Reportability Reportable
Bench Division Bench (2)
Importance High — Pan-India Directions
Result FIR Quashed; Custody to Father
Verified source: Supreme Court judgment dated 24.09.2026 (2026 INSC 1049) — full text on Indian Kanoon. The Court directed that the parties’ names be redacted to their initials; this note follows that direction. Bench, date and directions checked on 01.10.2026.
⚖ Case at a Glance
Case Title‘R’ v. ‘E’ & Anr. (names redacted by the Court)
Citation2026 INSC 1049 — Civil Appeal No. 13119 of 2026 with connected criminal appeals
Court & BenchSupreme Court — Justices J.B. Pardiwala & K.V. Viswanathan (judgment by K.V. Viswanathan, J.)
Date of Decision24 September 2026
ProvisionsPOCSO Act, 2012 (ss. 10, 22, 33); POCSO Rules, 2020 (Rules 4, 5); Section 35 BNSS, 2023; Section 25, Guardians and Wards Act, 1890
OutcomeFIR quashed; legal custody with the father; re-integration through the Family Court; safeguards for future cases
ResultAppeal Disposed — Directions Issued
Status: Recent judgment — no later reversal or stay found on the date of review.
Court Journey — Stage by Stage
Stage 103 Mar 2022Custody to Father
Family Court, Bengaluru
On the father’s guardianship petition under Section 25 of the Guardians and Wards Act, 1890, the Family Court directed the mother to hand over custody of the child, then about seven years old, to the father.
Stage 231 Jan 2023 – 29 Mar 2023Upheld
High Court of Karnataka and Supreme Court
The High Court dismissed the mother’s appeal while granting her detailed visitation. Her special leave petition was dismissed by the Supreme Court on 29.03.2023, and custody was handed to the father on 07.06.2023 under a later High Court direction.
Stage 328 Mar 2024 – 13 Jul 2026CBI Inquiry
FIR under POCSO and transfer to CBI
While the father’s appeal against modified visitation was pending, the mother lodged an FIR alleging sexual offences by the father and harassment by his family. The Supreme Court stayed the cross criminal cases, allowed the child to stay with the mother for the time being, and on 07.04.2026 transferred the investigation to the CBI, which formed a committee including two NIMHANS experts. The CBI’s final report found the allegations not made out.
Final24 Sep 2026Present JudgmentDisposed of
Supreme Court of India
The Court quashed the POCSO FIR and an older 2018 FIR, held that legal custody rests with the father, remitted the physical re-integration of the child to the Family Court with the help of an expert committee, terminated a fresh guardianship petition built on the quashed FIR, closed the contempt petition, and laid down safeguards to apply across the country.
Facts in Brief
The parents married in 2011 and separated in 2018. Custody litigation under the Guardians and Wards Act went in the father’s favour up to the Supreme Court, and the marriage was dissolved by the Family Court in 2023. In March 2024, while the child was in the father’s custody, the mother lodged an FIR alleging that the father had sexually abused the child. After examining CCTV footage, witness statements and a psychiatric and psychological evaluation by NIMHANS experts, the CBI concluded that the child’s account was not reliable and that the case was not fit for prosecution. The Supreme Court found that the FIR had been registered to lay a foundation for regaining custody.
Questions Before the Court
1
Whether the POCSO FIR against the father and his family should be quashed in light of the CBI’s report.
2
With whom the custody and guardianship of the child should rest, applying the welfare-of-the-child principle.
3
What safeguards, within the law, should apply when POCSO offences are alleged against a parent or a family member living under the same roof during a matrimonial dispute, so that irreparable harm is not caused before the truth is tested.
What the Court Decided
The FIR was quashed as an abuse of process, and the Court held that the child’s welfare is best served in the custody and guardianship of the father, with re-integration to be handled by the Family Court and an expert committee, and visitation to the mother thereafter. For future cases, the Court laid down safeguards that apply only when two threshold conditions are both met: (i) a POCSO offence is alleged against a parent or another family member living under the same roof as the child, and (ii) a matrimonial dispute of some form exists between the parents — which the police officer receiving the complaint must verify.
