PERRY KANSAGRA versus SMRITI MADAN KANSAGRA

[2019] 3 S.C.R. 991

PERRY KANSAGRA

SMRITI MADAN KANSAGRA

(Civil Appeal No. 1694 of 2019)

FEBRUARY 15, 2019[ABHAY MANOHAR SAPRE ANDUDAY UMESH LALIT, JJ.]

Child welfare:

Custody and guardianship matter – Confidentiality inmediation process – Reports of the mediator as also of the counsellorconcerning the behavior and attitude of the child, if could be usedin court proceedings, when the mediation process has failed – Held:Complete adherence to confidentiality is absolutely correct in normalmatters where the role of the court is purely of an adjudicator – Butsuch an approach not essentially conducive when the court is calledupon and expected to discharge its role in the capacity as parenspatriae and is concerned with the welfare of child – All custodyand guardianship issues are resolved on the touchstone or parameterof best interest of the child – Statements made by the parents duringthe course of mediation may not be relied upon on the ground ofconfidentiality but natural responses and statements made by theminor to the Counsellor, reports of the Counsellor touching uponthe home environment of the parties concerned, their personalitiesand their relationship with their child or children would assist thecourt in determining the custody or guardianship issues, anytechnicality ought not to stand in the way – Order passed by theHigh Court holding that the reports of Mediator and Counsellorwere part of confidential proceedings and no party could bepermitted to use the same in any court proceedings or could placeany reliance, set aside – Family Courts Act, 1984 – ss. 6 and 12 –Family Courts (Procedure) Rules, 1992 – r 8(viii).

Review: Review jurisdiction – Exercise of – When – Held: Toexercise review jurisdiction, the error must be self-evident – An errorwhich is required to be detected by process of reasoning can hardlybe said to be an error apparent on the face of the record – On facts,the exercise of jurisdiction was not correct – High Court acted as ifit was sitting in appeal over the earlier decision – Even assuming

Athat there was no correct appreciation of facts and law in the earlierjudgment, the parties could be left to challenge the decision in anappeal – Review was not proper remedy at all – High Court erredin entertaining the review petition and setting aside the earlier view.

Allowing the appeal, the CourtB

HELD: 1. An error which is required to be detected by aprocess of reasoning can hardly be said to be an error apparenton the face of the record. To justify exercise of review jurisdiction,the error must be self-evident. Tested on this parameter, theexercise of jurisdiction was not correct. The exercise undertakenCin the instant case, was as if the High Court was sitting in appealover the earlier decision dated 17.02.2017. Even assuming thatthere was no correct appreciation of facts and law in the earlierjudgment, the parties could be left to challenge the decision inan appeal. But the review was not proper remedy at all. TheHigh Court erred in entertaining the review petition and set asideDthe earlier view dated 17.02.2017. Having so concluded, thelogical course in the circumstances would be to set aside thejudgment under appeal and permit the respondent to challengethe judgment dated 17.02.2017. But such course would entailfurther litigation. [Para 16][1008-G, H; 1009-A, B]E2.1 Rule 8 of the Family Courts (Procedure) Rules, 1992dealing with custody issues which is in the nature of an exceptionto the norms of confidentiality. It is true that the process ofmediation is founded on the element of confidentiality.Qualitatively, Mediation or Conciliation stands on completelyFdifferent footing as against regular adjudicatory processes. Insteadof an adversarial stand in adjudicatory proceedings, the idea ofmediation is to resolve the dispute at level which is amicablerather than adversarial. In the process, the parties may makestatements which they otherwise would not have made while thematter was pending adjudication before court of law. SuchGstatements which are essentially made in order to see if therecould be settlement, ought not to be used against the maker ofsuch statements in case at later point the attempts at mediationcompletely fail. If the statements are allowed to be used atsubsequent stages, the element of confidence which is essentialHfor healthy mediation/conciliation would be completely lost. The

element of confidentiality and the assurance that the statementswould not be relied upon helps the parties bury the hatchet andmove towards resolution of the disputes. The confidentiality is,thus, an important element of mediation/conciliation.[Para 24][1018-G, H; 1019-A-C]

2.2 Complete adherence to confidentiality would absolutelybe correct in normal matters where the role of the court is purelyof an adjudicator. But such an approach may not essentially beconducive when the court is called upon and expected to dischargeits role in the capacity as parens patriae and is concerned withthe welfare of child. All custody and guardianship issues areresolved on the touchstone or parameter of “best interest of thechild”. In custody and guardianship disputes between two parties,a minor child is in peculiar situation. At times, both sides arebusy fighting legal battles and the court is called upon in parenspatriae to decide what is in the best interest of the child. In orderto reach correct conclusion, the court may interview the child ormay depend upon the analysis of an expert who may spend somemore time with the child and gauge the upbringing, personality,desires or mental frame of the child and render assistance to thecourt. It is precisely for this reason that the element ofconfidentiality which is otherwise the basic foundation ofmediation/conciliation, to certain extent, is departed from inSub-Rule (viii) of Rule 8 of the Rules. [Para 25][1019-D-F]

2.3 If the reports of the Counsellor touching upon the homeenvironment of the parties concerned, their personalities andtheir relationship with their child or children would assist thecourt in determining the custody or guardianship issues, anytechnicality ought not to stand in the way. Sub-Rule (viii) of Rule8 seeks to achieve that purpose and makes such material availablefor the assessment of the court. [Para 26][1019-G, H; 1020-A]

