The Supreme Court on Thursday issued nationwide safeguards aimed at preventing the misuse of the  Protection of Children from Sexual Offences (POCSO) Act in matrimonial and custody disputes, reported Bar and Bench. The directions came while the court quashed an FIR alleging that a minor girl had been sexually assaulted by her father after a Central Bureau of Investigation (CBI) probe found the allegations unreliable.

A Bench of Justices J B Pardiwala and K V Viswanathan raised concerns over what it described as a growing practice of estranged spouses making false Child sexual abuse allegations against each other to gain an advantage in ongoing court proceedings. Such allegations, the Bench said, can cause irreparable harm, public humiliation and unwarranted arrest to the accused parent before they have an opportunity to prove their innocence.

The Bench noted that Section 22 of the Pocso Act provides for punishment for false complaints. However, it observed that “by the time Section 22 is invoked substantial damage would be caused to the party falsely charged”, including through prolonged incarceration or an adverse impact on pending guardianship or custody proceedings. Against this backdrop, the court held that “certain precautions must be taken, within the four corners of the law, to prevent such harm from befalling the accused”.

The top court instituted mandatory procedural safeguards that police officers and special courts must follow whenever specific threshold conditions are met.

Investigating officers cannot make hasty or routine arrests under Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the law governing when police may arrest a suspect without a warrant, without first establishing a genuine reason to believe” that the crime was committed.

Before making an arrest or taking coercive steps, the police or Special Juvenile Police Unit (SJPU) must engage an expert in child and adolescent psychiatry or clinical psychology, in consultation with the District Child Protection Unit (DCPU), to independently evaluate the child victim.

The police must take the child mental health expert’s evaluation report into consideration alongside other evidence before deciding whether there is sufficient justification to effect an arrest.

When a parent approaches a special court with a direct private complaint under Section 33 of the Pocso Act, the judge must involve a child psychiatric expert to evaluate the child before deciding whether to take judicial note of the case and issue summons to the accused.

The Bench further clarified that the safeguards would apply only where two threshold conditions are met.

First, an offence under the Pocso Act must be alleged to have been committed by a parent or family member living under the same roof as the child victim. Second, a matrimonial dispute must exist between the parents of the child victim, indicating the possibility of a strained relationship.

The Bench further laid down a duty on the police officer receiving the complaint to verify whether a matrimonial dispute exists between the parents when the complaint is received.

The directions came while the court was hearing a custody dispute between an estranged couple. After the husband secured custody rights, the mother filed an FIR in March 2024 alleging that the father and his family members had sexually assaulted their nine-year-old daughter under Section 10 of the Pocso Act.

A specialised CBI team, working with child psychiatrists from Nimhans, Bengaluru, examined years of CCTV footage, conducted forensic interviews and carried out clinical evaluations of the child. The agency found the allegations to be uncorroborated and unreliable, and concluded that they had been influenced by the child’s prolonged exposure to conflict between her parents. It consequently found the case unfit for prosecution.

The Supreme Court accepted the CBI’s final report and held that the Pocso FIR had been filed solely to defeat earlier court orders and regain custody of the child. Describing the criminal proceedings as a gross abuse of process, the Bench quashed the case in its entirety. Applying the welfare of the child principle, the top court restored legal custody to the father and directed the Bengaluru family court to oversee the child’s phased re-integration with her father.