ON 23 SEPTEMBER 2026, a Supreme Court bench of Justices Vikram Nath and Sandeep Mehta held that a parent facing a POCSO chargesheet should not have custody of the child at the centre of the case. The child’s disclosure and safety, it said, cannot be subordinated to a custody claim. The next day, Justices J.B. Pardiwala and K.V. Viswanathan held that when a parent is accused in the middle of a matrimonial dispute, the police should not arrest in haste, and should first engage a child psychiatry or psychology expert, save in exceptional cases. The second judgment does not mention the first.
The two can be reconciled on their facts: one governs the stage before arrest or summons, the other the stage after a chargesheet. But they pull on the two concerns that run through the law on child sexual abuse. The system must act quickly and take a child’s allegation seriously. It must also avoid arresting, and publicly branding, a person on an accusation that later fails. In R v. E & Anr. (2026 INSC 1049), in a judgment written by Justice Viswanathan, the Pardiwala bench called this a balancing exercise.
THE ACT ITSELF leans towards the first concern. Section 19 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) requires anyone who knows of an offence, or fears that one is likely, to inform the police or a Special Juvenile Police Unit, and section 19(7) protects those who report in good faith. Section 29 directs a Special Court to presume, unless the contrary is proved, that a person prosecuted under section 3, 5, 7 or 9 committed the offence. Section 22 punishes a complaint that is false and made solely to humiliate, extort, threaten or defame.
R v. E did not change the Act. It added a step before arrest or summons in one defined setting, and said that step must not run counter to the Act’s object or dilute the stringency of its provisions.
THE CASE behind it began as a custody fight in 2018. It went through the Family Court, the High Court and the Supreme Court, which in March 2023 left custody with the father. In March 2024, while a related appeal was pending, the mother filed an FIR against the father and his relatives, alleging sexual abuse of the child. In April 2026, citing the sensitivity of the matter, the Supreme Court handed the investigation to the CBI, whose committee included a child psychiatrist and a clinical psychologist from a national mental-health institute.
The CBI concluded that the child’s account did not appear reliable. It cited contradictory statements, the absence of independent corroboration, CCTV footage suggesting a different sequence of events, and a psychological evaluation that found no signs of trauma consistent with the allegations. That evaluation recorded that prolonged parental conflict, continuing litigation and repeated discussion of the allegations may have influenced the child’s perceptions. Each factor, the CBI said, might be insufficient on its own; taken together, they showed the allegations were not made out.
Accepting the report, the Court quashed the FIR as an abuse of process. It said it was fully convinced the FIR had been registered only to lay a foundation for returning the child’s custody to the mother. Legal custody was to rest with the father, as the earlier courts had decided, and the Family Court, advised by an expert committee, was to manage the child’s re-integration.
THE SAFEGUARDS apply only when two conditions are both met. The offence is alleged against a parent, or another family member who lives under the same roof as the child. And a matrimonial dispute “of some form” exists between the parents, whether or not it is before a court. The police officer receiving the complaint is to verify this at the outset.
BEFORE ARREST, the FIR is still registered, but the investigating officer should not act in haste or arrest immediately. Arrest under section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) needs “reason to believe” that the accused committed the offence. A strained relationship between the parents, the Court observed, may leave the authorities unsure whether the allegation alone can safely be relied on, so “something more” is needed. The investigating officer or the Special Juvenile Police Unit must therefore 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 such Unit. The expert is ordinarily drawn from the Unit’s register under the POCSO Rules, 2020; if it has no suitable name, someone with equivalent qualifications may be engaged from outside it. The step may be skipped only in exceptional cases where the material is “palpable”, with reasons recorded in writing.
THE EVALUATION must be free from the influence of the complaining parent and of the investigating authorities, and the child must not be put under pressure, discomfort or repeated harassment. A support person appointed by the Child Welfare Committee may accompany the child, and the Committee’s separate power to take a child out of the family’s custody is untouched. The officer is not bound by the report, which the Court described as a tool in aid of discretion. It cannot be the sole basis for a chargesheet or a closure report, and the investigation continues in accordance with law.
PRIVATE COMPLAINTS, which POCSO allows directly to the Special Court under section 33, get the same treatment. Summoning, the Court held, is not a routine exercise, and a Special Court is not bound to take cognisance merely because a complaint has been filed. Where the two conditions are met, it must involve an expert before deciding whether to take cognisance and issue summons, subject to the same exception for recorded reasons.
