Hon'ble Mr. Justice Uday Umesh Lalit
SLP(C)No.9267 of 2018
Perry Kansagra vs. Smriti Madan Kansagra
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1694 OF 2019
(@ SPECIAL LEAVE PETITION (CIVIL) NO.9267 OF 2018)
PERRY KANSAGRA ……Appellant
VERSUS
SMRITI MADAN KANSAGRA ..…. Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. This appeal challenges the final Judgment and Order dated 11.12.2017
passed by the High Court of Delhi allowing Review Petition No.221 of 2017
preferred by the respondent against the judgment and order dated 17.02.2017
passed by the High Court of Delhi in MAT App. (F.C.) No.67 of 2016.
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Perry Kansagra vs. Smriti Madan Kansagra
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3. The appellant (Kenyan and British Citizen) and Respondent (Indian
Citizen) got married on 29.07.2007 at New Delhi. After marriage, the
Respondent shifted to Nairobi, Kenya and settled into her matrimonial home
with the appellant. A son, named Aditya Vikram Kansagra was born to the
couple on 02.12.2019 at New Delhi. After delivery, the respondent returned
back to Nairobi along with Aditya. Thereafter, the Respondent and Aditya
travelled from Kenya to India on few occasions. Aditya holds Kenyan as well
as British passport.
4. The appellant, Respondent and Aditya came from Nairobi to New Delhi
on 10.03.2012. According to the appellant, the return tickets for travel back
to Nairobi were booked for 06.06.2012. While in India, in May 2012, the
Respondent filed a civil suit registered as CS (OS) No.1604 of 2012 before
the High Court of Delhi praying inter alia for an injunction to restrain the
appellant from removing Aditya from the custody of the Respondent. Upon
notice being issued, the appellant contested the suit in which visitation orders
were passed by the High Court from time to time. The appellant thereafter
filed Guardianship Petition praying inter alia that he be declared the legal
Guardian of Aditya and be given his permanent custody. The Guardianship
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Petition dated 06.11.2012 was registered as No.G-53 of 2012 before the
Family Court, Saket, New Delhi.
5. In terms of visitation orders passed by the High Court, the appellant
along with paternal grandparents were permitted to meet Aditya for 2 hours
on Friday, Saturday and Sunday in the 2nd week of every month. According to
the appellant he flew from Nairobi to New Delhi every month to meet Aditya
along with the paternal grandparents. In view of the pendency of the
guardianship petition, CS (OS) No.1604 of 2012 was disposed of by the High
Court on 31.08.2015, leaving the parties to place their grievances before the
Family Court. The arrangement of visitation was thereafter modified by the
Family Court by its orders dated 09.02.2016 and 09.03.2016.
6. On 18.04.2016, an application was filed by the appellant praying that the
Family Court may direct the Court Counsellor to bring Aditya to the Court for
an in-chamber meeting, which prayer was objected to by the Respondent.
After hearing both sides, the Family Court allowed said application vide
Order dated 04.05.2016, and directed that Aditya be produced before the
Court 07.05.2016. The relevant part of the Order was as under:-
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“…..The court is parens patriae in such proceedings.
Petitioner’s visitation with the child is anyway
scheduled for 07.05.2016. Let the child be produced
before the court at 10 am on 07.05.2016 before he goes
for meeting with his father and grand parents.”
7. The Respondent being aggrieved, filed MAT App. (FC) No.67 of 2016
before the High Court. On 06.05.2016, after hearing both sides, Division
Bench of the High Court referred the parties to mediation and also directed
that Aditya be produced before the Court on 11.05.2016. Paragraphs 7 and 9
of said Order were :-
“7. During our interaction with the parties, a desire is
expressed by the parties to make one more attempt for
a negotiated settlement of all disputes between the
parties by recourse to mediation. The parents of the
respondent are also present and have joined the
proceedings before us. They have also submitted that
they would like to make an attempt for a negotiated
settlement for all disputes between the parties.
… … … … …
9. With the consent of parties, it is directed as
follows:
(i) The parties shall appear before Ms. Sadhana
Ramchandran, learned Mediator in SAMADHANDelhi High Court Mediation and Conciliation Centre
on 9th May, 2016 at 2:30 pm.
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(ii) It shall be open for the learned Mediator to join
any other person or relative of the parties, as may be
deemed necessary, for a holistic and effective
mediation.
(iii)In case, the respondent or any of his relative are
not available in India, it shall be open for the learned
Mediator to join them by any electronic mode of
communication including Skype, Video Conferencing,
etc. at the cost of the respondent.
(iv) It shall also be open for the learned Mediator to
meet the child at any place, as may be deemed
convenient to her, and to arrange any visitation or
meetings with the respondent of the child with the
consent of the parties.”
8. Thereafter, the matter came up on 11.05.2016. The High Court
interacted with Aditya and following observations were made in paras 2 to 6
of its Order :-
“2. We are also informed that the child has today met
with Ms. Sadhana Ramachandran, learned Mediator as
well as Ms. Swati Shah, Counsellor in SAMADHAN –
Delhi High court Mediation and Conciliation Centre
and that the mediation efforts are still underway.
3. The son of the parties – Master Aditya Vikram
Kansagra has been produced before us today. We have
also had a long conversation with him and are deeply
impressed with the maturity of this intelligent 6½ year
old child who displays self confidence and a
remarkable capacity of expressing himself with clarity.
He exhibits no sign of confusion or nervousness at all.
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4. We also note that the child was comfortable in his
interaction with his father and grandparents in court.
The child has expressed happiness at his visitations
with his father and grandparents. He unreservedly
stated that he looks forward to the same. Master
Aditya Vikram Kansagra is also able to identify other
relatives in Kenya and enthusiastically refers to his
experiences in that country. It is apparent that the
child has bonded well with them.
5. We must note that the child is at the same time
deeply attached to his mother and Nani. His bearing
and personality clearly bear the stamp of the fine
upbringing being given to him by the appellant and her
mother.