In such cases, the investigating officer should not act in haste or arrest immediately, and the officer or the Special Juvenile Police Unit shall engage an expert in child and adolescent psychiatry or clinical psychology, in consultation with the District Child Protection Unit (or the District Legal Services Authority where there is no DCPU), ordinarily from the register under Rule 5(1) of the POCSO Rules, 2020. The expert’s report aids the decision on whether there is “reason to believe” for arrest under Section 35 BNSS; it does not bind the officer and cannot be the sole basis for a chargesheet or closure report. In exceptional cases where the material is palpable, the expert may be dispensed with for reasons recorded in writing. For private complaints under Section 33 of the POCSO Act, the Special Court shall similarly obtain the expert’s evaluation before deciding to issue summons.
Directions at a Glance
- Safeguards apply to FIR cases where investigation is still in progress on 24.09.2026, and to Section 33 complaints where summons have not been issued by that date.
- District Child Protection Units shall update their registers under Rule 5 of the POCSO Rules, 2020 to include experts in child and adolescent psychiatry or clinical psychology.
- Courts dealing with remand and bail in such cases should examine whether the arrest complied with the statutory conditions, including the context of the strained relationship.
- Courts hearing custody or guardianship cases should not treat mere registration of a POCSO case as proof; they should form a prima facie view on the material, case by case.
- Copies to all High Courts (for every criminal court) and to Chief Secretaries of all States and Union Territories (for every police station), with attention to paragraphs 47–77.
The Rule Laid Down
Ratio
Where a POCSO offence is alleged against a parent or a family member living under the same roof and a matrimonial dispute exists between the parents, the police and the Special Court must obtain the evaluation of an expert in child and adolescent psychiatry or clinical psychology to aid the decision on arrest or summons — a balancing safeguard that operates within Section 35 BNSS and the POCSO framework without diluting the Act’s protection of children.
The Court described the safeguard as a balancing exercise: precautions that neither dilute the object of the Act nor weaken its provisions, while preventing irreparable harm to the accused.
How the Court Reasoned
Judicial notice of misuse. The Court referred to earlier decisions noting exaggerated allegations in matrimonial disputes and the use of the POCSO Act as a pressure tactic, and to High Court decisions (Kerala and Madras) cautioning Family Courts against treating a POCSO case as proof in custody matters.
Section 22 comes too late. Although Section 22 of the POCSO Act punishes false complaints, by the time it is invoked the accused may already have suffered arrest, and custody proceedings may already have been affected.
Arrest is a discretion, not a duty. Under Section 35 BNSS (formerly Sections 41 and 41-A CrPC), arrest needs “reason to believe”, and the long line of decisions from Joginder Kumar to Arnesh Kumar and Satender Kumar Antil stresses that arrest is not automatic. In strained-relationship cases, an expert evaluation helps the officer form that belief.
Child protection preserved. The evaluation must follow the POCSO Act and Rules, must not cause the child pressure or repeated harassment, and does not disturb the Child Welfare Committee’s role under Rules 4(4) to 4(7).
How It Sits With Earlier Law
FollowsRosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 — custody under Section 25 GWA is governed primarily by the welfare of the minor.
ReliesJoginder Kumar v. State of U.P., (1994) 4 SCC 260 and Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 — the existence of a power to arrest is different from its justification.
ReliesAchin Gupta v. State of Haryana, (2025) 3 SCC 756 and Geddam Jhansi v. State of Telangana, 2025 SCC OnLine SC 263 — caution against criminalising domestic disputes without specific allegations.
ApprovesSuhara v. Muhammed Jaleel, 2019 SCC OnLine Ker 1237 — mere registration of a POCSO case against a parent is not a ground to reject that parent’s custody claim.
How to Use This Judgment
In Delhi, where custody, maintenance and criminal cases between estranged parents often run side by side, this judgment is relevant at three points: at the police station (whether the threshold conditions are met and an expert has been engaged before any arrest), at remand and bail (whether the arrest complied with Section 35 BNSS in the light of the matrimonial context), and in the Family Court (that a POCSO FIR is not, by itself, proof against a parent seeking custody). Equally, the judgment does not dilute the POCSO Act: genuine complaints must be investigated in accordance with law, and the child’s protection remains paramount. This note is shared for general legal awareness and is not legal advice.
Statutes & Provisions
Section 35, BNSS 2023When police may arrest without warrant (formerly Sections 41 and 41-A CrPC, 1973).India Code →
Sections 22 and 33, POCSO Act 2012Punishment for false complaint or information; Special Court’s power to take cognizance on a complaint or police report.India Code →
Rules 4 and 5, POCSO Rules 2020Child Welfare Committee procedure; register of experts and qualifications maintained by the DCPU.India Code →
Section 25, Guardians and Wards Act 1890Title of guardian to custody of ward.India Code →
