The Hon’ble Supreme Court of India on September 23, 2026, delivered a significant judgment in the case of D versus S (Identities withheld to protect the two minor children). The case was an appeal against the judgement of the Delhi High Court which affirming the Family Court’s Order had awarded the custody of both children to the father while treating the mother’s employment-driven relocations as being part of a “nomadic” lifestyle. The Supreme Court had to determine whether a parent facing prosecution under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) can be given custody of his children or the mother could relocate them abroad, keeping in mind the best interests of the children as a paramount consideration.
The parties were married in 2011, following which their son was born in April 2013 and their daughter in January 2019. The mother left the matrimonial home in 2018 while she was four months pregnant and she moved between different institutions in pursuit of employment in India, before eventually securing employment as a Lecturer at the University of Hull in the UK. In 2023, the son, during an examination at NIMHANS in 2023 after displaying aggressive behaviour, disclosed incidents indicating sexual abuse by his father. A police complaint was subsequently lodged, resulting in registration of a POCSO FIR against the father. A chargesheet has since been filed, while the father’s challenge to the FIR remains pending before the Calcutta High Court. The Family Court and thereafter the Delhi High Court, viewed the mother’s frequent relocation as indicative of a “nomadic lifestyle” and thus awarded custody of both the children to the father, aggrieved by this the mother approached the Supreme Court.
However, a Bench of Justice Vikram Nath and Justice Sandeep Mehta found the approach of the High Court to be flawed. The Court observed that where a parent was facing prosecution under the POCSO Act, they cannot be entitled to the custody of the children and that granting custody to the father after the chargesheet has been filed would be totally unwarranted and unjustified the. The Court thus relied on Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015 to hold that the son’s disclosure and safety cannot be subordinated to the father’s claim for custody and that handing over custody could impair the child’s ability to give a free and fair deposition.
In its final order, the Supreme Court has set aside the judgment of the High Court and permitted the mother to relocate the children to the UK and get them admitted to a good school with their details be placed on record with an affidavit within six weeks and also clarified that the father’s quashing petition pending before the Calcutta High Court would be decided independently on its own merits.