Father Facing POCSO Trial Cannot Get Child Custody: Supreme Court

The Supreme Court has held that once police have filed a chargesheet after investigating allegations constituting an offence under the POCSO Act against a father, granting custody of his child to him would be “totally unwarranted and unjustified”.

A Bench of Justices Vikram Nath and Sandeep Mehta allowed a plea by the mother, an academician, seeking permission to take her two minor children, aged 13 and seven years, to the United Kingdom, where she had secured employment and was presently working.

Court was dealing with the mother's appeal against the Delhi High Court's January 23, 2026 judgment, which had upheld a July 1, 2024 order of the Patiala House Court under the Guardianship and Wards Act, 1890. The family court had declared the father the sole custodian of the children, while granting visitation and interim custody rights to the mother.

The Delhi High Court had also rejected the mother's plea seeking permission to relocate the children to the United Kingdom.

How did the custody dispute arise?

The appellant-mother and the respondent-father were married in September 2011. Their son was born in April 2013. The mother claimed that when she was pregnant with their second child, she was forced to leave the matrimonial home following an assault. Their daughter was born in January 2019, five months after the mother had left the matrimonial home.

The mother later secured a well-paid job as a lecturer at the University of Hull in the UK, drawing approximately Rs 3 lakh per month. She approached the family court seeking permission to relocate the children to the UK, claiming that her financial position was significantly better than that of the father, who was earning Rs 17,000 per month as a part-time lecturer at a university in West Bengal.

What led to the POCSO case against the father?

Amid continued disputes and repeated litigation between the parties, the son began exhibiting signs of aggression. He was taken to the National Institute of Mental Health and Neuro Sciences (NIMHANS), Bengaluru, in October 2023.

During his examination, the boy disclosed incidents indicating sexual abuse by his father in the past. Acting on the psychologist's recommendations, an FIR was registered against the father under the POCSO Act.

The father subsequently approached the Calcutta High Court seeking quashing of the FIR. The plea was pending when the family court and later the Delhi High Court allowed the father to have custody of the children.

The courts had relied, among other factors, on what they perceived as the mother's “nomadic lifestyle”, noting that she had frequently changed jobs and moved to different locations between 2021 and 2023.

Why did the Supreme Court intervene?

The Supreme Court had, on February 23, 2026, stayed the operation of the Delhi High Court and family court orders after noting the son's emphatic reluctance to stay with his father.

Court observed that the child's body language exhibited a “morbid sense of fear” even at the thought of being in his father's company.

Although the father was subsequently allowed visitation rights, the son continued to show extreme reluctance to be in his company. The daughter, who was born after the mother had left the matrimonial home, had also hardly interacted with her father except during the temporary visitation period.

The Supreme Court noted that despite facing years of litigation and RTI applications, the mother had continued pursuing her career and secured better prospects for the children. On the other hand, Court observed that the father appeared to be channelising his energy and efforts into litigation instead of improving his career prospects and financial position to meet the children's future educational needs.

“The respondent-father has not made any endeavour to improve his financial standing by looking out for better prospects and has instead, continued to pursue litigation. This is a very important factor of the case which we cannot lose sight of,” the Bench said.

What did the Supreme Court say about the POCSO allegations?

The Supreme Court also rejected the Delhi High Court's observation that the allegations of sexual abuse appeared to be motivated and were in the nature of a counterblast to proceedings initiated by the father.

“We are unable to countenance this observation. The FIR was lodged pursuant to a spontaneous disclosure made by the boy to the psychiatrist at NIMHANS, who was engaged to examine and pacify the aggressive tendencies exhibited by the boy,” the Bench said.

Court held that the Delhi High Court's observations on the veracity of the POCSO FIR were “out of place, uncalled for and premature”, particularly when the FIR itself was under challenge before the Calcutta High Court.

The Supreme Court stressed that once police had filed a chargesheet after investigation into allegations constituting an offence under the POCSO Act against the father, granting custody of the child to him 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 Bench said.

Why did the Supreme Court deny custody to the father?

The Bench referred to the general principles of care and protection of children under Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

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

“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,” the Bench said.

Court said handing over custody of the son to the father could also frustrate the criminal proceedings because the possibility of the child giving a “free and fair deposition” would become negligible if he were placed in the father's custody.

Court further held that the eventual outcome of the criminal proceedings, by itself, could not erase the circumstances in which the child had made the disclosure or make his apprehensions irrelevant while determining his welfare and custody.

What did the Supreme Court say about relocating the children to the UK?

Court rejected the father's argument that relocating the children would result in them losing their Bengali cultural values and ethos.

It noted that the mother herself came from a Bengali family and could reasonably be expected to nurture the children in a manner that allowed them to retain their roots and cultural traditions.

The mother's counsel also submitted that, in her absence due to work-related travel to the UK, the daughter would repeatedly draw sketches of her mother and pray that she be brought under the mother's “protective umbrella”.

“We can quite visualise the plight of the children who have been deprived of the custody of both the parents because of the ongoing litigation continuing for more than seven years,” the Bench said.

The Supreme Court ultimately made absolute the stay granted on February 23, 2026, and held that the mother's plea to relocate the children to the UK was justified.

It directed the mother to get the children admitted to a good school in the UK and bring them back if so directed by a court. It also directed the Calcutta High Court to decide the father's plea seeking quashing of the POCSO FIR on its own merits.

The matter has been listed for consideration in January 2027.

Case Title: D Vs S

Bench: Vikram Nath and Sandeep Mehta

Date of Judgment: September 23, 2026