By Dr Swati Jindal Garg
The Protection of Children from Sexual Offences (POCSO) Act, 2012, was conceived as an unyielding legislative fortress—a law deliberately armed with stringent provisions, presumptions and procedures to protect children from sexual abuse. Its purpose is unambiguous: to ensure that the most vulnerable are protected from one of the gravest forms of exploitation.
But what happens when that formidable statutory shield enters the toxic terrain of a bitter matrimonial and custody dispute?
In ‘R’ v ‘E’ & Anr, decided on September 24, 2026, a Supreme Court bench of Justices JB Pardiwala and KV Viswanathan confronted precisely that question. The Court quashed a POCSO case against a father after an extensive investigation, including a CBI probe and expert assessments, found the allegations against him to be baseless. More significantly, the Court laid down safeguards for cases in which allegations of child sexual abuse arise against a parent or close family member in the midst of an acrimonious matrimonial or custody dispute.
The judgment is significant not merely because it brought an end to one bitter family dispute. It addresses a difficult institutional problem: how can the law remain uncompromising towards genuine child sexual abuse while ensuring that its extraordinary coercive machinery is not manipulated in a custody battle?
THE ANATOMY OF A CUSTODY WAR
The background to ‘R’ v ‘E’ reads like a painful illustration of how matrimonial conflict can engulf a child.
The parties, identified in the judgment as ‘R’, the father, and ‘E’, the mother, were locked in prolonged litigation over the custody and guardianship of their minor daughter, ‘M’. Their dispute travelled through the family courts and the High Court and ultimately reached the Supreme Court. After custody had been granted to the father, the conflict escalated dramatically. A POCSO FIR was subsequently registered against the father, alleging sexual assault of his daughter.
The matter eventually came under an extensive CBI investigation. The material gathered during the investigation, together with assessments by mental-health experts, led the Supreme Court to conclude that the allegations could not be sustained. The Court ultimately quashed the FIR and directed that legal custody of the child remain with the father, with the question of her physical reintegration being left to the family court under appropriate supervision.
But the Court’s concern went beyond the individual facts. It recognised the particular damage that can occur when an allegation of sexual abuse is introduced into an already bitter custody dispute. The Court noted that although Section 22 of POCSO penalises false complaints, invoking that provision after the event may come too late. As the judgment observed, by the time the machinery of Section 22 is set in motion, substantial damage may already have been caused to the person falsely accused.
An arrest, incarceration, public stigma and disruption of the parent-child relationship cannot always be repaired by an eventual acquittal or quashing of proceedings.
The Court, therefore, sought to build safeguards into the process at an earlier stage.
A CAREFULLY FENCED INTERVENTION
The Supreme Court was equally conscious of the danger at the other end of the spectrum.
The safeguards were not intended to weaken POCSO or create a special escape route for alleged offenders. They were directed at a narrowly defined category of cases in which the context itself raises the possibility that a criminal allegation may be intertwined with a bitter matrimonial or custody dispute.
The Court identified two cumulative conditions: First, the POCSO allegation must be against a parent or close family member who was residing with the child; second, there must be a pre-existing matrimonial, custody or guardianship dispute between the parents marked by serious acrimony. Only where these circumstances coexist do the additional safeguards come into play.
That limitation is central to the architecture of the judgment. The Court was not asking investigators to approach every POCSO allegation with suspicion. It was asking them to recognise that, in this particular setting, the surrounding family dispute may be relevant to the investigative process.
THE SAFEGUARDS
The judgment establishes a series of procedural protections:
- Expert evaluation before arrest: Where the threshold conditions are met, the investigating officer must ordinarily engage an expert in child and adolescent psychiatry or clinical psychology to evaluate the child before forming the requisite “reason to believe” for arrest under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The expert is to be drawn through the institutional framework contemplated by the Court, including the District Child Protection Unit or District Legal Services Authority.
