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 2

nd

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 SAMADHAN-

Delhi High Court Mediation and Conciliation Centre

on 9

th

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 9

th

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 well-

meant 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

1

Nazir 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-in-

mediation 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 others

3

and Parsion Devi and others vs.

Sumitri Devi and others

4

, it was submitted by the appellant that the exercise

of review jurisdiction was not warranted at all. In Inderchand Jain

2

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 India

5

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 Rath

3

, 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 Devi

4

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 others

6

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

SLP(C)No.9267 of 2018

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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 sub-

section (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 will-

ingness 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 others

7

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

another

8

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 another

10

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 well-

being”. 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 Nagpal

11

.)

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. Dinshaw

12

,

Chandrakala Menon v. Vipin Menon

13

, 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 Kundu

14

, Shilpa Aggarwal v. Aviral

Mittal

15

and Athar Hussain v. Syed Siraj Ahmed

16

.)”

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