Pendency Of POCSO Proceedings Against A Parent Constitutes A Crucial Factor Barring Grant Of Child Custody: Supreme Court

"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." Supreme Court, in a significant ruling dated September 23, 2026, held that the safety and well-being of a child take precedence over a parent's claim to custody, particularly when that parent is facing pending criminal prosecution under the POCSO Act.

 A bench of Justices Vikram Nath and Sandeep Mehta observed that handing over the custody of a child to an accused parent would not only be contrary to the objectives of the Juvenile Justice Act but also potentially frustrate the criminal proceedings by impairing the child's ability to provide a free and fair deposition.

Child's welfare is paramount

The court underscored that the custodial rights of a parent are not absolute and must always be subordinated to the "best interests of the child." The bench noted that the disclosure made by the minor son to a psychiatrist at NIMHANS, which led to the registration of an FIR and the subsequent filing of a chargesheet, created a material change in circumstances that necessitated a complete re-evaluation of the custodial arrangement.

No scope for custodial rights during prosecution

The judges reasoned that as long as the respondent-father remains an accused facing a serious trial, he cannot be considered a suitable custodian. Any arrangement that places a child under the direct care and control of an alleged perpetrator of sexual abuse would be fundamentally contrary to the "Principle of safety" enshrined under Section 3(vi) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Observations on FIR veracity were premature

The court expressed its strong disapproval of the Delhi High Court’s earlier comments regarding the veracity of the POCSO FIR, branding those observations as "out of place, uncalled for and premature." The bench clarified that since the FIR was registered following a spontaneous disclosure by the child, any negative commentary on the complaint's merit by the High Court was an unwarranted interference that could prejudice the pending trial.

"Such findings would cause grave prejudice to the prosecution initiated on the basis of the statement made by the child victim, and hence, the observations made by the High Court of Delhi in the impugned judgment in this regard deserve to be, and are hereby expunged."

Financial stability and parental alienation

Addressing the broader context of the custody battle, the court rejected the "nomadic" label applied to the mother's career moves, instead commending her efforts to secure a stable and financially sound future for the children in the United Kingdom. The bench noted that the father's focus on "hounding" the mother through over 100 RTI applications rather than improving his own financial standing highlighted a "vindictive nature" that was detrimental to the children's welfare.

Dismissal of cultural loss arguments

The Supreme Court further dismissed the contention that relocating the children to the United Kingdom would lead to a loss of cultural ethos or Bengali values. The bench observed that there can be no legal presumption that living abroad inherently causes a child to lose touch with their roots, especially when the primary caregiver is committed to nurturing them in a culturally sensitive environment.

Final directions to ensure welfare

Ultimately, the court made the stay on the lower court’s custody order absolute, permitting the mother to relocate the children to the United Kingdom for schooling. The judges directed the mother to provide an undertaking to produce the children before any court if ordered, while explicitly stating that the pending quashing petition before the Calcutta High Court must be decided on its own merits, entirely uninfluenced by the observations made during the custody adjudication.

Date of Decision: 23 September 2026