Often False POCSO Case Launched Against Spouse To Avoid Handing Over Minor Child's Custody: Kerala High Court

Post By 24law
February 12, 2025

Pranav B Prem

In a significant ruling, the Kerala High Court quashed a POCSO case filed by a mother against her former husband, observing that there are instances where one spouse falsely implicates the other in a sexual offense using their minor child to gain an advantage in custody disputes. The Court, while delivering the judgment, made a crucial observation: "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."

Case Background

The case arose when the mother of a minor child lodged an FIR alleging that her former husband, who had secured temporary custody of the child under a Family Court order, had touched the child's private parts with sexual intent and made inappropriate remarks about the size of the child’s genitalia. The child also gave a statement to the police claiming that his father touched his organ used for urination. Based on the complaint, the father was booked under Section 7 read with Section 8 (Sexual Assault), Section 9(l)(m)(n) (Aggravated Sexual Assault), and Section 10 of the Protection of Children from Sexual Offences Act (POCSO Act). The accused approached the High Court seeking to quash the case, contending that the allegations were fabricated with the intent of defeating his custody case.

Mother's Contentions

The mother defended the allegations by arguing that the minor child himself had made the accusations and she had not manipulated him in any manner to implicate the accused. She also claimed that the child was conceived through intrauterine insemination (IUI) using donor sperm due to the petitioner’s infertility. According to her, the accused had been abusive toward both her and the child. She further submitted that before their divorce, they had agreed to give her sole custody of the child and that the father would provide a monthly maintenance of Rs. 1,000 for the child.

Court’s Observations

Justice A. Badharudeen, while delivering the verdict, pointed out that the complaint was lodged five days after the alleged incident and observed: "It is true that stringent provisions are incorporated in the PoCSO Act to punish the culprits who are involved in sexual assault, molestation and sexual harassment against children below 18 years. 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."

The Court found it implausible that the petitioner would have committed sexual assault on the minor child during his limited custody hours within the Family Court premises, stating that such an allegation was "not digestible to prudence." Further, the Court noted discrepancies in the statements made by the minor child, highlighting that his description of events varied between the police and the Magistrate’s statement. The Court remarked: "In fact, what emerges is that the allegations are an afterthought at the instance of the 2nd respondent to defeat the case of the petitioner, prima facie."

Legal Precedents Considered

The Court referenced previous rulings, including Baby v. State of Kerala (2013 (4) KLT 15), where it was observed that false implication in such cases is not uncommon: "This case reflects the potential danger to all. No one seems to be safe. It seems that anybody can be implicated easily." Additionally, the Court cited Vesa Holdings (P) Ltd. v. State of Kerala (2015 (1) KLD 823), emphasizing that criminal proceedings should not be encouraged when found to be mala fide.

The judgment also referred to Parminder Kaur v. State of U.P (AIR 2010 SC 840), which held: "When a criminal proceeding is manifestly attended with mala-fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused with a view to spite him due to private and personal grudge, the same may be quashed in exercise of its powers under section 482 of Cr.P.C."

Quashing the Case

Based on the inconsistencies in the allegations, delay in filing the complaint, and the evident custody battle, the Court ruled in favor of the petitioner and quashed the charges against him. "In such view of the matter, it is difficult to hold prima facie that the prosecution case is believable in the context of the facts discussed. Therefore, I am of the view that the matter would require quashment." With this ruling, the Kerala High Court has once again highlighted the dangers of misusing stringent laws like POCSO for personal vendettas, particularly in custody battles, where minor children become pawns in legal disputes between parents.