The court emphasized the potential misuse of the Protection of Children from Sexual Offences Act in custody disputes, ruling that allegations lacked prima facie evidence of sexual intent.

ORDER :

Sole accused in S.C.No.998/2020 on the files of the Additional Sessions Court (PoCSO), Thiruvananthapuram, seeks quashment of the said case arising out of Crime No.960/2018 of Vanchiyoor Police Station, Thiruvananthapuram, where the accused is alleged to have committed offences punishable under Section 7 r/w Section 8, Section 9(l)(m)(n) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the PoCSO Act' hereinafter).

2. Heard the learned counsel for the petitioner and the learned counsel appearing for the 2nd respondent/de facto complainant. Also heard the learned Public Prosecutor, in detail.

3. In this matter, the allegations against the accused is that, at about 12.15 hrs. on 12.5.2018, when the accused was given temporary custody of the minor boy aged 7 years, as per the interim order of the Family Court, Thiruvananthapuram, the accused touched on the penis of the minor victim with sexual intent and made comments about the size of the penis and thereby, he committed the above offences.

4. While seeking quashment, the learned counsel for the petitioner argued that the entire allegations in Annexure A FIR and Annexure C Final Report in this crime are false and the said allegations are falsely raised by the 2nd respondent/de facto complainant, who got divorce from the petitioner, in order to defeat him in O.P.No.35/2015 filed by him to get custody of the minor. It is pointed out that, in fact, the allegation of sexual assault was alleged while the victim was given interim custody on the date of the alleged occurrence also, by the Family Court. According to the learned counsel for the petitioner, Section 7 of the PoCSO Act defines sexual assault and the offences under the PoCSO Act are inter-related to Section 7. Therefore, merely touching the penis of the child would not make out an offence if the same is not with sexual intent. Accordingly, the learned counsel for the petitioner submitted that the petitioner got custody of his minor son because of his affection towards him and he had no sexual intent. Therefore, the allegations are false. Apart from the same, the learned counsel pointed out grounds (ii) to (iv) in the Crl.M.C. also to justify quashment as prayed for. Grounds (ii) to (iv) in the Crl.M.C. are as under:

ii. The 2nd respondent has selected the most unpleasant way to win the case in favor of her and thereby made her minor son a scapegoat. The 2nd respondent fearing that the family court may grant custody of the minor son to the petitioner has foisted the present crime, in order to defeat the ends of justice. The 2nd respondent in order to pressurize the petitioner and settle her end has foisted the present case. The provisions of Protection of Children from Sexual Offences Act, 2012 is misused in the present case. In one instance, this Honorable Court has expressed its dissatisfaction in the manner in which the act is being misutlilized to settle personal scores or vendetta and how the life of persons is being played with at ease. This Honorable Court in Baby v. State of Kerala and another 2013 (4) KLT 15 observed,

"This case reflects the potential danger to all. No one seems to be safe. It seems that anybody can be implicated easily".

iii. The 2nd respondent in order to cover up her mistakes and to wreak vengeance upon the petitioner has falsely implicated the petitioner in the case. The allegation put forward by the 2nd respondent is that on 12/05/2015, when she produced the child before the Family Court at 11:00 am in compliance with the interim order of the Family Court, the accused, who is the father of the child at about 12.15 pm, touched the body of minor son including his private part. It has come out in the complaint of the 2nd respondent and statement of the child that the alleged victim was sitting near 2nd respondent and there were other persons sitting near to them in Court. If the said incident had happened as alleged, the 2nd respondent or other parties present