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Synopsis

The Kerala High Court, highlighting the misuse of the Prevention of Children from Sexual Offences (POCSO) Act in custody disputes, quashed a case against a father accused of sexually abusing his minor child.

A Single judge bench comprising Justice A. Badharudeen, observed: “The intent behind the legislation is to protect the interest of the children from sexual exploitation. But in practical application, apart from registering so many genuine cases, misuse of the provisions of this Act to settle score is not unusual. In cases when the husband and wife are in loggerheads and one among them sues for custody of a minor child, there are instances whereby the other spouse who is not ready to part with the custody of the minor used to fabricate facts to implicate the other spouse in PoCSO offences by using the child whose custody is sought for. The intention behind implicating the spouse who demands custody of the child is to avoid the claim for custody.”

The court was hearing a case filed by a mother against her ex-husband, alleging that during a temporary custody visit on May 12, 2018, the father had touched the child's private part with sexual intent and commented on its growth. A First Information Report (FIR) was lodged on May 18, 2018. The child, in a statement to the police, reiterated the allegations, stating that his father had touched him inappropriately. A statement recorded under Section 164 CrPC before the Magistrate also contained similar allegations, though there were inconsistencies in the terminology used by the child to describe the alleged act. The father was charged under Section 7 r/w Section 8 (Sexual Assault) and Section 9(l)(m)(n) and Section 10 (Aggravated Sexual Assault) of the POCSO Act.

Denying the allegations, the father approached the High Court seeking to quash the case, arguing that the allegations were false and strategically made to defeat his petition filed by him for custody of the minor child. The petitioner also alleged that his ex-wife harboured animosity towards him and had manipulated the child into making false accusations. It was further asserted that the mother had conceived the child through intrauterine insemination (IUI) using donor sperm, as medical records confirmed his infertility.

The court noted discrepancies in the child's statements and found the delay in lodging the complaint significant. It further remarked that in custody disputes, it is not uncommon for one parent to falsely implicate the other in POCSO cases to gain leverage.

The court found that the allegations emerged as an afterthought at the instance of the mother to defeat the case of the petitioner. “The sexual assault alleged is at the court premises while the petitioner was holding interim custody as per the order of the Family Court, for limited hours. In fact, the allegation levelled against the petitioner to the effect that he had committed sexual assault on the minor victim when he got custody for limited hours on 12.5.2018 seems to be not digestible to prudence,” it stated.

In conclusion, the court ruled in favour of the petitioner father, stating that “it is difficult to hold prima facie that the prosecution case is believable in the context of the facts discussed.”

As a result, all further proceedings against the petitioner were quashed.

 

Cause Title: XXXX v State of Kerala & Another [Crl.MC 1861 of 2023]

Appearance:  For the Petitioner/ Accused- Advocates Nithya R., Shajin S. Hamed; For the Respondents- Advocates Jibu T. S. (PP), Shaijan C. George, Vinai John