting an offence under the POCSO Act against the respondent-father, granting custody of the child to the respondent-father would be totally unwarranted and unjustified. Needless to say, the primary consideration while deciding the issue of custody has to be the best interest of the children.”, the Court said.

The Court also expressed concern that handing custody of the son to the father during the pendency of the prosecution could affect the child's ability to give a free and fair deposition in the criminal case.

The Supreme Court strongly criticised the Delhi High Court for making observations on the veracity of the POCSO allegations while deciding the custody dispute.

It held that the observations describing the allegations as apparently motivated and a "counterblast" were "out of place, uncalled for and premature". The Court ordered that those observations be expunged and directed that they should not be taken into consideration in the proceedings arising from the POCSO FIR. The Court emphasised that the FIR was lodged following a disclosure made by the child to a psychiatrist at NIMHANS and that the police had subsequently filed a chargesheet after investigation.

Resultantly, the appellant-mother was accordingly, for the present, permitted to take the children to United Kingdom and get them admitted to a good school.

“The details of the children's schooling in United Kingdom shall be placed on record with an affidavit of the appellant-mother within six weeks from today.”, the Court directed the mother.

Moreover, the quashing petition filed by the respondent-father, pending before the High Court of Calcutta, shall be decided independently and on its own merits without being influenced by the observations made in the impugned judgment passed by the High Court of Delhi and/or by any observations made in this order.

The appeals were directed to be listed for re-hearing in January, 2027.

Cause Title: D VERSUS S

Citation : 2026 LiveLaw (SC) 981

Click here to download judgment

Appearance:

For Petitioner(s) :Mr. Zoheb Hossain, Sr. Adv. Ms. Ruchi Kohli, Sr. Adv. Mr. Nipun Katyal, Adv. Mr. Aishwary Mishra, Adv. Mr. Dhananjai Shekhawat, Adv. Mr. Dhananjay Kumar, Adv. Mr. Manan Sharma, Adv. Mr. Pranjal Tripathi, Adv. Mr. J N Singh, Adv. Mr. Arjav Jain, Adv. Mr. Surya Pratap Singh Rana, Adv. Mr. Shashank Shekhar, AOR Ms. Chitrangda Rastravara, AOR Ms. Srishti Mishra, Adv. Mr. Abhijeet Singh, Adv. Mr. Anirudh Singh, Adv. Mr. Aishwary Mishra, Adv. Mr. Dhananjai Shekhawat, Adv. Mr. Yuvraj Singh, Adv. Mr Jai Chauhan, Adv. Ms. Anushikha Rathore, Adv. Ms. Anushree, Adv.

For Respondent(s) :Mr. Shyam Divan, Sr. Adv. Mr. Prosenjeet Banerjee, Sr. Adv. Ms. Shreya Singhal, Adv. Ms. Arpith Jacob Varaprasad, Adv. Ms. Mhasilenuo Keditsu, Adv. Ms. Kushagra, Adv. Ms. Vijayrajeshwari, Adv. Ms. Anshika Sharma, Adv. Ms. Anshula Laroiya, Adv. Mr. Gautam Barnwal, Adv. Ms. Sakshi Singh, Adv. Mr. Sadashiv, AOR