In 'R' v. 'E', a bench of Justice J.B. Pardiwala and Justice K.V. Viswanathan addressed the misuse of the POCSO Act in child-custody disputes between parents. The Court said registering an FIR against a parent should not automatically lead to arrest, and an independent psychological assessment of the child by experts must come before any decision to arrest. It quashed the FIR in the case after NIMHANS experts found the allegations unreliable.
The POCSO Act remains a strong law to protect children, and genuine complaints must be acted on. But in custody battles, courts will now look for expert evaluation of the child before a parent is arrested. Both parents should get legal advice early in any custody dispute.
For how custody and visitation are decided in Delhi family courts, see our guide to the child custody case in Delhi.
The Protection of Children from Sexual Offences Act, 2012 sets out serious offences against children, special courts and child-friendly procedures for recording a child's statement. Section 19 requires anyone who knows of such an offence to report it, and Section 22 punishes knowingly false complaints made by adults, though not by children. Arrest is governed by the BNSS, under which Section 35 [old Section 41 CrPC] requires the police to have reasons for arrest. Registering an FIR does not by itself make arrest compulsory.
Custody of children is decided by Family Courts under laws such as the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, where the child's welfare is the paramount consideration. When a POCSO allegation arises during a custody dispute, the criminal case and the custody case run separately, and courts may rely on assessment of the child by qualified professionals.
No. The POCSO Act remains fully in force and genuine complaints must be investigated seriously. The ruling addresses how the police should act when an allegation arises within a custody dispute between parents, saying arrest should not be automatic and an independent specialist assessment of the child should come first.
The Court referred to an independent psychological assessment of the child by qualified specialists. In this case, specialists from NIMHANS examined the child. Generally, such assessments are done by qualified child psychologists or psychiatrists through a child-friendly process, so the child is not harmed by repeated questioning.
Section 22 of the POCSO Act punishes an adult who makes a false complaint or gives false information with the intention to humiliate, extort, threaten or defame. No punishment applies to a child who makes a false complaint. Proving intent is required, so this is decided on facts.
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