6. As of now, since 9th February, 2016, the child is
meeting his father and grandparents between 10:30 am
and 05:00 pm on Saturday and Sunday in the second
week of every month and for two hours on Friday in
the second week of every month. The visitation is
supervised as the court has appointed a Counsellor who
has been directed to remain present throughout the
visitation.”
9. During the ensuing mediation sessions, the Mediator and the Counsellor
interacted with Aditya. The Counsellor interacted with Aditya on 08.07.2016
and 11.07.2016. Based upon her interactions with him, the Counsellor
submitted a report dated 21.07.2016 in a sealed cover. Though, mediation
was attempted on many occasions, the parties were unable to resolve their
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disputes and differences and an interim report was submitted by the Mediator
on 22.07.2016. On 11.08.2016, the sealed cover containing the report of the
Counsellor was opened and the report was taken on record. Copies of the
report of the Counsellor were given to the parties. In an application moved
the next day, i.e. on 12.08.2016, the appellant relied upon the report of the
Counsellor dated 21.07.2016 and prayed for permission to speak to Aditya on
telephone. While opposing the prayer, the respondent objected to such
reliance on the ground of confidentiality. The Mediator thereafter filed final
report in November, 2016 reporting failure.
10. Thereafter the matter came up for final arguments before another
Division Bench of the High Court. The Respondent raised the issue of
admissibility of the reports submitted by the Mediator and Counsellor
contending that the reports could not be relied upon in view of principle of
confidentiality. The High Court dealt with said submissions and while
disposing of the appeal, by its judgment dated 17.02.2017 observed as under:-
“10. The mediation has failed.
11. But we are called upon to decide an important
question concerning confidentiality of the mediation
process for the reason on October 11, 2016 a report
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was received from the Mediator which was taken on
record and copy given to both parties. The report of
the Mediator refers to a child counsellor being involved
who had also given an independent report which was
also taken on record.
… … … … … … …
“13. The report of the child counsellor is to the effect
that the child was normal and in spite of being happy
with his mother he seems to idolize his father and
affectionately remembers his house in Kenya; about
which house he loved talking with the counsellor. The
affection and the bond of the child with the father was
commended as the positive attitude of the appellant
who, obviously was not torturing the child. The child
showed his love, affection and comfort for the
appellant, evidenced by he fondly and happily talking
about a recent vacation in Kashmir with his mother.
The child was not uncomfortable with the idea of
making a trip to Kenya.
… … … … … … …
17. There can be no quarrel with the proposition that
mediation proceedings are confidential proceedings
and anything disclosed, discussed or proposed by the
parties before the mediator cannot be recorded, much
less divulged. The reason being that very often during
mediations, offers, counter offers and proposals are
made. The ethos of mediation would bar disclosure of
specified communications and writings associated with
mediation. Parties are encouraged during mediation to
engage in honest discussions as regards their problems
and in matrimonial disputes these honest discussions
many a time give rise to a better understanding
between the couple. Such an approach encourages a
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forget and forgive attitude to be formed by the parties.
If either spouse is under an apprehension that the wellmeant deliberations might subsequently be used
against them it would hamper an unreserved
consideration of their problems. The atmosphere of
mutual trust during mediation warrants complete
confidentiality.
18. But where the scope of mediation is the solution of
a child parenting issue, report by a mediator or a child
counsellor concerning the behavior and attitude of the
child would not fall within the bar of confidentiality for
the reason no information shared by the couple is being
brought on record. The mandate of Section 12 of the
Family Courts Act, 1984 cannot be lost sight of.
19. In the instant case, what has been taken on record
during mediation proceedings is the report of the Child
Counsellor and the mediator, which we find are reports
commending the good attitude of both parents who,
unlike many other couples, are not using the child as a
tool to take revenge against the other. As noted above,
the interaction by the previous Division Bench with the
child has been recorded in the order dated May 11,
2016 i.e. the child being equally comfortable with both
parents and having a desire to spend quality time with
not only his mother and relatives from the maternal
side but even with the father and relatives from the
paternal side. Such reports are a neutral evaluation of
expert opinion to a Court to guide the Court as to what
orders need to be passed in the best interest of the
child. These reports are not confidential
communications of the parties.
20. Having answered the issue which incidentally
arose, and noting that otherwise the appeal has been
rendered infructuous, we terminate further proceedings
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in the appeal inasmuch as no orders are now warranted
to be passed in the appeal.
21. The learned Judge Family Court would consider
granting over night interim custody to the respondent
when he is in India by imposing such terms and
conditions which would ensure that the child is not
removed from the territory of India. The issue
concerning the appellant claiming that she has lost the
Kenyan passport of the child and a fresh passport being
issued in the name of the child would also be looked
into by the learned Judge, Family Court.”
11. On 18.03.2017, the respondent filed Review Petition No.221 of 2017
questioning the judgment dated 17.02.2017. The Review Petition was
allowed by yet another Division Bench of High Court by judgment and order
dated 11.12.2017. After posing the question, “..whether the Counsellor’s
report furnished in the course of mediation proceedings or the Mediator’s
report in case of mediation, when the process fails, can be used by either of
the parties during trial”, the High Court concluded that the reports of the
Mediator and the Counsellor “..shall be disregarded by the family court, when
it proceeds to decide the merits of the case”. During the course of its
discussion, the High Court noted Delhi High Court Mediation and
Conciliation Rules, 2004; Format of application of SAMADHAN (the Delhi
High Court Mediation and Conciliation Centre); Conciliation rules of
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UNCITRAL; Sections 75 and 81 of the Arbitration and Conciliation Act,
1996; Mediation Training Manual issued by the Mediation and Conciliation
Project Committee, Supreme Court of India and Chartered Institute of
Arbitrator’s Rules mandating confidentiality in matters pertaining to
mediation and observed as under:-
“21. There can, be no quarrel with the proposition that
the mediation proceedings are confidential and
anything disclosed, discussed or proposed before the
mediator need not be recorded, much less divulged and
that if it is done there would always be an apprehension
that the discussion may be used against the parties and
it would hamper the entire process. The atmosphere of
mutual trust warrants complete confidentiality and the
same is in fact noted in the main judgment. The
petitioner is aggrieved by its later part which notes
“but where the scope of the mediation is resolution of
child parenting issue, the report concerning the
behavior and attitude of the child would not fall within
the bar of confidentiality”. To our mind, this is against
the principle of mediation and charts the course of a
slippery slope, as this judgment would hereafter
discuss.
