POCSO Act as a weapon in the child custody: Battlefield Damaging the Father-Daughter Relationship
By Shreya Marwaha, a final year B.A., LL.B. student at Army Institute of Law, Mohali
The POCSO Act is surely a step forward in the protection of children which is the responsibility of society as a whole. But there is an urgent need of improving certain aspects with regard to the implementation of the Act. There are growing instances implicating a parent in false POCSO inquiries especially in child custody cases whenever the fight becomes intense between both parties. Earlier in the Indian judicial history, the misuse of 498A was prominent in manipulating matrimonial disputes and now misuse of the POCSO Act is escalating. Courts need to be extra careful while examining such sensitive cases. In such battles, everyone including the lawyers forgets that a man/accused is a father in the first place and this perception of the society tampers the sanctity of the father - daughter relationships. These actions not only obliterate the child’s youth but also has mental health repercussions. Since, POCSO Act has a reverse burden of proof, the accused always falls prey to false cases implicated to prove himself innocent. This gender-neutral law cannot be surely said to be true to its nature. Moreover, when such false cases are implicated a party it is difficult to bear the expensive litigation to save himself or his child. Should the father give up his child or his hard-earned money/reputation just because of some concocted story of sexual abuse by the opposite party, especially by the mother of the child?
Child Custody Battlefield and POCSO Act Misuse
The growing erroneous cases against the biological father to prevent him from getting child custody are a full proof example of POCSO Act misuse in child custody battles. The Kerala High Court in the case of Suhara v Muhammad Jalee made an observation while granting the custody of a five-year-old girl to the father and highlighted that the family court has the duty to take due care and examine the evidence adequately immediately before initiating the proceedings under the said act.
The court further observed,
Unless a very cautious approach is adopted by the Family Court to ensure that information on which crime was registered is not frivolous and vexatious, many innocent parents fighting for custody of his own ward would-be victim of false implication of crimes under the POCSO Act.
As in the case of Alamohan Das v State of West Bengal, the court clearly speculated in the context of scope of committal proceedings that a judge can only shift and weigh the materials on record by seeing whether there is sufficient evidence for the commitment of the crime. The court is open to weigh the total effect of the evidence and documents produced to check whether there is a basic infirmity and to find out whether a prima facie case has been made out against the accused.
In Dr Jaseer Aboobacker vs State of Kerala, the mother wanted to restrict the visitation rights of the father and had filed a POCSO case against him. The court said that the child has been made a “weapon of choice” by one parent against the other.
“There cannot be any doubt that their unusual fight and the levelling of very grave allegations of sexual abuse against the father would have a huge emotional toll on the psyche of the minor child. It is appalling to note that the parents, in their determination to fight with each other, have intentionally or otherwise failed to protect their child from the damaging emotional consequences that would be caused to him,” the court added. In both cases the allegations were dismissed.
Considering all the possibilities, it is axiomatic to note whether evidence and charges made at a later stage in a child custody case under POCSO Act is a “ sufficient ground for proceedings”?
FIR registration under POCSO Act to manipulate the situation and distract the Indian Justice system
FIR under POCSO act is registered under Section 377 and other charges of the Indian Penal code r/w sections of the POCSO act in most of the cases. There have been a lot of instances wherein the mother registers a false complaint by accusing the father of sexual abuse of the child to distract the Indian judicial system in a child custody battle.
Registering FIR is the first step to proceeding with the trial of such frivolous charges against the father of the child. All cases falling under the POCSO act are considered non-bailable and cognizable. A police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offense under Section 154 of the Code of Criminal Procedure, 1973.
But a preliminary inquiry is important to ascertain whether all acquisitions lead to cognizable offenses or not and to save the precious time of our judiciary. A reliance can be placed on upon two-Judge Bench decisions of this Court in P. Sirajuddin vs. State of Madras, Sevi vs. State of Tamil Nadu, Shashikant vs. Central Bureau of Investigation , and Rajinder Singh Katoch vs. Chandigarh Admn. to substantiate the same.