- Power to arrest is not justification for arrest: The Court reaffirmed a basic principle of criminal jurisprudence: the existence of the power to arrest does not mean that arrest must automatically follow. A POCSO FIR arising in a custody dispute cannot, by itself, justify a mechanical arrest.
- A POCSO FIR is not proof: The mere registration of a POCSO case cannot automatically be treated as establishing the truth of the allegation. Nor can the FIR, standing alone, become a device for defeating a parent’s legitimate claim to custody or guardianship. The court dealing with the custody issue must independently assess the material before it.
- Expert opinion is an aid, not a verdict: The psychological or psychiatric assessment is intended to assist investigators and courts. It does not dictate whether a charge sheet should be filed or determine the ultimate guilt or innocence of the accused.
- Private complaints are also covered: The Court extended the safeguard to cases in which a special court is considering taking direct cognisance of a private complaint under Section 33 of POCSO. Where the prescribed conditions exist, expert evaluation is likewise to be considered before process is issued.
The apex court also directed that its judgment be circulated to High Courts, criminal courts and police authorities, underlining that these safeguards were intended to operate beyond the immediate case.
THE CHILD CANNOT BECOME THE BATTLEFIELD
The deeper concern running through the judgment is the position of the child caught between two warring parents.
The Court put the problem starkly: a child caught in the crossfire of an acrimonious parental dispute already faces profound emotional consequences. When the conflict escalates into an allegation that one parent has sexually assaulted the child, the stakes become immeasurably higher.
That does not mean that an allegation arising during a custody dispute is necessarily false. Nor does the existence of matrimonial hostility diminish the seriousness with which a genuine allegation must be investigated.
What it does mean is that investigators and courts must be alert to context without allowing context to determine the result in advance.
The Court’s intervention, therefore, attempts to establish a difficult equilibrium: neither disbelief of the child nor automatic acceptance of the allegation, but a more rigorous process for arriving at the truth.
A WIDER JUDICIAL CONCERN
The judgment forms part of a broader judicial concern about the conversion of matrimonial and family disputes into criminal litigation.
In Achin Gupta vs State of Haryana, the Supreme Court had earlier examined the misuse of criminal proceedings arising from matrimonial discord and cautioned against allowing criminal law to become an instrument in essentially private disputes.
Other decisions have similarly stressed that criminal allegations must be assessed against the specific evidence available rather than through generalized accusations against family members. In Geddam Jhansi, for example, the Supreme Court dealt with the continuation of criminal proceedings where the allegations lacked sufficient specific attribution.
But ‘R’ v ‘E’ adds a distinct dimension because the alleged offence involves a child and the extraordinary protective framework of POCSO. The challenge is consequently more delicate: the system must guard against misuse without creating any hesitation in responding to genuine abuse.
A SHIELD, NOT A WEAPON
The Supreme Court’s message is ultimately one of institutional balance.
POCSO must remain uncompromising when a child has actually been abused. But the exceptional powers that accompany such a law cannot be allowed to become automatic weapons in a family dispute.
The judgment, therefore, moves the focus upstream—from repairing injustice after a case has collapsed to preventing avoidable harm before it occurs.
Its most important contribution may lie in that distinction. A false allegation can destroy reputations, relationships and years of a child’s life even if it ultimately fails in court. At the same time, a genuine allegation cannot be discounted merely because the parents are fighting over custody.
The task for investigators and judges is thus neither to presume guilt nor to presume fabrication, but to investigate with greater care when the circumstances themselves raise legitimate concerns about possible manipulation.
The question that now confronts trial courts and family courts is how best to coordinate parallel criminal and custody proceedings so that neither process overwhelms the other—and, above all, so that the child does not become the instrument or casualty of the parents’ war.
The shield must remain strong. But the Supreme Court has now made clear that strength in the law must also include safeguards against its misuse.
—The author is an Advocate-on-Record practising in the Supreme Court,
Delhi High Court and all district courts and tribunals in Delhi
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