22. No exceptions are made in the mediation rules
either in our laws or in various jurisdictions mentioned
above to the absolute rule of confidentiality. This
Court held the mandate of Section 12 of the Family
Courts Act, 1984 cannot be lost sight of; yet the issue
is whether the order dated May 6, 2016 was passed
purely under Section 12 of the Family Courts Act,
1984 or it was simply to facilitate mediation of
disputes between the parents of the child.
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… … … … … … … …
25. Section 12 of the 1984 Act, empowers the Family
Court with the discretion to refer the parties to a
counsellor, Undoubtedly, that power also extends to the
appellate court. However, this case has three rather
unusual features: one that the Court never authorized
the mediator to exercise power that is vested statutorily
with it. The discretion to involve or not to involve a
counsellor is the Court’s and is non delegable. The
respondent husband’s argument that the referral order
permitted the mediator to involve “others” cannot be
meant to authorize the exercise of discretion that is
solely vested with the Court. Second, the issue of
confidentiality is to be examined because the mediator
furnished two reports-to the Court, in this case. A
mediator’s position is unique; undoubtedly she (or he)
has professional training and competence to handle
issues that involve intense and bitter struggle over
matrimonial issues, properties, shared household,
custody, (temporary or permanent) and in commercial
matters, issues that have monetary and financial
impacts. In all cases, parties express their fears, their
expectations and their dearly held positions on the
strength of the confidence that they repose in the
mediator and the mediation process- both of which are
reinforced by the absolute cloak of confidentiality.
Given these imperatives, mediator’s reports, where the
process has led to failure, should not record anything
at all. Having regard to this position the fact that a
mediator in a given case, proposes-for all the best and
bona fide reasons, the involvement of a counsellor,
does not in any manner undermine or take away the
Court’s sole power to exercise it. In the eventuality of
the parties’ agreeing, to such a course, they have to be
asked to approach the Court, for appropriate orders: the
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Court would then refer them to the counsellor. The
question of the kind of report to be submitted to the
Court and whether it would be a part of the record
would be known during the course of the proceeding.
In the present case, the parties merely consented.
There is nothing to show that the parties were aware
that the mediator’s report, with regard to not merely
what transpired, but with respect to her reflections,
would be given to the court; nor was there anything to
show that they were aware - when they consented to
the involvement of a counsellor that her report would
be given to the court. The third unusual feature is that
in at least two sittings with the counsellor, the mediator
was present. This “joint” proceeding is, in the opinion
of the Court, unacceptable. It can lead to undesirable
consequences, especially if the mediator and counsellor
proceed to furnish their reports (as they did in this
case). A reading of both reports in the present case,
paints a definite picture to the reader strongly
suggestive of a plausible course of action or
conclusion. It is this, the power of suggestion, which
parties are guaranteed protection from, when they
agree to mediation. Imagine if there were to be a
possibility of divergence of opinion. Where would that
lead? Aside from adding to contentiousness, the Court
too would be left confounded.
… … … … … … … …
29. The observations made in the main judgment
dated February 17, 2017 in effect would permit the
mediators to exercise de facto, or in default, the
exclusive powers of the Court under Section 12 of the
1984 Act, which are non delegable. There is no
question of validation of such action, by a later order of
the Court. The danger of this would be that Courts can
well draw upon such irregularly produced material, to
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arrive at conclusions. The requirement of Section 12
also has to be understood as the mandate of law that
only the Court and no other body can refer the parties
to counseling. The proposition that something which
the law mandates to be performed in one manner and
no other manner “where a power is given to do a
certain thing in a certain way, the thing must be done
in that way or not at all”1
applies with full force. The
order dated May 06, 2016 in this case merely referred
the parties to the mediator and carved out the course
and ambit of mediation. The report of the counsellor
was never sought by the Court, and yet was treated to
be one under Section 12 of the Act of 1984. Had the
Court invoked Section 12 of the Family Courts Act,
1984 it would have clearly spelt out and recorded that
while doing so; and in that sense there ought to have
been a clear invocation of Section 12. The absence of
such reference necessarily meant that the reference to
“others’ meant only those connected with the dispute,
such as family members of either the husband or the
wife, whose participation was to facilitate amicable
dispute resolution, not independent evaluation by a
counsellor in an unguided manner to be incorporated
or annexed to a mediation report.
30. If such a position is allowed as in this case,
mediation may then well be used as a forum for
gathering expert opinion which would then enter the
main file of the case. The mandate of Section 89 of the
Civil Procedure Code, 1908, read with Rule 20 and
Rule 21 of the Delhi High Court Mediation and
Conciliation Rules, 2004 provides for confidentiality
and non-disclosure of information shared with the
mediator and during the proceedings of mediation. In
the present case, the help of the counsellor sought by
1Nazir Ahmed v King Emperor AIR 1936 PC 243 followed by State of UP v. Singhara
Singh AIR 1964 SC 358
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the mediator to get holistic settlement between the
parties was not ordered in the manner visualized by
Section 12 of the Family Courts Act, 1984.
Consequently, neither the report of the mediator nor of
the counsellor could have been allowed to be exhibited.
They are contrary to the mandate of principles
governing the mediation – they undermine party
autonomy and choice; besides, they clearly violate
Section 75 of the Arbitration and Conciliation Act. The
observations in the judgment dated February 17, 2017
to the extent it notes that “the reports of the mediator
as also of the counsellor concerning the behavior and
attitude of the child, especially when the mediation
process has failed would not fall within the bar of
confidentiality and hence cannot be used in any
proceeding…… Such reports are a neutral evaluation
of expert opinion to a Court to guide the Court as to
what orders need to be passed in the best interest of the
child. These reports are not confidential
communications of the parties” and carving a general
exception to mediation confidentiality in child custody
matters and disputes for which the Family Court can
seek the assistance of the counsellor, under Section 12
of the 1984 Act, are hereby recalled. We hasten to add
that this judgment is not a reflection on the mediator
whose unstinted track record is known to all, or the
endeavor of the counsellor, who too is very
experienced in her field. Their commitment and
sincerity to secure a settlement satisfactory to all, and
the mediation process in general, is not doubted; this
judgment should in no way dampen that zeal and
determination that they have displayed.”
