Supreme Court of India· 23 September 2026

Can a court deciding custody record findings doubting the veracity of a pending FIR against a parent?

DEBARATI BHUNIA v. SUMAN SANKAR

2026 INSC 1043
Coram: Justice Vikram Nath · Justice Sandeep Mehta

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Answer

A court deciding custody cannot record findings doubting the veracity of a pending FIR, since such findings prejudice the criminal prosecution.

No. A court deciding a custody dispute cannot record findings casting doubt on the veracity of a pending FIR, since such findings cause prejudice to the prosecution initiated on the basis of the statement made by the child; such observations deserve to be expunged and left out of consideration in the criminal proceedings. (¶52, 53)

Headnote

Guardianship and Wards Act, 1890 — s.7 — s.25 — Protection of Children from Sexual Offences Act, 2012 — Juvenile Justice (Care and Protection of Children) Act, 2015 — s.3 — Custody — Best interest of the child — (Interim order) Protection of Children from Sexual Offences Act, 2012 — Pending prosecution — Custody bar — Held: A parent facing prosecution under the POCSO Act cannot be considered entitled to custody of the child while the prosecution is pending. (¶54, 56) Custody proceeding — Pending FIR — Observations on veracity — Prejudice — Held further: A court deciding custody cannot record findings doubting the veracity of a pending FIR, since such findings prejudice the criminal prosecution. (¶52, 53) Custody and relocation — Directions — On facts, held: The stay on the custody order was made absolute and the mother was permitted to relocate the children to the United Kingdom for the present; the appeals remain pending. (¶62, 63)

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In the Court's own words

Paragraph 52Further, the High Court of Delhi, while deciding the guardianship appeal has made certain reflections and observations on the merits of the prosecution emanating from the POCSO FIR, which, in our opinion, are absolutely unjustified. At paragraph 53 of the impugned judgment, the High Court held that the allegations of sexual abuse levelled by the appellant-mother against the respondent-father appear to be clearly motivated and in the nature of a counterblast to the proceedings initiated by the respondent-father. We are unable to countenance this observation. The FIR was lodged pursuant to a spontaneous disclosure made by the boy to the psychiatrist at NIMHANS, who was engaged to examine and pacify the aggressive tendencies exhibited by the boy. Few discrepancies in dates and sequence of events which were sought to be highlighted by Shri Divan during the course of hearing are insignificant for the present controversy.

Paragraph 53We are of the firm opinion that the observations made by the High Court in the impugned judgment on the veracity of the POCSO FIR were out of place, uncalled for and premature. The FIR itself being subjected to challenge before the High Court of Calcutta, the High Court of Delhi ought to have refrained from making comments on the veracity thereof. Such findings would cause grave prejudice to the prosecution initiated on the basis of the statement made by the child victim, and hence, the observations made by the High Court of Delhi in the impugned judgment in this regard deserve to be, and are hereby expunged and shall not be taken into consideration in the course of proceedings emanating from the said FIR.

Acts & Sections

s.7 Guardianship and Wards Act, 1890s.25 Guardianship and Wards Act, 1890Protection of Children from Sexual Offences Act, 2012s.3 Juvenile Justice (Care and Protection of Children) Act, 2015

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Also decided in this judgment

Can a parent facing prosecution under the POCSO Act be considered entitled to custody of the child while the prosecution is pending?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections