Case at a glance: The Supreme Court has held that a parent facing an active POCSO prosecution for alleged sexual abuse of a child cannot be granted custody of that child, staying custody orders that had favoured the father despite pending criminal proceedings against him. The Court also permitted the mother to relocate both children to the United Kingdom for her employment, rejecting the suggestion that her career-driven relocations reflected an unstable or disqualifying lifestyle.
The parties married in 2011 and have two children, a son born in 2013 and a daughter born in 2019. The mother left the matrimonial home around 2018, alleging physical assault by the husband, and relocated multiple times within India before securing employment as a lecturer at a university in the United Kingdom.
In 2023, during a psychiatric evaluation prompted by the son's aggressive behaviour, the son disclosed incidents of alleged sexual abuse by his father. This led to an FIR and eventually a chargesheet against the father under the POCSO Act, with the father's challenge to the FIR still pending before the High Court. Despite the pending criminal case, the Family Court awarded sole custody to the father in 2024, and the High Court affirmed this in January 2026, reportedly characterising the POCSO allegations as “apparently motivated.” Supervised visitation reports showed both children displaying consistent distress, and the minor daughter's own drawing — depicting a wish to be sheltered under her mother's umbrella — featured in the proceedings.
The Key Question Before the Court
Where a parent faces an active, unresolved POCSO prosecution alleging sexual abuse of the child, can that parent still be granted custody — and can a lower court's own doubts about the credibility of those allegations be used to justify doing so before the criminal trial has run its course?
Why Custody Could Not Go to a Parent Facing Prosecution
The Bench held that a parent facing prosecution cannot be considered entitled to custody while criminal proceedings remain pending — granting custody to the father would be “totally unwarranted and unjustified,” and risked compromising the child's ability to testify freely and credibly in the ongoing criminal case. The primary consideration in any custody dispute, the Court reaffirmed, has to be the best interest of the children, assessed through the protective lens of the Juvenile Justice (Care and Protection of Children) Act, 2015.
The Court went further and expunged the High Court's own observations that had characterised the POCSO allegations as “apparently motivated,” finding this an improper pre-judgment of the criminal trial's outcome at the custody stage — a court deciding custody should not be seen to prejudge the credibility of a still-pending criminal prosecution.
Why the Mother's Relocation Was Not Held Against Her
- The lower courts' characterisation of the mother's repeated relocations and job changes as an unstable or “nomadic lifestyle” was rejected outright.
- The Court attributed her moves instead to the father's alleged harassment and to legitimate career and academic advancement, including her position at a UK university.
- The children's own distress in supervised visitation reports, and the daughter's drawing expressing a wish to be with her mother, were treated as genuine, weighty evidence of the children's best interests.
- The mother was permitted to relocate both children to the United Kingdom and enroll them in school there, subject to furnishing schooling details within six weeks and producing the children before the courts as directed.
Why This Judgment Matters
- It reinforces that pendency of a POCSO prosecution against a parent is a significant, potentially disqualifying factor in custody disputes — not a neutral allegation to be waved aside merely because it arises amid a matrimonial dispute.
- It signals that lower courts should be cautious about pre-judging the credibility of POCSO allegations at the custody stage, since doing so could prejudice the ongoing criminal trial and the child's own testimony.
- It affirms that a mother's career mobility and relocation, including abroad, is not by itself evidence of an unstable or unfit parenting environment.
- It treats a child's own emotional evidence — including something as simple as a drawing — as legitimate material properly before a custody court.
What Should Advocates Take Away From the Judgment?
For Family Law Practitioners Handling Custody Disputes with Overlapping Criminal Proceedings
- Where a parent faces active POCSO or similar criminal proceedings, argue against granting that parent custody while the prosecution remains pending, citing this judgment directly.
- Resist any attempt by a custody court to make findings on the credibility of pending criminal allegations — that determination belongs to the criminal trial, not the custody proceeding.
For Counsel Representing Relocating or Working Parents
- Counter “unstable lifestyle” arguments against a working or relocating parent by documenting the legitimate career or safety reasons behind each move, as this judgment credits genuine career advancement over a bare pattern of relocation.
For Litigators Generally
- Note that this is an interim order in an ongoing appeal, with the matter listed again for January 2027 — treat it as the current operative position rather than a final, closed custody determination.
Key Takeaways
- A parent facing an active POCSO prosecution for alleged sexual abuse of a child cannot be granted custody while that prosecution remains pending.
- A lower court's own observations doubting the credibility of pending POCSO allegations were expunged as improper at the custody stage.
- A parent's career-driven relocations, including internationally, are not by themselves evidence of an unstable or disqualifying lifestyle.
- The mother was permitted to relocate both children to the UK, subject to furnishing schooling details and producing the children before the courts as directed; the matter remains listed for further hearing.
Frequently Asked Questions
This judgment addresses the situation while the prosecution is actively pending, holding that custody cannot go to that parent during that period. The final outcome will depend on how the underlying criminal proceedings are ultimately resolved.
Because making such a finding at the custody stage risks prejudging the credibility of allegations that are still to be tested in the pending criminal trial, and could affect the child's ability to testify freely and credibly in that trial.
Yes, according to this ruling. The Court rejected treating relocation or multiple job changes, by themselves, as proof of an unstable or unfit parenting environment, particularly where the moves reflect legitimate career advancement or were prompted by safety concerns.
Conclusion
In a dispute where a lower court had treated serious, pending abuse allegations as an inconvenience to work around, the Supreme Court restored the proper order of priorities: the pendency of a POCSO prosecution against a parent must weigh heavily against granting that parent custody, and a working parent's relocation should not be mistaken for instability.
Practical takeaway: In any custody dispute where one parent faces pending criminal allegations of abuse, lead with that pendency as a central, disqualifying factor — and be ready to counter any “unstable lifestyle” argument against a relocating or working parent with concrete evidence of the legitimate reasons behind each move.