12. The view taken by the High Court in allowing the review is presently
under challenge. Mr. Anunya Mehta, learned Advocate for the appellant
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submitted - (a) the High Court exceeded the scope of review jurisdiction as if
it was sitting in appeal over the earlier judgment; that in terms of law laid
down by this court an error which is not self-evident and which is required to
be detected by a process of reasoning cannot be termed as error apparent on
the face of the record; b) the report of the Counsellor was not hit by
confidentiality as it merely recorded the interaction of the Counsellor with the
child and did not record any information or submission by parties to the lis;
that there is a recognized exception to the rule of confidentiality in child
custody matters as the court, in such matters exercises parens patriae
jurisdiction.
Mr. Saurabh Kirpal, learned Advocate for the respondent responded -
(i) mediation reports are part of confidential proceedings and cannot be
permitted to be used in court proceedings for which reliance was placed on
various statutory provisions; (ii) the Counsellor was not appointed under
Section 6 of the Family Courts Act; (iii) exception under Rule 8 (viii) to (xiv)
of the Family Court Rules cannot be read as exception to Rules 20 and 23 of
the Mediation Rules; (iv) the mediation reports given by the Counsellor-inmediation did not fall within the exceptions provided in rule 8; (v) there was
no waiver of confidentiality and the respondent had objected to the use of the
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reports at the first instance; (vi) the earlier order being based on a
misconception of law, the High Court was right in exercising review
jurisdiction.
13. The issues that arise for our consideration can broadly be put under two
heads:
a) Whether the High Court was justified in exercising review
jurisdiction and setting aside the earlier judgment and
b) Whether the High Court was correct in holding that the reports of
the Mediator and the Counsellor in this case were part of confidential
proceedings and no party could be permitted to use the same in any
court proceedings or could place any reliance on such reports.
14. As regards the first issue, relying on the decisions of this Court in
Inderchand Jain (dead) through Lrs. vs. Motilal (dead) through Lrs.2
, Ajit
Kumar Rath vs. State of Orissa and others3
and Parsion Devi and others vs.
Sumitri Devi and others4
, it was submitted by the appellant that the exercise
of review jurisdiction was not warranted at all. In Inderchand Jain2
it was
observed in paras 10, 11 and 33 are as under:-
2
(2009) 14 SCC 663
3
(1999) 9 SCC 596
4
(1997) 8 SCC 715
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“10. It is beyond any doubt or dispute that the review
court does not sit in appeal over its own order. A
rehearing of the matter is impermissible in law. It
constitutes an exception to the general rule that once a
judgment is signed or pronounced, it should not be
altered. It is also trite that exercise of inherent
jurisdiction is not invoked for reviewing any order.
11. Review is not appeal in disguise. In Lily Thomas
v. Union of India5
this Court held: (SCC p. 251, para
56)
“56. It follows, therefore, that the power of review can
be exercised for correction of a mistake but not to
substitute a view. Such powers can be exercised within
the limits of the statute dealing with the exercise of
power. The review cannot be treated like an appeal in
disguise.”
… … … … … … … … … …
33. The High Court had rightly noticed the review
jurisdiction of the court, which is as under:
“The law on the subject—exercise of power of review,
as propounded by the Apex Court and various other
High Courts may be summarised as hereunder:
(i) Review proceedings are not by way of appeal
and have to be strictly confined to the scope and
ambit of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when
some mistake or error apparent on the fact of record
is found. But error on the face of record must be such
an error which must strike one on mere looking at the
5
(2000) 6 SCC 224
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record and would not require any long-drawn process
of reasoning on the points where there may
conceivably be two opinions.
(iii) Power of review may not be exercised on the
ground that the decision was erroneous on merits.
(iv) Power of review can also be exercised for
any sufficient reason which is wide enough to
include a misconception of fact or law by a court or
even an advocate.
(v) An application for review may be necessitated
by way of invoking the doctrine actus curiae
neminem gravabit.”
In our opinion, the principles of law enumerated by it, in
the facts of this case, have wrongly been applied.”
In Ajit Kumar Rath3
, it was observed:-
“29. In review proceedings, the Tribunal deviated
from the principles laid down above which, we must
say, is wholly unjustified and exhibits a tendency to
rewrite a judgment by which the controversy had been
finally decided. This, we are constrained to say, is not
the scope of review under Section 22(3)(f) of the
Administrative Tribunals Act, 1985…………”
Similarly, in Parsion Devi4
the principles were summarized as under:
“9. Under Order 47 Rule 1 CPC a judgment may be
open to review inter alia if there is a mistake or an error
apparent on the face of the record. An error which is
not self-evident and has to be detected by a process of
reasoning, can hardly be said to be an error apparent on
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the face of the record justifying the court to exercise its
power of review under Order 47 Rule 1 CPC. In
exercise of the jurisdiction under Order 47 Rule 1 CPC
it is not permissible for an erroneous decision to be
“reheard and corrected”. A review petition, it must be
remembered has a limited purpose and cannot be
allowed to be “an appeal in disguise”.
15. On the other hand, reliance was placed by the respondent on the decision
in Board of Control for Cricket in India and another vs. Netaji Cricket Club
and others6
to submit that exercise in review would be justified if there be
misconception of fact or law. Para 90 of said decision was to the following
effect:
“90. Thus, a mistake on the part of the court which
would include a mistake in the nature of the
undertaking may also call for a review of the order. An
application for review would also be maintainable if
there exists sufficient reason therefor. What would
constitute sufficient reason would depend on the facts
and circumstances of the case. The words “sufficient
reason” in Order 47 Rule 1 of the Code are wide
enough to include a misconception of fact or law by a
court or even an advocate. An application for review
may be necessitated by way of invoking the doctrine
“actus curiae neminem gravabit”.”