2.4 Statements made by the parents during the course ofmediation may not be relied upon on the ground of confidentialitybut natural responses and statements made by the minor to theCounsellor would certainly afford chance to decide what is inthe best interest of the child. child may respond naturally andspontaneously in its interactions with the Counsellor, who isprofessionally trained to make the child feel comfortable. Recordof such interaction may afford valuable inputs to the Court in

Adischarge of its duties in parens patriae jurisdiction. If duringsuch interaction issues or aspects concerning welfare of achild are noticed, there is no reason why the Court bedeprived of access to such aspects. The paramount considerationought to be to see what is in the best interest of the child.[Para 27][1021-A-C]B

2.5 In terms of Sub Rule (viii) of Rule 8, the Counsellor isobliged to give report, inter alia, relating to home environmentof the parties concerned, their personalities and their relationshipwith the child and/or children in order to assist the Judge indeciding the question of guardianship of any child or children.CThe intention is clear that the normal principle of confidentialitywill not apply in matters concerning custody or guardianshipissues and the Court, in the best interest of the child, must beequipped with all the material touching upon relevant issues inorder to render complete justice. This departure fromDconfidentially is consistent with the underlined theme of the Actin general and Section 12 in particular. Once there is clearexception in favour of categories stated therein, principles in anyother forms of mediation/conciliation or other modes ofAlternative Dispute Resolution regarding confidentiality cannotbe imported. The effect of such exception cannot be diluted orEnullified. [Para 28][1021-C-F]

2.6 Under Section 6 the Counsellors are appointed by theState Government in consultation with the High Court. TheCounsellor in the instant case was not the one who was appointedin terms of Section 6 but was appointed by committee of theFHigh Court and her assistance had been requested for inconnection with many matters. The order passed on 06.05.2016had indicated that the Mediator could join “any other person” asmay be deemed necessary for holistic and effective mediation.The next order dated 11.05.2016 did mention the name of theGCounsellor and the fact that the Counsellor had fruitful meetingwith ‘A’-son of the parties. The Counsellor, thereafter, interactedwith him on 08.07.2016 and 11.07.2016, based on whichinteraction, report was submitted on 21.07.2016. Theengagement of the Counsellor was thus, in complete knowledgeof the parties as well as with express acceptance of the HighHCourt. The Counsellor was not appointed under Section 6 of theAct but if the paramount consideration is the welfare of the child,

there cannot be undue reliance on technicality. As matter offact, the width of Section 12 would admit no such restriction. Thereport given by the Counsellor in the instant case cannot,therefore, be eschewed from consideration. There was absolutelynothing against the Counsellor and in the judgment under appeal,the High Court went on to observe that the Counsellor was wellexperienced and known for her commitment and sincerity tosecure settlement which would be satisfactory to all. There isno reason why reports in the instant case be kept out ofconsideration. The subsequent judgment passed by the HighCourt is set aside and the earlier judgment passed by the HighCourt is restored. [Paras 29-31][1021-G, H; 1022-A-E]

Afcons Infrastructure Limited and another v. CherianVarkey Construction Company Private Limited andothers (2010) 8 SCC 24 : [2010] 8 SCR 1053 ; MotiRam (dead) through Lrs. and another v. Ashok Kumarand another (2011) 1 SCC 466 : [2010] 14 SCR 809 ;Govind Prasad Sharma and others v. Doon ValleyOfficers Co-operative Housing Society Ltd. (2017) 11SCALE 231 ; Ashish Ranjan v. Anupma Tandon andanother (2010) 14 SCC 274 : [2010] 14 SCR 961 ;Inderchand Jain (dead) through Lrs. v. Motilal (dead)through Lrs. (2009) 14 SCC 663 : [2009] 11 SCR 252; Ajit Kumar Rath v. State of Orissa and others (1999) 9SCC 596 : [1999] 4 Suppl. SCR 302 ; Parsion Deviand others v. Sumitri Devi and others (1997) 8 SCC715 : [1997] 4 Suppl. SCR 470 ; Board of Controlfor Cricket in India and another v. Netaji Cricket Cluband others (2005) 4 SCC 741: [2005] 1 SCR 173 -referred to.

ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 1694of 2019.

From the Judgment and Order dated 11.12.2017 of the High Courtof Delhi at New Delhi in Rev. Pet. No. 221 of 2017 in MAT APP (F.C.)No. 67 of 2016.B

Inderjeet Saroop, Ms. Anunya Mehta, Raghav Saroop,Ms. Arunima Dwivedi, Advs. for the Appellant.

Saurabh Kirpal, Prosenjeet Banerjee, Ms. Mansi Sharma,Ms. Shreya Singhal, Advs. for the Respondents.

CThe Judgment of the Court was delivered by

UDAY UMESH LALIT, J. 1. Leave granted.

2. This appeal challenges the final Judgment and Order dated11.12.2017 passed by the High Court of Delhi allowing Review PetitionNo.221 of 2017 preferred by the respondent against the judgment andDorder dated 17.02.2017 passed by the High Court of Delhi in MAT App.(F.C.) No.67 of 2016.

