Parent Facing POCSO Charges Cannot Claim Child Custody: Supreme Court
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Prioritizing child safety and welfare above all custodial claims, the Supreme Court has ruled that a parent facing prosecution under child protection laws cannot be granted custody of minor children. Striking down a High Court order that had branded a working mother's career shifts as a nomadic lifestyle, the Apex Court permitted the mother to relocate with her minor children to the United Kingdom for better educational and career prospects.
A Bench of Justice Vikram Nath and Justice Sandeep Mehta heard the civil appeals filed by the appellant-mother challenging a Delhi High Court judgment which had affirmed a Family Court order granting sole custody of two minor children to the respondent-father. The dispute originated from a petition filed by the father under Section 7 read with Section 25 of the Guardianship and Wards Act, 1890.
Key Takeaways
POCSO Prosecution Bar to Custody: A parent facing trial or charges under sexual offense laws cannot claim child custody, as handing over custody risks compromising child safety and trial integrity.
Career Mobility Is Not Nomadic Living: A working mother relocating across cities or abroad to secure financial stability for her children cannot be unfairly penalized or labeled as leading a nomadic lifestyle.
Child's Best Interests Supersede Alienation Claims: In custodial adjudications, the genuine comfort, psychological safety, and explicit preferences of minor children override rigid principles or experiments regarding parental alienation.
Extraterritorial Relocation Permitted: Courts may allow a primary caregiver to relocate minor children abroad if it guarantees superior financial security, educational opportunities, and holistic well-being.
Court Observations and Directions
In summary, the Apex Court underscored that the welfare and safety of the child are paramount, emphasizing that granting custody to an accused parent facing serious criminal allegations under POCSO Act is completely untenable. The Supreme Court firmly rejected the High Court's adverse remarks on the mother's career moves, observing that her persistent efforts to secure respectable employment amidst relentless litigation reflected commitment rather than instability.
Evaluating the statutory mandate, the Apex Court observed that "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... 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."
Ratio
A parent undergoing prosecution for offences under child protection legislation cannot be entrusted with child custody, as the child's safety and free testimony take precedence over parental rights. Furthermore, a primary caregiver's relocation for genuine employment opportunities to secure a better future for the children cannot be characterized as a nomadic lifestyle to deny custody or permission to relocate.
Background
The matrimonial dispute arose after the spouses separated in 2018 when the mother was four months pregnant with their second child. The mother retained custody of both minor children while striving to build an academic career. She moved across various institutions, including IIT Jodhpur, VIT Vijayawada, and Bengaluru, before securing a prestigious teaching position at the University of Hull in the United Kingdom.
The father instituted guardianship proceedings under Section 7 and Section 25 of the Guardianship and Wards Act, 1890 and subjected the mother to numerous RTI queries and complaints, which affected her employment. In 2023, during psychiatric evaluation at NIMHANS, the minor son disclosed allegations of past sexual abuse by the father, leading to the registration of an FIR under the Protection of Children from Sexual Offences Act, 2012 and subsequent filing of a chargesheet.
Despite these allegations, the Family Court and the Delhi High Court granted sole custody to the father, reasoning that the mother led a nomadic lifestyle and that the criminal complaint was a counterblast. Reversing these findings, the Supreme Court noted the statutory principles under Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015, expunged the premature observations made by the High Court regarding the POCSO FIR, and granted interim custody to the mother with permission to relocate the children to the United Kingdom.
Case Details:
Case No.: Civil Appeal No(s). 12774 of 2026
Neutral Citation: 2026 INSC 1043
Case Title: Debarati Bhunia Chakraborty v. Suman Sankar Bhunia
Appearances:
For the Petitioner(s): Mr. Zoheb Hossain, Senior Advocate
For the Respondent(s): Shri Shyam Divan, Senior Advocate
Source: 2026 CaseBase(SC) 7961
Also Read: Supreme Court Guidelines on Misuse of POCSO Act in Matrimonial Cases
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