6
(2005) 4 SCC 741
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16. We have gone through both the judgments of the High Court in the
instant case and considered rival submissions on the point. It is well settled
that an error which is required to be detected by a process of reasoning can
hardly be said to be an error apparent on the face of the record. To justify
exercise of review jurisdiction, the error must be self-evident. Tested on this
parameter, the exercise of jurisdiction in the present case was not correct.
The exercise undertaken in the present case, in our considered view, was as
if the High Court was sitting in appeal over the earlier decision dated
17.02.2017. Even assuming that there was no correct appreciation of facts
and law in the earlier judgment, the parties could be left to challenge the
decision in an appeal. But the review was not a proper remedy at all. In our
view, the High Court erred in entertaining the review petition and setting aside
the earlier view dated 17.02.2017. Having so concluded, the logical course in
the circumstances would be to set aside the judgment under appeal and permit
the respondent to challenge the judgment dated 17.02.2017. But such a
course would entail further litigation and therefore, we have considered the
matter from the stand point of second issue as well.
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17. At the outset, we must, therefore, consider various provisions on which
reliance was placed by either side.
18. The Family Courts Act, 1984 (hereinafter referred to as the Act) was
enacted to provide for the establishment of Family Courts with a view to
promote conciliation and secure speedy settlement of disputes relating to
marriage and family affairs and for matters connected therewith. Section 4
deals with “appointment of Judges” and sub-section (4) states that while
selecting persons for appointment as Judges – every endeavor shall be made
to ensure that persons committed to the need inter alia to promote the welfare
of children and to promote settlement of disputes by conciliation and
counselling, are selected. Under Section 6 Counsellors can be appointed by
the State Government in consultation with the High Court. Section 7 deals
with “jurisdiction” and under sub clause (g) of sub-section (1) the jurisdiction
extends in relation to guardianship issues, or the custody of, or access to, any
minor. Section 9 deals with “duty of Family Court to make efforts for
settlement” and empowers the Court, subject to any rules made by the High
Court, to follow such procedure as may be deemed fit. Section 10 deals with
“procedure generally” and states inter alia that Family Court can lay down its
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own procedure with a view to arrive at a settlement. Section 12 deals with
“assistance of medical and welfare experts” and Section 20 gives overriding
effect to the Act. Section 21 enables the High Court to frame rules which may
inter alia provide for “efforts which may be made by, and the procedure
which may be followed by, a Family Court for assisting and persuading
parties to arrive at a settlement”.
The relevant Sections being Sections 6, 9 and 12 of the Act are as
under:-
“6. Counsellors, officers and other employees of
Family Courts. – (1) The State Government shall in
consultation with the High Court, determine the
number and categories of counsellors, officers and
other employees required to assist a Family Court in
the discharge of its functions and provide the Family
Court with such counsellors, officers and other
employees as it may think fit.
(2) The terms and conditions of association of the
counsellors and the terms and conditions of service of
the officers and other employees, referred to in subsection (1), shall be such as may be specified by rules
made by the State Government.
9. Duty of Family Court to make efforts for
settlement – (1) In every suit or proceeding, endeavor
shall be made by the Family Court in the first instance,
where it is possible to do so consistent with the nature
and circumstances of the case, to assist and persuade
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the parties in arriving at a settlement in respect of the
subject-matter of the suit or proceeding and for this
purpose a Family Court may, subject to any rules made
by the High Court, follow such procedure as it may
deem fit.
(2). If, in any suit or proceeding, at any stage, it
appears to the Family Court that there is a reasonable
possibility of a settlement between the parties, the
Family Court may adjourn the proceedings for such
period as it think fit to enable attempts to be made to
effect such a settlement.
(3) The power conferred by sub-section (2) shall
be in addition to, and not in derogation of any other
power of the Family Court to adjourn the proceedings.
12. Assistance of medical and welfare experts.- In
every suit or proceedings, it shall be open to a Family
Court to secure the services of a medical expert or such
person (preferably a woman where available), whether
related to the parties or not, including a person
professionally engaged in promoting the welfare of the
family as the court may think fit, for the purposes of
assisting the Family Court in discharging the functions
imposed by this Act.”
19. Pursuant to the rule making power, the High Court of Delhi notified
the Family Courts (Procedure) Rules, 1992 (hereinafter referred to as the
Rules). Rule 5 deals with Institution of Proceedings while Rule 8 deals with
procedure to be followed to arrive at a settlement. Rule 8 is to the following
effect.
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“8. Procedure to be followed to arrive at a settlement
(i) In every suit or proceeding the Judge may, at any
stage, direct the parties to attend a counsellor with a
view to promote conciliation and to secure speedy
settlement of disputes.
(ii) The parties shall be bound to attend the counsellor
on the date and time fixed by the Judge.
(iii)The counsellor may require the parties or any one
of them to appear on a date and time fixed for further
counselling. In case any of the parties fails to appear,
the counsellor may report the matter to the Judge and
the Judge shall pass such orders including awarding of
costs, as the circumstances of the case may require.
The Judge may nevertheless require the counsellor to
submit a report.
(iv) The counsellor, in the discharge of his duties may:-
(a) Pay visits to the homes of both or any of the
parties.
(b) Interview, relatives, friends and
acquaintances of the parties or any of them.
(c) Seek such information from the employer of
any of the parties, as may be deemed necessary.
v) With the prior permission of the Judge the
counsellor may:-
a) refer the parties to an expert in other areas,
such as medicine or psychiatry.
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b) seek assistance of any of the institutions,
organizations or persons mentioned in Section 5
of the Act.
vi) The counsellor shall maintain a diary in respect of
every case giving in brief the steps taken.
vii) Information gathered by the counsellor, any
statement made before the counsellor or any notes or
report prepared by the counsellor will be treated as
confidential. The counsellor shall not be called upon to
disclose such information, statements, notes or report
to any court except with the consent of both the parties.
viii) The counsellor shall not be asked to give evidence
in any court in respect of such information statements
or notes.
Provided, however, that the counsellor will submit
to the Judge a report relating to the home environment
of the parties concerned, their personalities and their
relationship with their child and/or children in order to
assist the Judge in deciding the question of the custody
or guardianship of any child or children of the
marriage.
