Whether a minor child, who was also an alleged victim in pending POCSO proceedings against her father, could be subjected to evaluation by a multi-member expert panel in ongoing visitation litigation? The Apex Court did not nod in affirmation.
The Supreme Court has asserted that where custody, visitation or parental access proceedings intersect with allegations of child sexual abuse, any court-directed psychological evaluation of the child must be tested against the paramount standard of welfare, dignity, emotional security and psychological well-being. Such evaluation cannot be routine, and repeated or multi-layered assessments by multiple experts must ordinarily be avoided. The Court explained that if evaluation is considered necessary, the ordinary rule is appointment of one independent, court-appointed child psychologist or similarly qualified professional. A panel of experts is to be an exception, not the norm, and can be justified only by compelling, case-specific reasons.
The Apex Court therefore modified the impugned High Court orders and directed the Family Court to first appoint a psychologist to assess the present mental and psychological condition of both parents, particularly the mother with whom the child was residing. That psychologist was then to interact with the child’s existing treating psychologist and report on the child’s current psychological condition through that channel. Only after considering that report would the Family Court decide whether any direct psychological assessment of the child was necessary at all.
The Court also directed the Family Court to periodically review the child’s changing needs, seek inputs from the treating psychologist where necessary, and consider concerns such as parental alienation or false memory creation without unnecessarily subjecting the child to fresh interaction. The parties were further directed to place the status of the POCSO proceedings before the Family Court, since that would directly bear on any future order concerning access or custody.
A Two-Judge Bench comprising Justice Nongmeikapam Kotiswar Singh and Justice Sanjay Karol observed that the case could not be treated as an ordinary access dispute. It said the controversy lay at the intersection of parental claims and the court’s obligation to protect a child from processes that may aggravate trauma. Where a child is already an alleged victim under the POCSO Act, the judicial process itself must remain child-sensitive, trauma-informed and minimally intrusive.
The Bench drew heavily from the child-protective philosophy underlying Sections 24, 33(5), 36 and 39 of the POCSO Act. It emphasized that repeated engagement of a child victim in legal or quasi-legal processes can itself become a source of harm. Even in custody proceedings, courts must remain alert to the risks of secondary victimisation and re-traumatisation. The Bench reaffirmed that in all disputes concerning minors, welfare remains paramount, and that welfare includes emotional security, dignity, psychological stability and mental health. It sharply distinguished therapeutic engagement from adversarial evaluation. A process designed to support a child’s recovery stands on a different footing from one that turns the child into an object of forensic scrutiny in a parental battle.
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On the facts, the Bench found the High Court’s approach fundamentally flawed. The shift from “an independent expert” to a “panel of experts” was not a harmless procedural adjustment. It materially altered the degree of psychological exposure to which the child could be subjected. The Bench said that the High Court had not explained why one independent expert was insufficient, why multiple experts were necessary, how the process complied with minimum intrusion, or what safeguards would protect the child from repetitive exposure.
The Bench was also troubled by the composition of the panel. Since the panel was substantially drawn from names suggested by the father, against whom POCSO allegations were pending, the process risked losing both actual and perceived neutrality. The inclusion of experts located outside the local jurisdiction, including one in the USA, only added to the burden, especially without any reasoned consideration of the impact of a hybrid or dispersed evaluation structure on the child.
At the same time, the Bench refused to adopt an absolute rule that expert psychological assistance is impermissible whenever POCSO allegations are pending. It clarified that courts may seek such assistance in appropriate cases, but only where the process is demonstrably necessary, proportionate, neutral, and structured around the child’s psychological safety. The Court also underscored that before directing any further assessment of the child, the Family Court should evaluate the psychological condition of both parents.
Briefly, the appeal arose from two Bombay High Court orders dated 27 April 2023 and 7 December 2023, by which the High Court first replaced its earlier direction for appointment of a single independent expert with a “panel of experts”, and then constituted a four-member panel, including experts suggested by the father and one based in the USA. The parties were married in 2015, later moved to the United States, and their daughter was born in 2016. The mother alleged that the father had physically abused her and sexually abused the child during their stay abroad, after which she returned to India with the child in December 2019.
The disputes then spilled into multiple custody, visitation, divorce, domestic violence and criminal proceedings, including FIRs under the IPC and the POCSO Act. The father sought appointment of an independent psychiatric expert specializing in child psychology to evaluate the child, her current living situation and both parents with a view to re-establishing his connection with the child. The Family Court rejected that plea in April 2022, noting the serious POCSO allegations, the child’s ongoing therapy, and the risk of harm from further evaluative exposure. The High Court partly interfered, and the matter ultimately reached the Supreme Court after the High Court expanded the process into a panel-based evaluation exercise.
