The Kerala High Court, in a judgment delivered last month, observed that there is a growing tendency in the recent years to foist false crimes against the biological father alleging sexual abuse of own child misusing the provisions of the POCSO Act when serious fight for custody of ward is pending resolution before the Family Courts.



The bench comprising Justice K. Harilal and Justice TV Anil Kumar observed that unless there are reliable materials capable enough to convince the allegation of sexual abuse to be well founded, mere registration of crime shall not be reckoned as a ground for rejecting the claim of the parent for custody of the child.

The bench was considering a matrimonial appeal against Family court order granting custody of a five year old girl (whose mother had died) to her father dismissing the claims of the child's grandmother. One of the issue raised in the appeal was whether criminal proceeding initiated against the father under POCSO Act has any relevance and impact in deciding the question of custody of the child? It was contended that the character of the guardian being one of the essential components stipulated in Section 17 of the Guardian and Wards Act, for determining the claim for permanent custody, the alleged sexual abuse of the ward by the parent himself certainly disqualifies him from being entitled to plead for permanent custody of the child.

In this context, the bench observed:

"In our opinion, mere registration of a crime under the provisions of the POCSO Act against the parent of the ward is no assurance to a Family Court that allegation of sexual abuse made against him is nothing but true. The allegation made against the biological father could be true in rare cases, but could be wholly false also. The Family Court, before which such registration of crime is proved must necessarily apply its mind and endeavour to find out the true circumstances which activised the registration rather than being allured by the mere fact of registration. Unless a very cautious approach is adopted by the Family Court to ensure that information on which crime was registered is not frivolous and vexatious, many a innocent parent fighting for custody of his own ward would be victim of false implication of crimes under the POCSO Act. There is a growing tendency in the recent years to foist false crimes against the biological father alleging sexual abuse of own child misusing the provisions of the POCSO Act when serious fight for custody of ward is pending resolution before the Family Courts "

The bench further observed that the registration of crime against the parent is not a ruse for defeating his legitimate claim for custody of the ward. It said:

"Family Courts to whose notice registration of crime under the POCSO Act is brought owe an onerous responsibility to ensure that the registration of crime against the parent is not a ruse for defeating his legitimate claim for custody of the ward. The Family Courts ought to examine the outcome of investigation of the crime placed before the court and also take into consideration all relevant facts and circumstances which would help the Judge form a prima facie opinion as to whether the allegation of sexual abuse of the ward is baseless or not. Each case requires to be approached and evaluated on its own facts and we realise that no hard and fast approach could be laid in this respect at all. We do not mean to say that Family Courts should disregard the materials collected by the investigating agency in the crime and hold a total independent enquiry in order to get at the truth or veracity of the allegation. We make it clear that unless there are reliable materials capable enough to convince the allegation of sexual abuse to be well founded, mere registration of crime shall not be reckoned as a ground for rejecting the claim of the parent for custody of the child."

Upholding the Family Court order, the bench said that, in the present case, it was not established by any materials that the allegation of sexual abuse against the father is true or convincing.

Read Judgment