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 matrimonialEhome with the appellant. son, named Aditya Vikram Kansagra wasborn to the couple on 02.12.2019 at New Delhi. After delivery, therespondent returned back to Nairobi along with Aditya. Thereafter, theRespondent and Aditya travelled from Kenya to India on few occasions.Aditya holds Kenyan as well as British passport.

F4. The appellant, Respondent and Aditya came from Nairobi toNew Delhi on 10.03.2012. According to the appellant, the return ticketsfor travel back to Nairobi were booked for 06.06.2012. While in India,in May 2012, the Respondent filed civil suit registered as CS (OS)No.1604 of 2012 before the High Court of Delhi praying inter alia foran injunction to restrain the appellant from removing Aditya from theGcustody of the Respondent. Upon notice being issued, the appellantcontested the suit in which visitation orders were passed by the HighCourt from time to time. The appellant thereafter filed GuardianshipPetition praying inter alia that he be declared the legal Guardian ofAditya and be given his permanent custody. The Guardianship PetitionHdated 06.11.2012 was registered as No.G-53 of 2012 before the FamilyCourt, Saket, New Delhi.

5. In terms of visitation orders passed by the High Court, theappellant along with paternal grandparents were permitted to meet Adityafor 2 hours on Friday, Saturday and Sunday in the 2[nd] week of everymonth. According to the appellant he flew from Nairobi to New Delhievery month to meet Aditya along with the paternal grandparents. Inview of the pendency of the guardianship petition, CS (OS) No.1604 of2012 was disposed of by the High Court on 31.08.2015, leaving theparties to place their grievances before the Family Court. Thearrangement of visitation was thereafter modified by the Family Courtby its orders dated 09.02.2016 and 09.03.2016.

6. On 18.04.2016, an application was filed by the appellant prayingthat the Family Court may direct the Court Counsellor to bring Aditya tothe Court for an in-chamber meeting, which prayer was objected to bythe Respondent. After hearing both sides, the Family Court allowedsaid application vide Order dated 04.05.2016, and directed that Adityabe produced before the Court 07.05.2016. The relevant part of theOrder was as under:-

“…..The court is parens patriae in such proceedings. Petitioner’svisitation with the child is anyway scheduled for 07.05.2016. Letthe child be produced before the court at 10 am on 07.05.2016before 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 hearingboth sides, Division Bench of the High Court referred the parties tomediation and also directed that Aditya be produced before the Court on11.05.2016. Paragraphs 7 and 9 of said Order were :-

“7. During our interaction with the parties, desire is expressedby the parties to make one more attempt for negotiatedsettlement of all disputes between the parties by recourse tomediation. The parents of the respondent are also present andhave joined the proceedings before us. They have also submittedthat they would like to make an attempt for negotiated settlementfor 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 Mediationand Conciliation Centre on 9[th] May, 2016 at 2:30 pm.

A(ii) It shall be open for the learned Mediator to join any otherperson or relative of the parties, as may be deemed necessary,for holistic and effective mediation.

(iii) In case, the respondent or any of his relative are not availablein India, it shall be open for the learned Mediator to join them byBany electronic mode of communication including Skype, VideoConferencing, etc. at the cost of the respondent.

(iv) It shall also be open for the learned Mediator to meet thechild at any place, as may be deemed convenient to her, and toarrange any visitation or meetings with the respondent of the childCwith the consent of the parties.”

8. Thereafter, the matter came up on 11.05.2016. The High Courtinteracted with Aditya and following observations were made in paras 2to 6 of its Order :-

D“2. We are also informed that the child has today met with Ms.Sadhana Ramachandran, learned Mediator as well as Ms. SwatiShah, Counsellor in SAMADHAN – Delhi High court Mediationand Conciliation Centre and that the mediation efforts are stillunderway.

E3. The son of the parties – Master Aditya Vikram Kansagra hasbeen produced before us today. We have also had longconversation with him and are deeply impressed with the maturityof this intelligent 6½ year old child who displays self confidenceand remarkable capacity of expressing himself with clarity. Heexhibits no sign of confusion or nervousness at all.F

4. We also note that the child was comfortable in his interactionwith his father and grandparents in court. The child has expressedhappiness at his visitations with his father and grandparents. Heunreservedly stated that he looks forward to the same. MasterAditya Vikram Kansagra is also able to identify other relatives inGKenya 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 attachedto his mother and Nani. His bearing and personality clearly bearthe stamp of the fine upbringing being given to him by the appellantHand her mother.

6. As of now, since 9[th] February, 2016, the child is meeting hisfather and grandparents between 10:30 am and 05:00 pm onSaturday and Sunday in the second week of every month and fortwo hours on Friday in the second week of every month. Thevisitation is supervised as the court has appointed Counsellorwho has been directed to remain present throughout the visitation.”

9. During the ensuing mediation sessions, the Mediator and theCounsellor interacted with Aditya. The Counsellor interacted with Adityaon 08.07.2016 and 11.07.2016. Based upon her interactions with him,the Counsellor submitted report dated 21.07.2016 in sealed cover.Though, mediation was attempted on many occasions, the parties wereunable to resolve their disputes and differences and an interim reportwas submitted by the Mediator on 22.07.2016. On 11.08.2016, the sealedcover containing the report of the Counsellor was opened and the reportwas taken on record. Copies of the report of the Counsellor were givento 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 21.07.2016and prayed for permission to speak to Aditya on telephone. Whileopposing the prayer, the respondent objected to such reliance on theground of confidentiality. The Mediator thereafter filed final report inNovember, 2016 reporting failure.

