NEW DELHI: The Supreme Court has laid down a set of safeguards to prevent the misuse of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) in matrimonial and child custody disputes, cautioning that false allegations can cause irreparable harm to an accused parent while also adversely affecting custody proceedings.
A Bench of Justices JB Pardiwala and KV Viswanathan, while dealing with a dispute between estranged parents involving allegations of sexual abuse against the father, said the safeguards would apply where a POCSO offence is alleged against a parent or family member living under the same roof as the child and a matrimonial dispute exists between the child’s parents.
It clarified that the police officer receiving the complaint must verify, at the stage of receipt of the complaint, whether such a matrimonial dispute exists between the parents.
The court stressed that the safeguards would not dilute the object or stringency of the POCSO Act, which is intended to protect children from sexual assault, sexual harassment, and sexual exploitation.
“What is needed is a balancing exercise: precautions that neither dilute the object of the Act nor weaken its provisions, while allowing sufficient leeway to ensure that irreparable harm is not caused to the accused,” it said.
The top court directed that where the threshold conditions are satisfied, the investigating officer should not act in haste or immediately resort to coercive action in the form of arrest after registration of an FIR.
It further directed that, in cases falling within the prescribed threshold, the investigating officer or the Special Juvenile Police Unit (SJPU) will engage an expert in child and adolescent psychiatry or clinical psychology, in consultation with the District Child Protection Unit (DCPU) or, where the DCPU is unavailable, the District Legal Services Authority.
The top court also made clear that the evaluation must comply with the POCSO Act and Rules and must ensure that the child is not subjected to pressure, discomfort or repeated harassment.
The Bench clarified that the investigating officer would not be bound by the expert’s findings, as the report would only assist the exercise of discretion.
The Supreme Court also prescribed safeguards for private complaints filed directly before a special court under Section 33 of the POCSO Act. It said such a complaint should not be initiated lightly and the special court must first apply its mind to determine whether there are sufficient grounds to believe that an offence has taken place.
