Supreme Court of India· 23 September 2026

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

DEBARATI BHUNIA v. SUMAN SANKAR

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

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Answer

A parent facing prosecution under the POCSO Act cannot be considered entitled to custody of the child while the prosecution is pending.

No. As long as a parent is facing prosecution under the Protection of Children from Sexual Offences Act, 2012, he cannot be considered a person entitled to custody of the child; once a chargesheet has been filed, granting custody to the accused parent would be unwarranted and unjustified, since the primary consideration in a custody dispute is the best interest of the children. (¶54, 56)

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)

Headnote

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In the Court's own words

Paragraph 54Once the police has filed a chargesheet after investigation in respect of allegations constituting an offence under the POCSO Act against the respondent-father, granting custody of the child to the respondent-father would be totally unwarranted and unjustified. Needless to say, the primary consideration while deciding the issue of custody has to be the best interest of the children.

Paragraph 56These principles, read together, make it clear that the son’s disclosure and his safety cannot be subordinated to the father’s claim for custody particulars when the criminal case is still pending. Under no circumstances, the respondent-father, as long as he is facing prosecution, can be considered to be a person entitled to custody of the children. Such a course of action, apart from being contrary to the solemn object of the Juvenile Justice Act, may also lead to the prosecution being frustrated, inasmuch as, were the custody of the son to be handed to the respondent-father, the possibility of the son giving a free and fair deposition in those proceedings would virtually be negligible.

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

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