THE BEYOND OBITER LAW BLOG: Legal News
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The Supreme Court has held that the child-protective principles underlying the Protection of Children from Sexual Offences (POCSO) Act, 2012 should guide judicial decision-making in custody, visitation and parental access disputes involving child victims of sexual abuse. The Court emphasised that legal proceedings must not become a source of further trauma for children and cautioned against repeated psychological evaluations, questioning and legal interactions that may adversely affect their emotional well-being.
The ruling was delivered by a Bench of Justice Sanjay Karol and Justice N. Kotiswar Singh while considering issues arising in a custody dispute involving a child who was also an alleged victim of sexual abuse. One of the questions before the Court concerned the propriety of subjecting the child to further psychological evaluation during the pendency of the proceedings.
Referring to Sections 24, 33(5), 36 and 39 of the POCSO Act, the Court observed that the statute is founded on the principles of minimum exposure and minimum re-traumatisation of child victims. While these provisions operate in the context of criminal proceedings, the Bench held that the child-centric safeguards embodied in them provide valuable guidance for courts dealing with custody and visitation disputes involving children.
The Court observed, “The principle underlying Section 33(5) of the POCSO Act, though arising in the context of criminal trial, reflects a broader recognition that repeated engagement of a child victim in legal processes may itself become a source of trauma.”
Highlighting the broader objectives of the POCSO Act, the Court noted that the legislation seeks not only to punish offenders but also to protect the dignity, emotional well-being and mental health of child victims through child-friendly procedures. The Bench stressed that these principles should inform judicial approaches even outside criminal trials when the welfare of a child victim is at stake.
Drawing a distinction between therapeutic support and evaluative exercises, the Court observed that counselling and psychological assistance may aid a child's recovery, whereas repeated forensic assessments and litigation-driven evaluations may aggravate trauma. It cautioned that excessive scrutiny undertaken to support competing parental claims risks reducing the child to an object of continuous examination rather than treating them as an individual entitled to protection and care.
The Bench further remarked, “The justice delivery system must guard against any process which has the effect of prioritizing adversarial claims of litigating parties over the emotional safety and psychological integrity of the child.”
The Court also clarified that the doctrine of the “best interest of the child” extends beyond determining custody and visitation rights. According to the Bench, the principle applies equally to the procedures adopted by courts throughout the litigation process. Judicial engagement with children must therefore remain sensitive, minimally intrusive and consistent with their psychological and emotional well-being.
Holding that child welfare must remain the paramount consideration at every stage of the proceedings, the Court ruled that custody, visitation and parental access disputes involving child sexual abuse victims should be guided by the principles of minimum intrusion, minimum exposure and protection from re-traumatisation reflected in the POCSO framework.