10. Thereafter the matter came up for final arguments beforeanother Division Bench of the High Court. The Respondent raised theissue of admissibility of the reports submitted by the Mediator andCounsellor contending that the reports could not be relied upon in viewof principle of confidentiality. The High Court dealt with said submissionsand while disposing of the appeal, by its judgment dated 17.02.2017observed as under:-

“10. The mediation has failed.

11. But we are called upon to decide an important questionconcerning confidentiality of the mediation process for the reasonon October 11, 2016 report was received from the Mediatorwhich was taken on record and copy given to both parties. Thereport of the Mediator refers to child counsellor being involvedwho had also given an independent report which was also takenon record.

… … …… …

“13. The report of the child counsellor is to the effect that thechild was normal and in spite of being happy with his mother heseems to idolize his father and affectionately remembers his housein Kenya; about which house he loved talking with the counsellor.The affection and the bond of the child with the father wascommended as the positive attitude of the appellant who, obviouslywas not torturing the child. The child showed his love, affectionand comfort for the appellant, evidenced by he fondly and happilytalking about recent vacation in Kashmir with his mother. Thechild was not uncomfortable with the idea of making trip toKenya.

17. There can be no quarrel with the proposition that mediationproceedings are confidential proceedings and anything disclosed,discussed or proposed by the parties before the mediator cannotbe recorded, much less divulged. The reason being that veryoften during mediations, offers, counter offers and proposals aremade. The ethos of mediation would bar disclosure of specifiedcommunications and writings associated with mediation. Partiesare encouraged during mediation to engage in honest discussionsas regards their problems and in matrimonial disputes these honestdiscussions many time give rise to better understanding betweenthe couple. Such an approach encourages forget and forgiveattitude to be formed by the parties. If either spouse is under anapprehension that the well-meant deliberations might subsequentlybe used against them it would hamper an unreserved considerationof their problems. The atmosphere of mutual trust during mediationwarrants complete confidentiality.18. But where the scope of mediation is the solution of childparenting issue, report by mediator or child counsellorconcerning the behavior and attitude of the child would not fallwithin the bar of confidentiality for the reason no information sharedby the couple is being brought on record. The mandate of Section12 of the Family Courts Act, 1984 cannot be lost sight of.

19. In the instant case, what has been taken on record duringmediation proceedings is the report of the Child Counsellor andthe mediator, which we find are reports commending the good

attitude of both parents who, unlike many other couples, are notusing the child as tool to take revenge against the other. Asnoted above, the interaction by the previous Division Bench withthe child has been recorded in the order dated May 11, 2016 i.e.the child being equally comfortable with both parents and havinga desire to spend quality time with not only his mother and relativesfrom the maternal side but even with the father and relatives fromthe paternal side. Such reports are neutral evaluation of expertopinion to Court to guide the Court as to what orders need to bepassed in the best interest of the child. These reports are notconfidential communications of the parties.

20. Having answered the issue which incidentally arose, and notingthat otherwise the appeal has been rendered infructuous, weterminate further proceedings in the appeal inasmuch as no ordersare now warranted to be passed in the appeal.

21. The learned Judge Family Court would consider grantingover night interim custody to the respondent when he is in Indiaby imposing such terms and conditions which would ensure thatthe child is not removed from the territory of India. The issueconcerning the appellant claiming that she has lost the Kenyanpassport of the child and fresh passport being issued in the nameof the child would also be looked into by the learned Judge, FamilyCourt.”

11. On 18.03.2017, the respondent filed Review Petition No.221of 2017 questioning the judgment dated 17.02.2017. The Review Petitionwas allowed by yet another Division Bench of High Court by judgmentand order dated 11.12.2017. After posing the question, “..whether theCounsellor’s report furnished in the course of mediation proceedings orthe Mediator’s report in case of mediation, when the process fails, canbe used by either of the parties during trial”, the High Court concludedthat the reports of the Mediator and the Counsellor “..shall be disregardedby the family court, when it proceeds to decide the merits of the case”.During the course of its discussion, the High Court noted Delhi HighCourt Mediation and Conciliation Rules, 2004; Format of application ofSAMADHAN (the Delhi High Court Mediation and Conciliation Centre);Conciliation rules of UNCITRAL; Sections 75 and 81 of the Arbitrationand Conciliation Act, 1996; Mediation Training Manual issued by theMediation and Conciliation Project Committee, Supreme Court of India

Aand Chartered Institute of Arbitrator’s Rules mandating confidentialityin matters pertaining to mediation and observed as under:-

“21. There can, be no quarrel with the proposition that the mediationproceedings are confidential and anything disclosed, discussed orproposed before the mediator need not be recorded, much lessdivulged and that if it is done there would always be anapprehension that the discussion may be used against the partiesand it would hamper the entire process. The atmosphere of mutualtrust warrants complete confidentiality and the same is in factnoted in the main judgment. The petitioner is aggrieved by itslater part which notes “but where the scope of the mediation isresolution of child parenting issue, the report concerning thebehavior and attitude of the child would not fall within thebar of confidentiality”. To our mind, this is against the principleof mediation and charts the course of slippery slope, as thisjudgment would hereafter discuss.

