SC Curbs POCSO Misuse in Custody Cases |...

CURRENT AFFAIRS | 24 SEPTEMBER 2026

On 24 September 2026 the Supreme Court laid down a set of procedural safeguards designed to prevent the Protection of Children from Sexual Offences Act, 2012 (POCSO) from being misused in a narrow and specific situation: where the allegation is made against a parent or a family member living under the same roof, and there is a live matrimonial dispute between the child’s parents. Deciding ‘R’ v ‘E’ & Anr and connected matters, reported as 2026 LiveLaw (SC) 982, a Bench of Justice JB Pardiwala and Justice KV Viswanathan quashed an FIR against a father after the investigation found the allegations unsustainable.

It is important to read the ruling for what it is. The Court did not say, and this article does not say, that POCSO complaints are generally false. POCSO exists because child sexual abuse is chronically under-reported and hard to prove, and the overwhelming majority of complaints under it have nothing to do with custody litigation. What the Court addressed is a defined sub-class of cases in which the criminal process can become an instrument of a custody battle, and the harm then runs in two directions at once — to an innocent accused parent, and to the child who is drawn into a proceeding as a witness against one of them. As the judgment puts it, certain precautions must be taken within the four corners of the law to prevent such harm.

What the Court directed

The directions, as reported by LiveLaw, form a sequence. First, when a complaint of this description is received, the police officer must verify whether a matrimonial dispute exists between the parents — a factual check that determines whether the rest of the regime applies at all. Second, there is no automatic arrest on registration of an FIR. The investigating officer’s power to arrest remains discretionary and must be exercised on the satisfaction required by Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the provision governing arrest by a police officer without a warrant.

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Third, and this is the genuinely novel step, before deciding whether grounds for arrest exist the investigating officer or the Special Juvenile Police Unit must engage an expert in child or adolescent psychiatry or clinical psychology. That requirement may be dispensed with only in exceptional cases, for reasons recorded in writing. Fourth, the Court fixed the weight of that expert opinion carefully: the report aids the officer’s discretion but does not control it, and it cannot be the sole basis for either a chargesheet or a closure report. Fifth, the same expert requirement applies to a private complaint under Section 33 of the POCSO Act before the Special Court issues summons.

Three further directions complete the scheme. In custody proceedings, the mere registration of a POCSO case should not by itself give rise to an inference that the allegation is true. District Child Protection Units must maintain and update registers of child psychiatry and psychology experts under the POCSO Rules, 2020. And courts dealing with remand or bail must examine whether these safeguards were complied with. The judgment was directed to be circulated to High Court Registrars and to the Chief Secretaries of States and Union Territories.

Constitutional / Legal Framework

POCSO, 2012 is a special, gender-neutral statute: a “child” is any person below eighteen years, and both victim and offender may be of any gender. It creates graded offences (penetrative and non-penetrative sexual assault, and their aggravated forms), child-sensitive procedure, and Special Courts. Section 33 governs the procedure of the Special Court, including its power to take cognizance without committal and its duty to ensure the child is not repeatedly exposed to the accused. Section 29 creates a presumption of guilt once prosecution for certain offences is launched, a reverse-burden provision that makes the entry point into the process unusually consequential — which is precisely why the Court has now placed a filter before arrest and before summons. Section 22 penalises false complaints and false information. Constitutionally, the anchor is Article 21: no person shall be deprived of life or personal liberty except according to procedure established by law, which the Supreme Court has read to include a fair procedure, the presumption of innocence, and protection against arbitrary arrest. The Court’s insistence that arrest be a reasoned decision under Section 35 BNSS rather than an automatic consequence of registration echoes the arrest discipline laid down in Arnesh Kumar v State of Bihar (2014), where the Court held that arrest is not mandatory merely because an offence is cognizable and required police to justify arrest by reference to the statutory conditions. The power to quash an FIR to prevent abuse of process, formerly Section 482 of the CrPC, is now Section 528 of the BNSS.

The two threshold conditions

The single most examinable feature of this judgment is its deliberate narrowness. The safeguards are gated by two cumulative conditions. One, the POCSO offence must be alleged against a parent or a family member residing under the same roof as the child. Two, there must be a matrimonial dispute between the child’s parents. Both must be present. A POCSO complaint against a neighbour, a teacher, a stranger or a relative who does not live with the child is untouched by this regime; so is a complaint within a household where no matrimonial dispute exists. The Court has not diluted POCSO; it has built a checkpoint on one narrow road into it.

