Flagging the rising menace of false sexual-assault complaints involving children in matrimonial cases filed by estranged couples under the POCSO Act, the Supreme Court on Thursday said there will be no immediate arrest of an accused if the offence is alleged to have been committed by a parent or a family member living under the same roof.
In a landmark verdict, a bench of Justices J B Pardiwala and K V Viswanathan directed that a psychological or psychiatric evaluation of the child by experts is a must, before police or courts form their opinion to arrest the parent or family member staying under the same roof against whom allegations have been made.
The court said it would be the duty of the police officer receiving the complaint to verify, at the time of receipt of the complaint, that a matrimonial dispute exists between the parents. Pointing out that the top court has on multiple occasions reiterated that arrest is not mandatory, even for cognisable offences, and that such power to arrest should be exercised only after scrupulously complying with the relevant conditions under the law, the bench said “irreparable harm” is caused to an accused parent or a family member living under the same roof if the person is arrested by the investigating authorities.
The top court restored the child’s custody to the father, taking into account the aspect of the minor’s welfare.
Laying down crucial safeguards, the bench said there shall not be any immediate arrest if threshold conditions like (i) an offence under the Protection of Children from Sexual Offences (POCSO) Act is alleged to have been committed by a parent or any other family member living under the same roof as the child victim and (ii) a matrimonial dispute of some form, irrespective of whether it is before a court of law or not, exists between the parents of the child, thereby indicating the possibility of a strained relationship. It said the special court shall also involve the services of an expert in child and adolescent psychiatry or clinical psychology, and such an expert shall conduct a psychiatric or psychological evaluation of the child victim and submit a report to the court, detailing the results of such evaluation.