22. No exceptions are made in the mediation rules either in ourlaws or in various jurisdictions mentioned above to the absoluterule of confidentiality. This Court held the mandate of Section12 of the Family Courts Act, 1984 cannot be lost sight of; yetthe issue is whether the order dated May 6, 2016 was passedpurely under Section 12 of the Family Courts Act, 1984 or it wassimply to facilitate mediation of disputes between the parents ofthe child.

… … … … … … … …

25. Section 12 of the 1984 Act, empowers the Family Court withthe discretion to refer the parties to counsellor, Undoubtedly,that power also extends to the appellate court. However, thiscase has three rather unusual features: one that the Court neverauthorized the mediator to exercise power that is vestedstatutorily with it. The discretion to involve or not to involve acounsellor is the Court’s and is non delegable. The respondenthusband’s argument that the referral order permitted the mediatorto involve “others” cannot be meant to authorize the exercise ofdiscretion that is solely vested with the Court. Second, the issueof confidentiality is to be examined because the mediator furnishedtwo reports-to the Court, in this case. mediator’s position is

unique; undoubtedly she (or he) has professional training andcompetence to handle issues that involve intense and bitter struggleover matrimonial issues, properties, shared household, custody,(temporary or permanent) and in commercial matters, issues thathave monetary and financial impacts. In all cases, parties expresstheir fears, their expectations and their dearly held positions onthe strength of the confidence that they repose in the mediatorand the mediation process- both of which are reinforced bythe absolute cloak of confidentiality. Given these imperatives,mediator’s reports, where the process has led to failure, shouldnot record anything at all. Having regard to this position thefact that mediator in given case, proposes-for all the best andbona fide reasons, the involvement of counsellor, does not inany manner undermine or take away the Court’s sole power toexercise it. In the eventuality of the parties’ agreeing, to such acourse, they have to be asked to approach the Court, forappropriate orders:the Court would then refer them to thecounsellor. The question of the kind of report to be submitted tothe Court and whether it would be part of the record would beknown during the course of the proceeding. In the present case,the parties merely consented. There is nothing to show that theparties were aware that the mediator’s report, with regard tonot merely what transpired, but with respect to her reflections,would be given to the court; nor was there anything to showthat they were aware - when they consented to the involvementof counsellor that her report would be given to the court.The third unusual feature is that in at least two sittings with thecounsellor, the mediator was present. This “joint” proceeding is,in the opinion of the Court, unacceptable. It can lead to undesirableconsequences, especially if the mediator and counsellor proceedto furnish their reports (as they did in this case). reading ofboth reports in the present case, paints definite picture to thereader strongly suggestive of plausible course of action orconclusion. It is this, the power of suggestion, which parties areguaranteed protection from, when they agree to mediation.Imagine if there were to be possibility of divergence of opinion.Where would that lead? Aside from adding to contentiousness,the Court too would be left confounded.

… … … … … … … …

ABCDEFG

A29. The observations made in the main judgment dated February17, 2017 in effect would permit the mediators to exercise de facto,or in default, the exclusive powers of the Court under Section 12of the 1984 Act, which are non delegable. There is no question ofvalidation of such action, by later order of the Court. The dangerof this would be that Courts can well draw upon such irregularlyBproduced material, to arrive at conclusions. The requirement ofSection 12 also has to be understood as the mandate of law thatonly the Court and no other body can refer the parties tocounseling. The proposition that something which the law mandatesto be performed in one manner and no other manner “where aCpower is given to do certain thing in certain way, thething must be done in that way or not at all”[1] applies with fullforce. The order dated May 06, 2016 in this case merely referredthe parties to the mediator and carved out the course and ambit ofmediation. The report of the counsellor was never sought by theCourt, and yet was treated to be one under Section 12 of the ActDof 1984. Had the Court invoked Section 12 of the Family CourtsAct, 1984 it would have clearly spelt out and recorded that whiledoing so; and in that sense there ought to have been clearinvocation of Section 12. The absence of such referencenecessarily meant that the reference to “others’ meant only thoseEconnected with the dispute, such as family members of either thehusband or the wife, whose participation was to facilitateamicable dispute resolution, not independent evaluation by acounsellor in an unguided manner to be incorporated orannexed to mediation report.

F30. If such position is allowed as in this case, mediation maythen well be used as forum for gathering expert opinion whichwould then enter the main file of the case. The mandate of Section89 of the Civil Procedure Code, 1908, read with Rule 20 and Rule21 of the Delhi High Court Mediation and Conciliation Rules, 2004

provides for confidentiality and non-disclosure of informationGshared with the mediator and during the proceedings of mediation.In the present case, the help of the counsellor sought by themediator to get holistic settlement between the parties was notordered in the manner visualized by Section 12 of the Family Courts

1Nazir Ahmed v King Emperor AIR 1936 PC 243 followed by State of UP v. SingharaHSingh AIR 1964 SC 358