The CLAT Angle

This is a textbook rule-with-conditions problem, and setters love conditions that are cumulative rather than alternative. Expect a principle stating the two thresholds and the arrest rule, followed by fact patterns: an allegation against a father with a pending divorce petition (safeguards apply); an allegation against a father with no matrimonial dispute (safeguards do not apply); an allegation against a live-in uncle in a household where the parents are separated (safeguards apply, since a co-residing family member qualifies); an arrest made immediately on registration without expert consultation and without written reasons (non-compliance, examinable at the remand stage). A second, subtler line of questioning targets the weight of the expert report: it aids but does not control discretion and cannot alone found a chargesheet or a closure — so an option saying “the officer must follow the expert’s opinion” is wrong, and so is one saying “the expert’s report alone justifies closure”. Keep the numbering straight too: Section 35 of the BNSS deals with arrest without warrant, while Section 33 of POCSO deals with Special Court procedure.

The case behind the directions

The parties are anonymised in the reported judgment as ‘R’ and ‘E’, and no identifying detail of the child is available or appropriate to reproduce. The FIR against the father invoked Section 10 of the POCSO Act (aggravated sexual assault), Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (cruelty to a child), and the offences corresponding to the former Sections 323, 504 and 506 of the Indian Penal Code, now carried into the Bharatiya Nyaya Sanhita, 2023. A CBI investigation concluded that the allegations were not made out against the accused and that the matter was not fit for prosecution, and a psychiatric evaluation did not disclose signs of trauma consistent with the allegations. On that material the Court quashed the FIR against the father. A cross-FIR against the mother was also quashed, the Court observing that much water had flown under the bridge.

The Bench located its reasoning in an existing line of authority. It referred to Geddam Jhansi v State of Telangana and Achin Gupta v State of Haryana on the misuse of criminal process in matrimonial conflict, to Ishwar Chand Sharma v State of UP, to the Kerala High Court’s decision in Suhara v Muhammed Jaleel, and to Rosy Jacob v Jacob A Chakramakkal, the classic authority on the welfare of the child as the paramount consideration in custody.

Key Facts

Case: ‘R’ v ‘E’ & Anr and connected matters; 2026 LiveLaw (SC) 982; reported 24 September 2026.
Bench: Justice JB Pardiwala and Justice KV Viswanathan.
Threshold 1: POCSO offence alleged against a parent or a family member living under the same roof.
Threshold 2: a subsisting matrimonial dispute between the child’s parents. Both conditions must be met.
No automatic arrest: arrest stays discretionary and must satisfy Section 35, BNSS 2023.
Expert filter: a child or adolescent psychiatry or clinical psychology expert must be engaged before the arrest decision; dispensable only in exceptional cases, for written reasons.
Weight of the report: it aids but does not control discretion, and cannot alone found a chargesheet or a closure report.
Private complaints: the same expert requirement applies under Section 33, POCSO before the Special Court issues summons.
Custody courts: registration of a POCSO case does not by itself support an inference that the allegation is true.
Institutional step: District Child Protection Units to update expert registers under the POCSO Rules, 2020; remand and bail courts to check compliance.
Outcome: FIR against the father quashed after the CBI found the allegations not made out; the cross-FIR against the mother also quashed.
Precedents: Geddam Jhansi; Achin Gupta; Ishwar Chand Sharma; Suhara v Muhammed Jaleel (Kerala HC); Rosy Jacob v Jacob A Chakramakkal.

Balancing two harms

Every safeguard of this kind carries a cost, and an honest answer in an essay or interview should say so. A filter placed before arrest could, in a genuine case, slow down the removal of a child from a dangerous household. The Court’s design answers that objection in three ways: the filter is confined to a narrow class; it can be dispensed with in exceptional cases on written reasons; and it does not touch the power of the investigating officer to arrest where the statutory conditions in Section 35 BNSS are satisfied. Equally, the opposite harm is real. An arrest on an unverified allegation of this nature destroys a parent’s reputation and employment long before any trial, and the child is left as the instrument of that destruction.

The deeper point is one CLAT passages return to repeatedly: a protective statute becomes less protective when its process can be weaponised, because every misuse spends a little of the credibility genuine complainants depend on. Directing that expert opinion be taken before arrest, while refusing to let that opinion decide the case, is the Court’s attempt to keep both concerns alive at once.

Memory Hook / Mnemonic

Remember the gate as “ROOF + RIFT” — the accused is under the same roof, and the parents are in a matrimonial rift. Both, or the regime does not apply. For the sequence after the gate, use “V-E-A” — Verify the dispute, Engage the expert, then Assess arrest under Section 35 BNSS. And for the limits of the expert’s role: “The expert advises, the officer decides, the court reviews.”