The Supreme Court has permitted a mother to take her two minor children to the United Kingdom and admit them to a school there, while holding that the father, who is facing prosecution arising from a POCSO case, cannot be granted custody while the criminal proceedings remain pending.
A Bench of Justice Vikram Nath and Justice Sandeep Mehta passed the order on September 23, 2026, in two connected civil appeals concerning the custody and relocation of the children. The Court also criticised the Delhi High Court for making observations on the merits of the POCSO allegations while the criminal proceedings were still pending.
Background
The parties married in September 2011 and have two children - a son born in April 2013 and a daughter born in January 2019. The mother, an academic with a Ph.D. in Engineering, had been caring for both children after leaving the matrimonial home in 2018.
Over the following years, she changed employment and locations, including working at IIT Jodhpur, VIT University, Vijayawada and later in Bengaluru. She subsequently secured employment as a lecturer at the University of Hull in the United Kingdom and sought permission to relocate the children there.
The Family Court, however, declared the father the sole custodian of the children in July 2024. The Delhi High Court upheld that decision in January 2026 and rejected the mother’s request to relocate the children to the UK.
The Supreme Court later interacted with the children and stayed the operation of the lower courts’ custody orders. During visitation sessions arranged by the Supreme Court, counsellors recorded that both children showed considerable reluctance to interact with their father, with the daughter also displaying fear and emotional distress.
The Court noted that the son had made a disclosure concerning sexual abuse during his examination at NIMHANS, following which a POCSO FIR was registered against the father. A chargesheet was subsequently filed after investigation. The father’s challenge to the criminal proceedings was pending before the Calcutta High Court.
The Supreme Court held that the Delhi High Court should not have commented upon the truthfulness of the allegations while the criminal proceedings were pending.
"The FIR itself being subjected to challenge before the High Court of Calcutta, the High Court of Delhi ought to have refrained from making comments on the veracity thereof. Such findings would cause grave prejudice to the prosecution initiated on the basis of the statement made by the child victim, and hence, the observations made by the High Court of Delhi in the impugned judgment in this regard deserve to be, and are hereby expunged and shall not be taken into consideration in the course of proceedings emanating from the said FIR."
The Court further emphasised that the child’s safety and welfare could not be subordinated to the father’s custody claim while the criminal case remained pending.
"Once the police has filed a chargesheet after investigation in respect of allegations constituting an offence under the POCSO Act against the respondent-father, granting custody of the child to the respondent-father would be totally unwarranted and unjustified. Needless to say, the primary consideration while deciding the issue of custody has to be the best interest of the children."
The Supreme Court also disagreed with the lower courts’ characterisation of the mother’s repeated employment changes as a “nomadic life”.
It observed that after leaving the matrimonial home, the mother had attempted to establish herself professionally while providing for the children. The Court found that her efforts to secure employment and financial stability could not, in the circumstances of the case, be treated as a reason to deny her custody.
The Court also rejected the argument that relocation to the UK would necessarily cause the children to lose their Bengali cultural identity.
The Supreme Court made its earlier stay on the judgments of the Family Court and Delhi High Court absolute until disposal of the appeals.
It permitted the mother, for the present, to take both children to the United Kingdom and admit them to a good school. She was directed to place details of their schooling before the Court through an affidavit within six weeks and undertake to produce the children before the Court whenever directed.
The Court also directed that the father’s pending quashing petition before the Calcutta High Court must be decided independently and without being influenced by observations made by either the Delhi High Court or the Supreme Court in the present custody proceedings.
The appeals were directed to be listed in January 2027.