Act, 1984. Consequently, neither the report of the mediator norof the counsellor could have been allowed to be exhibited. Theyare contrary to the mandate of principles governing the mediation– they undermine party autonomy and choice; besides, they clearlyviolate Section 75 of the Arbitration and Conciliation Act. Theobservations in the judgment dated February 17, 2017 to the extentit notes that “the reports of the mediator as also of the counsellorconcerning the behavior and attitude of the child, especiallywhen the mediation process has failed would not fall withinthe bar of confidentiality and hence cannot be used in anyproceeding…… Such reports are neutral evaluation ofexpert opinion to Court to guide the Court as to what ordersneed to be passed in the best interest of the child. Thesereports are not confidential communications of the parties”and carving general exception to mediation confidentiality inchild custody matters and disputes for which the Family Courtcan seek the assistance of the counsellor, under Section 12 of the1984 Act, are hereby recalled. We hasten to add that this judgmentis not reflection on the mediator whose unstinted track record isknown to all, or the endeavor of the counsellor, who too is veryexperienced in her field. Their commitment and sincerity to securea settlement satisfactory to all, and the mediation process ingeneral, is not doubted; this judgment should in no way dampenthat zeal and determination that they have displayed.”12. The view taken by the High Court in allowing the review ispresently under challenge. Mr. Anunya Mehta, learned Advocate forthe appellant submitted - (a) the High Court exceeded the scope ofreview 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 process of reasoningcannot be termed as error apparent on the face of the record; b) thereport of the Counsellor was not hit by confidentiality as it merely recordedthe interaction of the Counsellor with the child and did not record anyinformation or submission by parties to the lis; that there is recognizedexception to the rule of confidentiality in child custody matters as thecourt, in such matters exercises parens patriae jurisdiction.

Mr. Saurabh Kirpal, learned Advocate for the respondentresponded - (i) mediation reports are part of confidential proceedingsand cannot be permitted to be used in court proceedings for which reliance

ABCDE

Awas placed on various statutory provisions; (ii) the Counsellor was notappointed under Section 6 of the Family Courts Act; (iii) exception underRule 8 (viii) to (xiv) of the Family Court Rules cannot be read as exceptionto Rules 20 and 23 of the Mediation Rules; (iv) the mediation reportsgiven by the Counsellor-in-mediation did not fall within the exceptionsprovided in rule 8; (v) there was no waiver of confidentiality and theBrespondent had objected to the use of the reports at the first instance;(vi) the earlier order being based on misconception of law, the HighCourt was right in exercising review jurisdiction.

13. The issues that arise for our consideration can broadly be putunder two heads:Ca) Whether the High Court was justified in exercising reviewjurisdiction and setting aside the earlier judgment and

b) Whether the High Court was correct in holding that the reportsof the Mediator and the Counsellor in this case were part ofDconfidential proceedings and no party could be permitted to usethe same in any court proceedings or could place any reliance onsuch reports.

14. As regards the first issue, relying on the decisions of this Courtin Inderchand Jain (dead) through Lrs. vs. Motilal (dead) through

ELrs.[2], Ajit Kumar Rath vs. State of Orissa and others[3] and ParsionDevi and others vs. Sumitri Devi and others[4], it was submitted by theappellant that the exercise of review jurisdiction was not warranted atall. In Inderchand Jain[2] it was observed in paras 10, 11 and 33 are asunder:-

“10. It is beyond any doubt or dispute that the review court doesFnot sit in appeal over its own order. rehearing of the matter isimpermissible in law. It constitutes an exception to the generalrule that once judgment is signed or pronounced, it should not bealtered. It is also trite that exercise of inherent jurisdiction is notinvoked for reviewing any order.G11. Review is not appeal in disguise. In Lily Thomas v. Union ofIndia[5] this Court held: (SCC p. 251, para 56)

2(2009) 14 SCC 663

3(1999) 9 SCC 5964(1997) 8 SCC 715H5(2000) 6 SCC 224

“56. It follows, therefore, that the power of review can beexercised for correction of mistake but not to substitute view.Such powers can be exercised within the limits of the statutedealing with the exercise of power. The review cannot be treatedlike an appeal in disguise.”

… … … … … … … … … …

33. The High Court had rightly noticed the review jurisdiction ofthe court, which is as under:

“The law on the subject—exercise of power of review, aspropounded by the Apex Court and various other High Courtsmay be summarised as hereunder:

(i) Review proceedings are not by way of appeal and have tobe strictly confined to the scope and ambit of Order 47 Rule 1CPC.

(ii) Power of review may be exercised when some mistake orerror apparent on the fact of record is found. But error on theface of record must be such an error which must strike one onmere looking at the record and would not require any long-drawnprocess of reasoning on the points where there may conceivablybe two opinions.

(iii) Power of review may not be exercised on the ground thatthe decision was erroneous on merits.

(iv) Power of review can also be exercised for any sufficientreason which is wide enough to include misconception of factor law by court or even an advocate.

(v) An application for review may be necessitated by way ofinvoking the doctrine actus curiae neminem gravabit.”

In our opinion, the principles of law enumerated by it, in the factsof this case, have wrongly been applied.”

In Ajit Kumar Rath[3], it was observed:-

“29. In review proceedings, the Tribunal deviated from theprinciples laid down above which, we must say, is wholly unjustifiedand exhibits tendency to rewrite judgment by which thecontroversy had been finally decided. This, we are constrained to

Asay, is not the scope of review under Section 22(3)(f) of theAdministrative Tribunals Act, 1985…………”

Similarly, in Parsion Devi[4]the principles were summarized as under:

“9. Under Order 47 Rule 1 CPC judgment may be open toreview inter alia if there is mistake or an error apparent on theBface of the record. An error which is not self-evident and has tobe detected by process of reasoning, can hardly be said to be anerror apparent on the face of the record justifying the court toexercise its power of review under Order 47 Rule 1 CPC. Inexercise of the jurisdiction under Order 47 Rule 1 CPC it is notpermissible for an erroneous decision to be “reheard andCcorrected”. review petition, it must be remembered has limitedpurpose and cannot be allowed to be “an appeal in disguise”.