Provided further that the counsellor will also submit to
the Judge a report relating to the home environment,
income or standard of living of the party or parties
concerned in order to assist the Judge in determining
the amount of maintenance and/or alimony to be
granted to one of the parties.
ix) The Judge may also request the counsellor to
submit a report on any other matter, the Judge consider
necessary.
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x) A copy of any report may be supplied to the
parties, on such request being made by the parties.
xi) The parties will be entitled to make their
submissions on the report.
xii) The counsellor shall not be asked to give evidence
in any court in respect of any report made by him.
xiii) Save as aforesaid, the counsellor will submit a
brief memorandum to the Judge informing the Judge of
the outcome of the proceedings within the time
specified by the Judge.
xiv)When the parties arrive at a settlement before the
counsellor relating to the dispute or any part thereof,
such settlement shall be reduced to writing and shall be
signed by the parties and countersigned by the
counsellor. The Judge shall pronounce a decree or
order in terms thereof unless the Judge considers the
terms of the settlement unconscionable or unlawful.
xv) Cohabitation between the parties in the course of
conciliation proceedings will not be deemed to be
condonation of the matrimonial offence.
xvi)Even after passing of the decree or order the Judge
may require the counsellor to supervise the placement
of children in custody of a party and to pay surprise
visits to the home where the child resides. In case any
alternation is required in the arrangements the
counsellor will make a report to the Judge. The Judge
may after notice to the parties pass such orders as
Judge may deem fit.
xvii)The Judge may require the counsellor to
supervise, guide and/or assist reconciled couples, even
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after the disposal of the case for such further period as
the court may order.
xviii) On a request received from the counsellor
the Judge may issue process to any person to appear
before the counsellor at such place, date and time as
may be desired by the counsellor.”
20. Since reliance has been placed on various other statutory provisions to
bring home the issue regarding confidentiality in mediation process, some of
those provisions are also extracted herein:-
A] Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 are
to the following effect:-
“75. Confidentiality – Notwithstanding anything
contained in any other law for the time being in force,
the conciliator and the parties shall keep confidential
all matters relating to the conciliation proceedings.
Confidentiality shall extend also to the settlement
agreement, except where its disclosure is necessary for
purposes of implementation and enforcement.
81. Admissibility of evidence in other proceedings.
– The parties shall not rely on or introduce as evidence
in arbitral or judicial proceedings, whether or not such
proceedings relate to the dispute that is the subject of
the conciliation proceedings,-
(a) views expressed or suggestions made by the other
party in respect of a possible settlement of the dispute;
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(b) admissions made by the other party in the course
of the conciliation proceedings;
(c) proposals made by the conciliator;
(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the
conciliator.”
B] Rule 20 of the Delhi High Court Mediation and Conciliation Centre
(SAMADHAN) is to the following effect:-
“Rule 20: Confidentiality, disclosure and
inadmissibility of information.
(a) When a Mediator /Conciliator receives factual
information concerning the dispute(s) from any
party, he shall disclose the substance of that
information to the other party, so that the other party
may have an opportunity to present such
explanation as it may consider appropriate.
Provided that, when a party gives information to the
Mediator/Conciliator subject to a specific condition
that it be kept confidential, the Mediator/Conciliator
shall not disclose that information to the other party.
(b)Receipt or perusal, or preparation of records, reports
or other documents by the Mediator/Conciliator,
while serving in that capacity shall be confidential
and the Mediator/Conciliator shall not be compelled
to divulge information regarding those documents
nor as to what transpired during the
Mediator/Conciliator before any Court or tribunal
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or any other authority or any person or group of
persons.
(c) Parties shall maintain confidentiality in respect of
events that transpired during the Mediation/
Conciliation and shall not rely on or introduce the
said information in other proceedings as to:
(i) views expressed by a party in the course of
the mediation/conciliation proceedings;
(ii) documents obtained during the
mediation/conciliation which were expressly
required to be treated as confidential or other
notes, drafts or information given by the
parties or the Mediator/Conciliator;
(iii) proposals made or views expressed by the
Mediator/Conciliator.
(iv) admission made by a party in the course of
mediation/conciliation proceedings;
(v) The fact that a party had or had not indicated
willingness to accept a proposal.
d) There shall be no audio or video recording of the
mediation/conciliation proceedings.
e) No statement of parties or the witnesses shall be
recorded by the Mediator/Conciliator.”
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C] The format of the application which the Centre for Mediation and
Conciliation (SAMADHAN) requires every party to fill in is to the
following effect :-
“I agree to attend all the Mediation Sessions at the time
and place fixed by the Mediator. Any party can
withdraw from mediation if they so choose on finding
that it is not helping them or their case. Each party will
bear its own lawyer’s fees. Each party will also share
the cost of the Mediator’s fees equally, unless the Court
directs otherwise.
The entire process of mediation will be confidential
and whatever is submitted to the Mediator will not be
divulged or produced or be admissible in any Court
proceedings. The Mediator will not be compelled to
appear as a witness in any Court of law.
The mediation process is voluntary and not binding on
the parties till they, on their own volition, reach a
settlement agreement and sign the same.”
D] Certain other provisions relied upon by the respondent are:-
“i) The UNICITRAL Conciliation Rules contain Article
14, which provides for confidentiality of all matters
relating to conciliation.
ii) That Section of the Uniform Mediation Act, USA,
2003, provides for privilege against disclosure,
admissibility and discovery of communication and
information exchanged during mediation process.
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iii) That Rule of the Honk Kong International Arbitration
Centre Rules mandates mediation to be a private and a
confidential process.
iv) The Code of Practice of Family Mediators followed
by the Family Mediation Council, England and Wales in
paragraph 5.5 provides that the Mediator must not
disclose any information about, or obtained in the course
of the mediation to anyone, including a court appointed
officer or court, without express consent of each
participant, an order of the court or where the law imposes
an overriding obligation of disclosure on Mediator to do
so.
v) The Family Justice Courts, Singapore also mandates
that all information and matters discussed during the
Family Dispute Resolution Conferences, counselling,
mediation or co-mediation are to be confidential.
vi) The Members Code of Professional Conduct of
Family Mediation Canada in Article 7 extends the
principle of confidentiality to the documents prepared
specifically for or resulting from mediation.
vii) The California Rules of Court, 2017 also provides for
confidentiality to be maintained in mediation relating to
child custody matters.”
