Supreme Court: In a case concerning the custody and relocation of minor children, a Division Bench of Vikram Nath and Sandeep Mehta*, JJ., held that the appellant-mother’s frequent changes of employment and residence could not be characterised as a “nomadic life” and that the paramount consideration in determining custody was the best interest and welfare of the children. The Court took note of the disclosure made by the minor son before the psychiatrist at NIMHANS, the consequent registration of the POCSO FIR and the charge-sheet filed after investigation and held that granting custody to the respondent-father, who was facing POCSO prosecution, would be unwarranted. The Court further held that the observations made by the High Court on the veracity of the POCSO allegations were premature and uncalled for and accordingly expunged the same. Considering the mother’s financial standing, employment in the United Kingdom, the pending criminal proceedings and the children’s continued reluctance to be in the father’s company, the Court permitted the appellant-mother, for the present, to relocate the children to the United Kingdom and get them admitted to a good school, subject to the directions issued by the Court.
Background
The present appeals arise from a custody dispute between the appellant-mother and respondent-father concerning their 2 minor children, SSB, aged about 13 years, and DW, aged about 7 years. The parties were married on 26 September 2011. Their relations deteriorated in 2018, following which the appellant-mother left the matrimonial home and obtained custody of SSB. The daughter DW was born on 24 January 2019 and thereafter both children remained in the mother’s custody. The mother, an Academician holding a PhD in Engineering, subsequently changed her employment and place of residence several times, which, according to her, was necessitated by the need to secure employment and provide a suitable environment for the children.
The appellant-mother later secured employment at the University of Hull, United Kingdom, and sought permission to relocate the children. The Family Court rejected the request and, by judgment dated 1 July 2024, declared the respondent-father to be the sole custodian of the children, with visitation/interim custody rights to the mother. The Delhi High Court, by judgment dated 23 January 2026, affirmed the said judgment and rejected the mother’s prayer for relocation, principally taking into consideration her frequent changes of employment and residence.
During the pendency of the proceedings, the son was taken to NIMHANS, Bengaluru, where he made disclosures indicating sexual abuse by the father, resulting in registration of an FIR under the POCSO Act. The proceedings arising therefrom remained pending.
In the present appeals, this Court interacted with the parties and the children and, having regard to the son’s emphatic reluctance and apparent fear of being in the father’s company, stayed the judgments of the courts below. Subsequently, visitation was granted to the father. The counsellor’s reports revealed that the son continued to show extreme reluctance to be in the father’s company, while the daughter had hardly interacted with him except during the temporary visitation period.
Analysis
The Court held that the courts below had erred in treating the appellant-mother’s frequent changes of employment and residence as a “nomadic life”. The Court observed that, having left the matrimonial home while carrying a pregnancy, the mother was justified in pursuing better employment to secure financial security and a good future for herself and the children. Her financial standing, achieved through her own efforts, was found to be substantially better than that of the respondent-father, who had continued to pursue litigation rather than improve his financial prospects.
The Court further placed significant reliance on the disclosure made by the son before the psychiatrist at NIMHANS, the consequent registration of the POCSO FIR and the charge-sheet filed after investigation. It held that the observations made by the High Court on the veracity of the allegations were premature and uncalled for and accordingly expunged the same. In view of the pending prosecution, granting custody of the children to the respondent-father was held to be unwarranted, particularly as the primary consideration in custody matters is the best interest and welfare of the children. The Court further observed that even if the criminal proceedings were subsequently quashed, the circumstances in which the child made the disclosure and his apprehensions could not be rendered wholly irrelevant for determining his welfare and custody.
Considering the mother’s employment in the United Kingdom, the father’s financial circumstances, the pending POCSO prosecution and the continuing parental alienation of the children, the Court held that denying relocation to the United Kingdom would further aggravate the situation.
Decision
The Court directed that:
-
The stay on the effect and operation of the impugned judgment, granted vide order dated 23 February 2026, be absolute and it would continue till disposal of the appeals.
-
The appellant-mother was permitted, for the present, to take the children to the United Kingdom and get them admitted to a good school.
-
The appellant-mother was to place on record, by way of an affidavit within 6 weeks, the details of the children’s schooling in the United Kingdom.
-
The appellant-mother was to furnish an undertaking that she would produce the children before this Court or any other Court, as and when directed.
-
The quashing petition pending before the Calcutta High Court be decided independently and on its own merits, without being influenced by the observations made in the impugned judgment of the Delhi High Court or in the present order.
-
The appeals were to be listed for hearing in January 2027.
[X v. Y, 2026 SCC OnLine SC 1979 , decided on 23-9-2026]
*Judgment authored by: Justice Sandeep Mehta
