In a bitter custody battle marked by parental alienation and a POCSO chargesheet, the Supreme Court has permitted the mother to relocate both minor children to the United Kingdom, holding that the paramount consideration of the child’s safety and best interest overrides the father’s claim. The Court said that a parent against whom a chargesheet has been filed under the POCSO Act following a spontaneous disclosure by the child cannot be granted custody of that child, as such custody would frustrate the prosecution and expose the child to potential harm.
The paramount consideration in custody matters is the best interest and safety of the child, as embodied in Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which includes the principles of participation, best interest, safety, and non-waiver of rights, asserted the Apex Court, while emphasising that observations made by a custody court on the merits or veracity of a pending criminal case, particularly one involving allegations of sexual abuse against a parent, are improper, premature, and capable of causing grave prejudice to the prosecution, and must be expunged.
The Apex Court also clarified that the Tender Years Doctrine cannot be applied as a determinative principle in custody matters, and the wishes and emotional comfort of the children, as recorded during in-chamber interactions and counsellor-supervised visitation, must be given due weight. Further, a mother’s frequent change of employment to secure financial stability for her children, even if it involves relocation, cannot be branded as a ‘nomadic lifestyle’ so as to disentitle her to custody, particularly when such moves are compelled by the other parent’s vindictive conduct such as persistent RTI applications.
A Two-Judge comprising Justice Sandeep Mehta and Justice Vikram Nath observed that the mother’s frequent job changes between 2019 and 2021, from IIT Jodhpur to VIT University, Vijayawada, and then to Bengaluru, were not indicative of a ‘nomadic lifestyle’ but were compelled by the father’s persistent RTI applications and complaints to her employer, which the Court characterised as exposing his vindictive nature. The Court noted that the pension being drawn by the paternal grandparents could not be treated as supplementing the father’s financial obligations, since meeting the children’s educational needs is the primary duty of the parents themselves.
The Court further observed that the High Court of Delhi’s comments in paragraph 53 of the impugned judgment, casting doubt on the veracity of the POCSO FIR by calling the allegations ‘clearly motivated’ and a ‘counterblast’, were absolutely unjustified, uncalled for, and premature, since the FIR had been registered pursuant to a spontaneous disclosure made by the child to the psychiatrist at NIMHANS.
The Court also rejected the father’s contention that relocation to the UK would cause the children to lose their Bengali cultural ethos, holding that no such presumption can be drawn merely from relocation to another country. The Court placed significant reliance on the counsellor reports, which recorded that both children demonstrated strong reluctance to interact with the father, that the daughter displayed fear and emotional distress, and that the children expressed a preference to remain with the mother.
Briefly, the appellant-mother, Dr. Debarati Bhunia Chakraborty, a computer science academician with a Ph.D. from Jadavpur University, and the respondent-father, Suman Sankar Bhunia, were married on 26th September 2011. Their son, Master SSB, was born on 29th April 2013, and their daughter, Ms. DW, was born on 24th January 2019. The marriage broke down in 2018 when the mother was four months pregnant, following which she left the matrimonial home and retrieved custody of the son on 9th September 2018. The father then filed Guardianship Petition before the Family Court, Patiala House Courts, New Delhi, seeking custody. By judgment dated 1st July 2024, the Family Court declared the father as the sole custodian of both children, with visitation rights to the mother.
The High Court of Delhi affirmed this and also rejected the mother’s application seeking relocation of the children to the United Kingdom, where she had secured employment as a Lecturer at the University of Hull drawing approximately Rs. 3 Lakhs per month. The father, by contrast, was drawing only Rs. 17,000 per month as a part-time Lecturer in West Bengal. During the son’s treatment at NIMHANS, Bengaluru, for aggressive behaviour in October 2023, he made disclosures of sexual abuse by the father, leading to registration of POCSO FIR dated 5th November 2023 at P.S. Rajarajeshwari Nagar, Bengaluru, and the filing of a chargesheet against the father.
The father’s quashing petition is pending before the High Court of Calcutta. The Supreme Court, on 23rd February 2026, stayed the impugned judgment after interacting with the children in Chambers, where the son expressed extreme reluctance to be in the father’s company. Pursuant to the visitation order dated 19th May 2026, counsellor reports confirmed the children’s persistent aversion to the father.