Since the child custody case comes in the category of matrimonial disputes/family dispute, the police in charge are bound to conduct a preliminary inquiry before registration of FIR. In most cases, Police would already have bias against the father and register the FIR. The core of the justice system is at fault when it comes to such cases, Indian judiciary is well aware how the local police can successfully tamper the material evidence important to the case and show a different picture to the court. In many instances, the court of law has ordered an action against such functionaries as their corrupt ideas and inefficiencies lead to the suffering of the falsely accused father and the child involved.
In a few cases, if a police officer decides to conduct a preliminary inquiry and finds that complaint does not merit registration of FIR, then the same shall be recorded and a copy of the closure report shall be given to the first informant in seven days.
Generally, the investigation can be also compromised by the deceitful mother by raising haywire or by using channels such as National Women Commission or even PMO Office, who will then follow their protocol developed for helping victimized women and directing the Police to register the FIR instead of asking for their report or even establishing a process to apprise their office with the status of the Police Investigation. This is the first step where Police, even if not finding grounds for registering an FIR against the father, would be influenced to register the FIR.
Further, in registering the FIR police requires a medical examination of the Child. In most child Custody cases, the allegations of the sexual abuse are dated. A child becomes the victim at this stage as the doctor needs to conduct an inquiry where the child goes through the trauma of physical checks of the sensitive areas. Is it really important to put the child to such a trauma or rather first investigate both mother and father if the child is being used as a weapon by a parent especially if the allegations are arising out of a custody dispute? The main culprits behind the abuse are not police authorities but the National Commission of Women and the PMO Office who, without conducting proper enquiry, influence the police to register the FIR.
Further, the medical examination also does not lead to any clarity as the doctor does not make an enquiry if the child is tutored instead based on the exam never provides a yes or no confirmation in his/her report. Instead, a common and repetitive scenario can be observed in which the results of the medical examination of the child are shown vaguely to the court of law which is an explicit negligence leading to implicating the father. Eventually, this would lead to a futile trial in which the father is obligated to lose either his life or career or family reputation.
Missing Germane Aspects of POCSO FIR Investigation
The process of the Police investigation based on the current guidelines include investigation by the investigating officer, counseling of the child by the CWC and Statement of the child under CrPC 164 in front of the magistrate. In all of this the role of Investigating Officer (IO) is very relevant and material.
IO is considered as a material witness as he investigates the matter, records the statement of the witnesses, goes to the spot for the objective findings, prepares the case diary, receives the papers during investigation and after collecting the relevant material in support of the prosecution or against the prosecution he submits his report for or against the prosecution.
Under his investigation, the judge is able to know the veracity of the evidence in a case. If he does the assignment in a careless manner, he cannot be regarded to have performed his duties effectively since the investigation, which is the foundation of criminal justice, would suffer as a result, putting the cause of justice at risk. If he is careless, he will have a negative effect on society. If he is unreliable, the Court will be unable to make a fair verdict in the matter.
In POCSO related matters, the IO generally forms a biased opinion against the father. In most of the cases his investigation report can even lead to the arrest of a falsely accused father. Even the police enquiry of the child is done in the presence of the mother which eventually leads to influenced results.
Counselling of child by CWC officer and possibility of tutored answers
It is notable that in the recent 2021 case of Jai Hind @ Babu v State of UP and Another, the court questioned and ordered action against the functioning of the police and CWC which should be in compliance with the guidelines laid down in the case of Junaid v State of UP.Unfortunately, not only the guidelines are not being adhered by the local police and CWC, but there has also been an inclination towards working hand in glove with the mother. The CWC’s report is the most important aspect of the trial and can even lead to the grounds of arrest of the father in the child custody case. The loophole remains where there has not been a different format for POCSO cases involved in child custody battles. The question can be posted on the competency of the staff responsible for conducting such inquiries.
The root cause is Lack of training of the staff involved in a case starting from psychologist to CWC which creates inefficiencies. The lacunas in compliance with the legal mandate leads to failure of justice. Moreover, the CWC counseling is again done in the presence of the mother, therefore, this is another step where the findings can be influenced by the mother.