COURTS FURTHER DOWN the line have duties too. Those dealing with remand and bail should examine whether the arrest decision took account of the strained relationship between the parents. In guardianship and custody proceedings, the Court adopted the Kerala High Court’s approach in Suhara v. Muhammed Jaleel (2019): registration of a POCSO case does not by itself mean the allegation is true, and should not become a ruse for defeating a parent’s legitimate claim to custody. The custody court is to form a prima facie view, case by case, from the material collected in the investigation. No hard and fast rule, the Court said, is possible.
The safeguards apply to investigations still in progress on 24 September 2026, and to private complaints in which summons had not been issued by that date.
THE COURT’S REASONS rest on timing. Section 22 punishes false complaints, but by the time it is invoked the accused may already have suffered prolonged incarceration, and the accusation may have shaped custody proceedings elsewhere. The Court spoke of a “growing menace”, and cited the Parliamentary Standing Committee’s 240th Report on the POCSO Bill.
It leaned on the arrest cases: Joginder Kumar (1994), which separated the power to arrest from its justification, and Arnesh Kumar (2014), which required police to check the statutory grounds before arrest. It cited Geddam Jhansi v. State of Telangana (2025) on specific allegations backed by material in domestic disputes, Achin Gupta v. State of Haryana (2024) on children as the main sufferers in matrimonial disputes, and Rosy Jacob v. Jacob A. Chakramakkal (1973) on the child’s welfare as the governing consideration. It also cited Ishwar Chand Sharma v. State of U.P. (2026 INSC 587), in which Justices B.V. Nagarathna and Ujjal Bhuyan, on 29 May 2026, quashed a POCSO complaint made while more than ten civil and criminal cases were pending between the parties. That bench, however, confined its observations to the facts before it, and said genuine cases of child sexual abuse must be dealt with swiftly and vigorously.
THE DAY BEFORE, the Nath bench had a different case. In D v. S (2026 INSC 1043), in an order written by Justice Mehta, a child had disclosed incidents suggesting abuse by the father to a psychiatrist during an examination. (The case is cited by initials because sections 23(2) and 33(7) of POCSO protect a child’s identity, which includes the family’s details.) An FIR followed and, after investigation, a chargesheet. The Family Court and the Delhi High Court gave custody to the father, the High Court describing the allegations as “apparently motivated” and a “counterblast”.
The Supreme Court allowed the mother, for the present, to take the two children to the United Kingdom, on conditions. Once a chargesheet has been filed, it held, granting custody to the father is “totally unwarranted and unjustified”. Custody with the accused could also affect the child’s ability to depose freely. It expunged the High Court’s remarks as “out of place, uncalled for and premature”, and added that even if the criminal case were later quashed, courts would have to examine the circumstances in which the allegations arose. The father’s petition to quash the FIR, pending in the Calcutta High Court, is to be decided independently. The order is interim, and it does not find that abuse occurred.
A JUNE RULING sits awkwardly beside R v. E. In Sheetal Vasant Thakur v. Chirag Arora (2026 INSC 638, 11 June 2026), Justices Sanjay Karol and N. Kotiswar Singh said a court should not order a psychological or psychiatric evaluation of a child as a matter of routine in custody or visitation disputes, must record specific reasons for doing so, and should follow the principle of minimum intrusion. That case, too, involved a child alleged to have been abused by a parent, with POCSO proceedings pending. It concerned evaluations ordered by courts in custody proceedings, not the investigation-stage evaluation in R v. E, which does not refer to it. But in every case that meets its two conditions, R v. E makes an evaluation the default, not the exception.
WHAT IS LEFT OPEN falls mostly to officers. The expert’s report is to be submitted “as expeditiously as possible”, with no deadline, and District Child Protection Units are to update their registers of experts. The Court did not define “palpable” material, so it is a police officer who will first decide what it means. How the report is weighed against other material is left to the officer or court, and for custody courts the Court said no rigid course can be fixed. The appeals in D v. S are listed for hearing in January 2027. Until a bench takes up both rulings, the law holds two instincts at once: an allegation made amid a matrimonial dispute needs “something more” before an arrest, and a court that calls one a counterblast before trial is, in the Supreme Court’s word, “premature”.
Editor’s note: This piece is based on the judgments in R v. E & Anr. (2026 INSC 1049), Sheetal Vasant Thakur v. Chirag Arora (2026 INSC 638) and Ishwar Chand Sharma v. State of U.P. (2026 INSC 587), the interim order in D v. S (2026 INSC 1043), and the POCSO Act, 2012.
