The Supreme Court has held that courts must prioritize the welfare, dignity, emotional security and psychological well-being of children over competing parental claims in custody and visitation disputes, particularly where allegations of sexual abuse are involved.
The Bench comprising Justice Nongmeikapam Kotiswar Singh set aside orders of the Bombay High Court that had directed the constitution of a four-member panel of psychologists and experts to evaluate a minor child in a custody-related dispute involving allegations of sexual abuse by the father. The Court observed that repeated psychological assessments could expose a child victim to re-traumatization and secondary victimization.
The case arose from a matrimonial dispute between a couple married in 2015 who later moved to the United States. Their daughter was born in New Jersey in 2016. According to the mother, while residing in the United States, she was subjected to domestic violence and the child was sexually abused by her father when she was around two years old. Following an alleged incident of domestic assault in December 2019, the mother returned to India with the child.
Subsequently, disputes arose regarding custody and access rights. The father sought custody and visitation rights through various legal proceedings. Meanwhile, criminal proceedings were initiated against him under the Protection of Children from Sexual Offences (POCSO) Act and the Indian Penal Code based on complaints filed by the mother.
The Family Court in Pune rejected the father’s request for appointment of an independent psychiatric expert to evaluate the child, observing that serious allegations under the POCSO Act were pending and that the child was already undergoing therapy with a qualified psychologist. The Family Court expressed concern that exposing the child to further evaluation could adversely affect her well-being.
The Bombay High Court later directed appointment of an independent expert specializing in child psychology. Subsequently, upon an application by the father, the High Court modified its earlier order and substituted the term “expert” with “panel of experts.” Thereafter, a four-member panel comprising psychologists and professionals, including experts suggested by the father and one based outside India, was constituted to evaluate the child.
The mother challenged these orders before the Supreme Court, contending that repeated psychological evaluation by multiple experts would subject the child to unnecessary distress and could undermine her emotional recovery.
The Supreme Court observed that the controversy extended beyond an ordinary custody dispute and involved a fundamental question concerning the permissible limits of court-directed psychological evaluation of a child victim where custody proceedings intersect with allegations of sexual abuse.
The Court emphasized that the POCSO Act is not merely a penal statute but embodies a broader philosophy of child-friendly and trauma-sensitive justice. Referring to Sections 24, 33(5), 36 and 39 of the Act, the Court noted that the legislative intent is to shield children from repeated exposure to stressful legal processes and to minimize emotional harm during judicial proceedings.
According to the Court, the principle underlying these provisions is that child victims should not be subjected to repeated interactions or procedures that may aggravate their trauma. Even though the present proceedings arose from custody litigation rather than a criminal trial, the same principles of psychological safety and minimum intrusion remained relevant.
The Supreme Court highlighted the distinction between therapeutic engagement aimed at helping a child heal and adversarial evaluations undertaken to support litigation strategies. While therapeutic intervention may aid recovery, repeated evaluations in contested proceedings risk turning a child into an object of continuous forensic scrutiny.
The Court warned that judicial procedures themselves must conform to standards of sensitivity, minimum intrusion and psychological safety. It observed that a process that appears clinically benign may nevertheless become emotionally stressful when conducted in the backdrop of ongoing litigation involving allegations of abuse by a parent.
The judgment further stressed that courts exercising parens patriae jurisdiction have an independent obligation to protect the welfare and dignity of the child irrespective of the positions adopted by either parent.
The Supreme Court found a fundamental flaw in the High Court’s approach. It held that while the High Court focused on whether the parents’ rights would be prejudiced, it failed to adequately consider the impact of repeated interactions with multiple experts on the child herself.
The Court noted that the High Court had not explained:
- Why evaluation by a single independent expert was insufficient;
- Why interaction with multiple professionals was necessary;
- How the process complied with the principle of minimum intrusion; and
- Whether the risk of re-traumatization had been adequately assessed.
The Bench also expressed concern that the panel was substantially based on names suggested by the father and that one expert was located in the United States, potentially making the process more burdensome and complicated for the child.
At the same time, the Supreme Court clarified that courts are not barred from seeking expert psychological assistance merely because allegations under the POCSO Act are pending. However, any such process must satisfy the requirements of demonstrable necessity, institutional neutrality, proportionality and minimum intrusion.
The Court observed that when expert assistance is required, preference should ordinarily be given to a neutral court-appointed expert rather than a panel that could create the perception of an adversarial exercise.
Modifying the High Court’s orders, the Supreme Court directed that:
- The Family Court shall appoint a psychologist to assess the present mental and psychological condition of both parents.
- The court-appointed psychologist shall interact with the child’s existing treating psychologist to understand the child’s current psychological status.
- A report shall be submitted to the Family Court.
- Only after considering this report shall the Family Court decide whether any further psychological assessment of the child is necessary.
The Court emphasized that the child’s welfare must remain the paramount consideration throughout the process.
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