Statement under Section 164 CrPC in front of the Magistrate
Another predominant element revolves around statements of the child u/s 164 CrPC. whereby a child gives statements before the magistrate in the presence of the mother of the child. When a child witness comes into the picture for deposition, the onus lies upon the judge to decide the competency of the child witness through Voir Dire test and figuring out if the answers to the questions are already tutored by vengeful parties in the child custody battlefield. Mother has a strong impact on a child’s psychology which leads to the tutored answers in the court proceedings as well. It is highly likely that the magistrate may simply take the statement of the child without applying his mind as the case is not yet at the stage of the trial and yet again another material evidence gets created against the accused father lacking any veracity.
Consequences of Nebulous Allegations under POCSO Act in the child custody case
What would be the consequences of trial of Nebulous allegations, if allowed?
The answer involves the traumatic impact on the child’s mental health when she/he will be exposed to the volley of questions related to the concerned subject matter of sex and sex organs. If not looked at in prima facie evidence properly by the court, such an ordeal would inflict devastating impairment on the child’s personality.
Furthermore, a child is also exposed to petrifying medical & psychological examinations which could pose a short term and a long-term mental health impact. It is a soul shakening experience for a falsely implicated biological father to even think of such a situation which his daughter undergoes.
Of course, if the established evidence is forming a chain of events leading not to any concocted situation by one party the courts and parties will have to bear with the inevitable course of action to be resorted to. But when the trial is going to be farce, such course of action will be an impediment to the resolving of the case and also accounts to impeding consequences befalling an innocent child.
Responsibility of the Courts and Judges in the Indian Judiciary system
Fake POCSO cases continue to haunt the accused endlessly even if they are acquitted by the courts. The cases for custody battles are nowadays shocking the conscience of the courts when a judge observes that a mother just for the sake of custody of a child could go to the extent of making such serious allegations against her own child’s father.
Then what can be the possible ways to be followed by the courts to save the father from such allegations whereby the father can lose the custody of a child in the spur of the moment?
In the case of N. Chandramohan vs The State. The court expressed its disappointment regarding misuse of POCSO Act in child custody cases whereby the Court quashed the existing FIR and ordered to alter the FIR to proceed against the complainant-wife under Section 22 (punishment for false complaint or false information) of the POCSO Act, so, she suffers the consequences for having given a false complaint against her husband at the cost of her own daughter.
The Court declared,
This case should be a lesson for all those who attempt to misuse the provisions of this Act, just to satisfy their own selfish ends.
By taking the above mentioned precedent into consideration, the courts are highly obligated to set an example for those misusing POCSO Act in their battles. Even if the POCSO case trial is concluded because of the session judge’s ignorance, the higher courts must look into the outcomes of the trial implicated on the accused. Only one false case involving someone’s own child has drastic repercussions, and the hard-earned reputation of the falsely accused person goes in vain.
By penalising, the malicious prosecution which would be of monstrous proportions can be given an end with lessons for the future. Judges at the subordinate levels should be skilled to keep a check on the investigation process as the core of the case is tampered with by negligent investigation. It is a bitter truth and irony that a man/father is held an accused in most of the POCSO child custody cases and the legislation is considered gender neutral.
It is rightly said by Martin Luthar King Jr,
Injustice anywhere is a threat to justice everywhere.
Then why is the Indian judiciary at the subordinate level giving a pedestal for a frivolous complaint trial to start?
We need to rethink about the child who is stuck in the custodian battle of parents and his welfare which is always taken as of paramount consideration by our judiciary. Also, the father-daughter relationship is tarnished due to such frivolous allegations as the society can never think of a mother accusing her child’s own father in such a false POCSO case. The onus is always on the father to first save his child and then himself. The lacunas in the primary and secondary investigation at the lower-level results in wasting the precious time of the judiciary, money/time/maligning the reputation of father and hampering the best interest of the child. A child should receive love and care of both parents. Such a principal can only be achieved if a neutral child psychologist is immediately assigned by the judiciary or the police as soon as the allegations are leveled to protect the child's interest before it becomes too late. Police should not be allowed to put the child through traumatic medical analysis of the sensitive areas unless a magistrate requires such a step after interviewing both parents and obtaining the opinion of the child psychologist. Child’s mental health cannot be compromised in the fight of vengeful party in child custody matters.
(Disclaimer- The views expressed in this article are those of the author and do not necessarily reflect the views or policies of the Child Rights Centre.)