21. In Afcons Infrastructure Limited and another vs. Cherian Varkey
Construction Company Private Limited and others7
while dealing with
issues concerning scope and width of Section 89 Civil Procedure Code and
7
(2010) 8 SCC 24
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the modalities of Alternative Dispute Resolution mentioned therein, this Court
noted various kinds of disputes in respect of which process of Alternative
Dispute Resolution has normally been found to be suitable. Para 28 of the
decision was as under:-
“28. All other suits and cases of civil nature in
particular the following categories of cases (whether
pending in civil courts or other special
tribunals/forums) are normally suitable for ADR
processes:
(i) All cases relating to trade, commerce and contracts,
including
• disputes arising out of contracts (including all money
claims);
• disputes relating to specific performance;
• disputes between suppliers and customers;
• disputes between bankers and customers;
• disputes between developers/builders and customers;
• disputes between landlords and tenants/licensor and
licensees;
• disputes between insurer and insured;
(ii) All cases arising from strained or soured
relationships, including
• disputes relating to matrimonial causes, maintenance,
custody of children;
• disputes relating to partition/division among family
members/coparceners/co-owners; and
• disputes relating to partnership among partners.
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(iii) All cases where there is a need for continuation of
the pre-existing relationship in spite of the disputes,
including
• disputes between neighbours (relating to
easementary rights, encroachments, nuisance, etc.);
• disputes between employers and employees;
• disputes among members of
societies/associations/apartment owners’ associations;
(iv) All cases relating to tortious liability, including
• claims for compensation in motor accidents/other
accidents; and
(v) All consumer disputes, including
• disputes where a
trader/supplier/manufacturer/service provider is keen to
maintain his business/professional reputation and
credibility or product popularity.
The above enumeration of “suitable” and “unsuitable”
categorisation of cases is not intended to be exhaustive
or rigid. They are illustrative, which can be subjected
to just exceptions or additions by the court/tribunal
exercising its jurisdiction/discretion in referring a
dispute/case to an ADR process.”
22. In Moti Ram (dead) through Lrs. and another vs. Ashok Kumar and
another8
it was held that mediation proceedings are totally confidential and in
case the mediation is unsuccessful, the Mediator should not write anything
8
(2011) 1 SCC 466
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that was discussed, proposed or done during the mediation proceedings. The
observations in that behalf were:-
“2. In this connection, we would like to state that
mediation proceedings are totally confidential
proceedings. This is unlike proceedings in court which
are conducted openly in the public gaze. If the
mediation succeeds, then the mediator should send the
agreement signed by both the parties to the court
without mentioning what transpired during the
mediation proceedings. If the mediation is
unsuccessful, then the mediator should only write one
sentence in his report and send it to the court stating
that the “mediation has been unsuccessful”. Beyond
that, the mediator should not write anything which was
discussed, proposed or done during the mediation
proceedings. This is because in mediation, very often,
offers, counter offers and proposals are made by the
parties but until and unless the parties reach to an
agreement signed by them, it will not amount to any
concluded contract. If the happenings in the mediation
proceedings are disclosed, it will destroy the
confidentiality of the mediation process.”
Similarly, while dealing with a matter arising under the Arbitration and
Conciliation Act, 1996, it was held by this Court in Govind Prasad Sharma
and others vs. Doon Valley Officers Co-operative Housing Society Ltd.9
that “both the Conciliator and the parties must keep as confidential all matters
relating to conciliation proceedings”.
9 AIR 2017 SC 4968 : 2017 (11) SCALE 231
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23. Reliance was placed by the respondent on the decisions mentioned above
and some statutory provisions including procedural norms in different
jurisdictions to submit that there must be absolute confidentiality in respect of
any statements made during the course of mediation. The appellant, however,
relies upon Sub-Rule(viii) of Rule 8 of the Rules in support of the submission
that in relation to matters, inter alia, of custody or guardianship of any child
or children, the Counsellor could be asked to submit to the Judge a report
relating to home environment of the parties concerned, their personalities and
their relationship with the child and or children in order to assist the Judge in
deciding the questions involved in the matter.
24. We, thus, have line of cases dealing with mediation/conciliation and
other proceedings in general and Rule 8 of the Rules dealing inter alia, with
custody issues which is in the nature of an exception to the norms of
confidentiality. It is true that the process of mediation is founded on the
element of confidentiality. Qualitatively, Mediation or Conciliation stands on
a completely different footing as against regular adjudicatory processes.
Instead of an adversarial stand in adjudicatory proceedings, the idea of
mediation is to resolve the dispute at a level which is amicable rather than
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adversarial. In the process, the parties may make statements which they
otherwise they would not have made while the matter was pending
adjudication before a court of law. Such statements which are essentially
made in order to see if there could be a settlement, ought not to be used
against the maker of such statements in case at a later point the attempts at
mediation completely fail. If the statements are allowed to be used at
subsequent stages, the element of confidence which is essential for healthy
mediation/conciliation would be completely lost. The element of
confidentiality and the assurance that the statements would not be relied upon
helps the parties bury the hatchet and move towards resolution of the disputes.
The confidentiality is, thus, an important element of mediation/conciliation.
25. Complete adherence to confidentiality would absolutely be correct in
normal matters where the role of the court is purely of an adjudicator. But
such an approach may not essentially be conducive when the court is called
upon and expected to discharge its role in the capacity as parens patriae and
is concerned with the welfare of a child. All custody and guardianship issues
are resolved on the touchstone or parameter of “best interest of the child”. In
custody and guardianship disputes between two parties, a minor child is in a
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peculiar situation. At times, both sides are busy fighting legal battles and the
court is called upon in parens patriae to decide what is in the best interest of
the child. In order to reach correct conclusion, the court may interview the
child or may depend upon the analysis of an expert who may spend some
more time with the child and gauge the upbringing, personality, desires or
mental frame of the child and render assistance to the court. It is precisely for
this reason that the element of confidentiality which is otherwise the basic
foundation of mediation/conciliation, to a certain extent, is departed from in
Sub-Rule (viii) of Rule 8 of the Rules.
