DATE OF JUDGEMENT:
15th February 2019
JUDGES:
Justice U.U Lalit
Justice Abhay Manhor Sapre
PARTIES:
Appellant- Perry Kansagra
Respondent- Smirti Madan Kansagra
SUBJECT
- The Supreme Court observed that the 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 may be.
OVERVIEW
- The applicant (Kenya and British Citizen) and the respondent (Indian Citizen) got married and the respondent shifted to Kenya and a son named Aditya Vikram Kansgra was born to the couple in New Delhi. The respondent had filed a civil suit before the High Court of Delhi praying for an injunction to restrain the appellant from removing Aditya from the custody of the respondent.
- After 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 a Guardianship petition praying that he be declared the legal guardian of Aditya and be given his permanent custody. The Guardianship application was registered before the Family Court, Saket, New Delhi.
- 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 was objected to by the respondent.
- The Family Court had allowed the application and ordered that the child may produce before the court from 10 am on 07.05.2015 before he goes for a meeting with his father and grandparents.
- Aggrieved by the order, the respondent applied before the High Court. The High Court bench referred the parties to meditation and also directed Aditya to be produced before the Court.
- The visitation was supervised by the court and the Court appointed a Counsellor who has been directed to remain present in the visitation. During the mediation sessions, the Mediator and the Counsellor interacted with Aditya. Based upon the interaction with him, the Counsellor submitted a report in a sealed cover.
- In the present case, an interim report was submitted by the Mediator with the sealed cover, and the report was taken on record. Copies of the report were given to the parties. The appellant relied upon the report and prayed for permission to speak to Aditya on the telephone. While opposing the prayer, the respondent objected to such reliance on the ground of confidentiality. The Mediator thereafter filed the final report, reporting it as a failure.
- 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 contended that the reports could not have relied upon the given principle of confidentiality. The High Court held that the mediation has failed and would not fall within the bar of confidentiality. Hence, it cannot be used in any proceeding.
LEGAL PROVISIONS
- Section 12 of the Family Courts Act, 1984: 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.
ISSUES
- Whether the High Court was justified in exercising review jurisdiction?
- Whether the High Court judgement was correct in response to the mediation reports to hold no confidential proceedings and which no party could use the same in court?
JUDGEMENT ANALYSIS
- Firstly, the court observed that the 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.
- Further, the record of such interaction may afford valuable inputs to the Court in the discharge of its duties in the parens patriae jurisdiction. If during such interaction, issues or aspects concerning the welfare of a child are noticed, there is no reason why the Court be deprived of access to such aspects.
- In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged to give a report, relating to the home environment of the parties concerned, their personalities and their relationship with the child and/or children.
- In addition to that, such record assists the Judge to decide 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.
- There is a clear exception of Section 12 in favour of principles in any other forms of mediation/conciliation or other modes of Alternative Dispute Resolution regarding confidentiality that cannot be imported. The effect of such an exception cannot be diluted or nullified. The High Court considered the matter from the correct perspective.
- Lastly, in the present case, the mediation was appointed by a committee of the High Court. The report given by the Counsellor in the present case cannot be eschewed from consideration. Therefore, the court did not see any reason as to why the reports in the present case are kept out of consideration.
CONCLUSION
The court allowed the appeal and set aside the judgment dated 11.12.2017 passed by the High Court and restored the earlier judgment dated 17.02.2017 passed by the High Court of Delhi. The court ordered that there will be no order as to costs.
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