15. On the other hand, reliance was placed by the respondent onthe decision in Board of Control for Cricket in India and another vs.Netaji Cricket Club and others[6] to submit that exercise in review wouldDbe justified if there be misconception of fact or law. Para 90 of saiddecision was to the following effect:

“90. Thus, mistake on the part of the court which would includea mistake in the nature of the undertaking may also call for areview of the order. An application for review would also beEmaintainable if there exists sufficient reason therefor. What wouldconstitute sufficient reason would depend on the facts andcircumstances of the case. The words “sufficient reason” in Order47 Rule 1 of the Code are wide enough to include misconceptionof fact or law by court or even an advocate. An application forFreview may be necessitated by way of invoking the doctrine “actuscuriae neminem gravabit”.”

16. We have gone through both the judgments of the High Courtin the instant case and considered rival submissions on the point. It iswell settled that an error which is required to be detected by processGof reasoning can hardly be said to be an error apparent on the face ofthe record. To justify exercise of review jurisdiction, the error must beself-evident. Tested on this parameter, the exercise of jurisdiction in thepresent case was not correct. The exercise undertaken in the presentcase, in our considered view, was as if the High Court was sitting in

H6(2005) 4 SCC 741

appeal over the earlier decision dated 17.02.2017. Even assuming thatthere 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 thereview was not proper remedy at all. In our view, the High Courterred in entertaining the review petition and setting aside the earlier viewdated 17.02.2017. Having so concluded, the logical course in thecircumstances would be to set aside the judgment under appeal andpermit the respondent to challenge the judgment dated 17.02.2017. Butsuch course would entail further litigation and therefore, we haveconsidered the matter from the stand point of second issue as well.

17. At the outset, we must, therefore, consider various provisionson which reliance was placed by either side.

18. The Family Courts Act, 1984 (hereinafter referred to as theAct) was enacted to provide for the establishment of Family Courts witha view to promote conciliation and secure speedy settlement of disputesrelating to marriage and family affairs and for matters connectedtherewith. Section 4 deals with “appointment of Judges” and sub-section(4) states that while selecting persons for appointment as Judges – everyendeavor shall be made to ensure that persons committed to the needinter alia to promote the welfare of children and to promote settlementof disputes by conciliation and counselling, are selected. Under Section6 Counsellors can be appointed by the State Government in consultationwith the High Court. Section 7 deals with “jurisdiction” and under subclause (g) of sub-section (1) the jurisdiction extends in relation toguardianship issues, or the custody of, or access to, any minor. Section9 deals with “duty of Family Court to make efforts for settlement” andempowers the Court, subject to any rules made by the High Court, tofollow such procedure as may be deemed fit. Section 10 deals with“procedure generally” and states inter alia that Family Court can laydown its own procedure with view to arrive at settlement. Section12 deals with “assistance of medical and welfare experts” and Section20 gives overriding effect to the Act. Section 21 enables the High Courtto frame rules which may inter alia provide for “efforts which may bemade by, and the procedure which may be followed by, Family Courtfor assisting and persuading parties to arrive at settlement”.

The relevant Sections being Sections 6, 9 and 12 of the Act are asunder:-

A“6. Counsellors, officers and other employees of FamilyCourts. – (1) The State Government shall in consultation withthe High Court, determine the number and categories ofcounsellors, officers and other employees required to assist aFamily Court in the discharge of its functions and provide theFamily Court with such counsellors, officers and other employeesBas it may think fit.

(2) The terms and conditions of association of the counsellors andthe terms and conditions of service of the officers and otheremployees, referred to in sub-section (1), shall be such as may bespecified by rules made by the State Government.C

9. Duty of Family Court to make efforts for settlement – (1)In every suit or proceeding, endeavor shall be made by the FamilyCourt in the first instance, where it is possible to do so consistentwith the nature and circumstances of the case, to assist andpersuade the parties in arriving at settlement in respect of theDsubject-matter of the suit or proceeding and for this purpose aFamily 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 theFamily Court that there is reasonable possibility of settlementEbetween the parties, the Family Court may adjourn the proceedingsfor such period as it think fit to enable attempts to be made toeffect such settlement.

(3) The power conferred by sub-section (2) shall be in additionto, and not in derogation of any other power of the Family CourtFto adjourn the proceedings.

12. Assistance of medical and welfare experts.- In every suitor proceedings, it shall be open to Family Court to secure theservices of medical expert or such person (preferably womanwhere available), whether related to the parties or not, including aGperson professionally engaged in promoting the welfare of thefamily as the court may think fit, for the purposes of assisting theFamily Court in discharging the functions imposed by this Act.”

19. Pursuant to the rule making power, the High Court of Delhinotified the Family Courts (Procedure) Rules, 1992 (hereinafter referred

to as the Rules). Rule 5 deals with Institution of Proceedings while Rule8 deals with procedure to be followed to arrive at settlement. Rule 8is to the following effect.