26. If the reports of the Counsellor touching upon the home environment of
the parties concerned, their personalities and their relationship with their child
or children would assist the court in determining the custody or guardianship
issues, any technicality ought not to stand in the way. Sub-Rule (viii) of Rule
8 seeks to achieve that purpose and makes such material available for the
assessment of the court. The observations of this Court in Ashish Ranjan vs.
Anupma Tandon and another10 have crystalized the approach to be adopted
in matters concerning custody or guardianship issues. Paras 18 & 19 of the
decision are as under:
10 (2010) 14 SCC 274
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“18. It is settled legal proposition that while
determining the question as to which parent the care
and control of a child should be given, the paramount
consideration remains the welfare and interest of the
child and not the rights of the parents under the statute.
Such an issue is required to be determined in the
background of the relevant facts and circumstances and
each case has to be decided on its own facts as the
application of doctrine of stare decisis remains
irrelevant insofar as the factual aspects of the case are
concerned. While considering the welfare of the child,
the “moral and ethical welfare of the child must also
weigh with the court as well as his physical wellbeing”. The child cannot be treated as a property or a
commodity and, therefore, such issues have to be
handled by the court with care and caution, with love,
affection and sentiments applying human touch to the
problem. Though, the provisions of the special statutes
which govern the rights of the parents or guardians
may be taken into consideration, there is nothing which
can stand in the way of the court exercising its parens
patriae jurisdiction arising in such cases. (Vide Gaurav
Nagpal v. Sumedha Nagpal11.)
19. The statutory provisions dealing with the custody
of the child under any personal law cannot and must
not supersede the paramount consideration as to what
is conducive to the welfare of the minor. In fact, no
statute on the subject, can ignore, eschew or obliterate
the vital factor of the welfare of the minor. (Vide
Elizabeth Dinshaw v. Arvand M. Dinshaw12
,
Chandrakala Menon v. Vipin Menon13
, Nil Ratan
11(2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1 : AIR 2009 SC 557
12 (1987) 1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 3
13 (1993) 2 SCC 6 : 1993 SCC (Cri) 485
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Kundu v. Abhijit Kundu14
, Shilpa Aggarwal v. Aviral
Mittal15 and Athar Hussain v. Syed Siraj Ahmed16.)”
27. Statements made by the parents during the course of mediation may not
be relied upon on the ground of confidentiality but natural responses and
statements made by the minor to the Counsellor would certainly afford a
chance to decide what is in the best interest of the child. A child may respond
naturally and spontaneously in its interactions with the Counsellor, who is
professionally trained to make the child feel comfortable. Record of such
interaction may afford valuable inputs to the Court in discharge of its duties in
parens patriae jurisdiction. If during such interaction issues or aspects
concerning welfare of a child are noticed, there is no reason why the Court be
deprived of access to such aspects. As held by this Court in various
judgments, the paramount consideration ought to be to see what is in the best
interest of the child.
28. In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged to give
report, inter alia, relating to home environment of the parties concerned, their
personalities and their relationship with the child and/or children in order to
14 (2008) 9 SCC 413
15 (2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192
16 (2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528
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assist the Judge in deciding the question of guardianship of any child or
children. The intention is clear that the normal principle of confidentiality
will not apply in matters concerning custody or guardianship issues and the
Court, in the best interest of the child, must be equipped with all the material
touching upon relevant issues in order to render complete justice. This
departure from confidentially is consistent with the underlined theme of the
Act in general and Section 12 in particular. Once there is a clear exception in
favour of categories stated therein, principles in any other forms of
mediation/conciliation or other modes of Alternative Dispute Resolution
regarding confidentiality cannot be imported. The effect of such exception
cannot be diluted or nullified. In our view, the High Court considered the
matter in correct perspective in paragraphs 17 to 20 of its judgment dated
07.02.2017.
29. There is, however, one aspect which must also be considered and that is
who is the “Counsellor” within the meaning of Rule 8 and whether the
Counsellor who assisted the court in the present matter comes within the four
corners of said provision. It is true that under Section 6 the Counsellors are
appointed by the State Government in consultation with the High Court. It is
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also true that the Counsellor in the present case was not the one who was
appointed in terms of Section 6 but was appointed by a committee of the High
Court and her assistance had been requested for in connection with many
matters. The order passed on 06.05.2016 had indicated that the Mediator
could join “any other person” as may be deemed necessary for a holistic and
effective mediation. The next order dated 11.05.2016 did mention the name
of the Counsellor and the fact that the Counsellor had a fruitful meeting with
Aditya. The Counsellor, thereafter, interacted with him on 08.07.2016 and
11.07.2016, based on which interaction, a report was submitted on
21.07.2016. The engagement of the Counsellor was thus in complete
knowledge of the parties as well as with express acceptance of the High
Court. It may be that said Counsellor was not appointed under Section 6 of
the Act but if the paramount consideration is the welfare of the child, there
cannot be undue reliance on a technicality. As a matter of fact, the width of
Section 12 of the Act would admit no such restriction. The report given by
the Counsellor in the present case cannot, therefore, be eschewed from
consideration. It is noteworthy that there was absolutely nothing against the
Counsellor and in the judgment under appeal, the High Court went on to
observe in para No.30 that the Counsellor was well experienced and known
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for her commitment and sincerity to secure a settlement which would be
satisfactory to all.
30. We do not, therefore, see any reason why the reports in the present case,
be kept out of consideration.
31. We, therefore, allow this appeal, set aside the judgment dated 11.12.2017
passed by the High Court and restore the earlier judgment dated 17.02.2017
passed by the High Court of Delhi. There shall be no order as to costs.
…………..…..……..……J.
(Abhay Manohar Sapre)
....………….……………J.
(Uday Umesh Lalit)
New Delhi,
February 15, 2019