“8. Procedure to be followed to arrive at settlement (i) In everysuit or proceeding the Judge may, at any stage, direct the partiesto attend counsellor with view to promote conciliation and tosecure speedy settlement of disputes.

(ii) The parties shall be bound to attend the counsellor on the dateand time fixed by the Judge.

(iii) The counsellor may require the parties or any one of them toappear on date and time fixed for further counselling. In caseany of the parties fails to appear, the counsellor may report thematter to the Judge and the Judge shall pass such orders includingawarding of costs, as the circumstances of the case may require.The Judge may nevertheless require the counsellor to submit areport.

(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 partiesor any of them.

(c) Seek such information from the employer of any of theparties, 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 medicineor psychiatry.

b) seek assistance of any of the institutions, organizations orpersons mentioned in Section 5 of the Act.

vi) The counsellor shall maintain diary in respect of every casegiving in brief the steps taken.

vii) Information gathered by the counsellor, any statement madebefore the counsellor or any notes or report prepared by thecounsellor will be treated as confidential. The counsellor shall notbe called upon to disclose such information, statements, notes orreport to any court except with the consent of both the parties.

Aviii) The counsellor shall not be asked to give evidence in anycourt in respect of such information statements or notes.

Provided, however, that the counsellor will submit to the Judgea report relating to the home environment of the parties concerned,their personalities and their relationship with their child and/orBchildren in order to assist the Judge in deciding the question of thecustody or guardianship of any child or children of the marriage.

Provided further that the counsellor will also submit to the Judgea report relating to the home environment, income or standard ofliving of the party or parties concerned in order to assist the JudgeCin determining the amount of maintenance and/or alimony to begranted to one of the parties.

ix) The Judge may also request the counsellor to submit reporton any other matter, the Judge consider necessary.

x) copy of any report may be supplied to the parties, on suchDrequest being made by the parties.

xi) The parties will be entitled to make their submissions on thereport.

xii) The counsellor shall not be asked to give evidence in anycourt in respect of any report made by him.Exiii) Save as aforesaid, the counsellor will submit briefmemorandum to the Judge informing the Judge of the outcome ofthe proceedings within the time specified by the Judge.

xiv) When the parties arrive at settlement before the counsellorFrelating to the dispute or any part thereof, such settlement shall bereduced to writing and shall be signed by the parties andcountersigned by the counsellor. The Judge shall pronounce adecree or order in terms thereof unless the Judge considers theterms of the settlement unconscionable or unlawful.

Gxv) Cohabitation between the parties in the course of conciliationproceedings will not be deemed to be condonation of thematrimonial offence.

xvi) Even after passing of the decree or order the Judge mayrequire the counsellor to supervise the placement of children in

custody of party and to pay surprise visits to the home wherethe child resides. In case any alternation is required in thearrangements the counsellor will make report to the Judge. TheJudge may after notice to the parties pass such orders as Judgemay deem fit.

xvii) The Judge may require the counsellor to supervise, guideand/or assist reconciled couples, even after the disposal of thecase for such further period as the court may order.

xviii) On request received from the counsellor the Judge mayissue process to any person to appear before the counsellor atsuch place, date and time as may be desired by the counsellor.”

20. Since reliance has been placed on various other statutoryprovisions to bring home the issue regarding confidentiality in mediationprocess, 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 containedin any other law for the time being in force, the conciliator andthe parties shall keep confidential all matters relating to theconciliation proceedings. Confidentiality shall extend also tothe settlement agreement, except where its disclosure isnecessary for purposes of implementation and enforcement.

81.Admissibility of evidence in other proceedings. –The parties shall not rely on or introduce as evidence in arbitralor judicial proceedings, whether or not such proceedings relateto the dispute that is the subject of the conciliation proceedings,-

(a) views expressed or suggestions made by the other party inrespect of possible settlement of the dispute;

(b) admissions made by the other party in the course of theconciliation proceedings;

(c) proposals made by the conciliator;

(d) the fact that the other party had indicated his willingness toaccept proposal for settlement made by the conciliator.”

AB] Rule 20 of the Delhi High Court Mediation and ConciliationCentre (SAMADHAN) is to the following effect:-

“Rule 20: Confidentiality, disclosure and inadmissibilityof information.

(a)When Mediator /Conciliator receives factual informationBconcerning the dispute(s) from any party, he shall disclosethe substance of that information to the other party, so thatthe other party may have an opportunity to present suchexplanation as it may consider appropriate.

Provided that, when party gives information to theMediator/Conciliator subject to specific condition that itbe kept confidential, the Mediator/Conciliator shall notdisclose that information to the other party.

(b)Receipt or perusal, or preparation of records, reports orother documents by the Mediator/Conciliator, while servingDin that capacity shall be confidential and the MediatorConciliator shall not be compelled to divulge informationregarding those documents nor as to what transpired duringthe Mediator/Conciliator before any Court or tribunal orany other authority or any person or group of persons.

(c)Parties shall maintain confidentiality in respect of eventsthat transpired during the Mediation/ Conciliation and shallnot rely on or introduce the said information in otherproceedings as to:

(i) views expressed by party in the course of the mediationconciliation proceedings;

(ii) documents obtained during the mediation/conciliationwhich were expressly required to be treated asconfidential or other notes, drafts or information givenby the parties or the Mediator/Conciliator;

(iii) proposals made or views expressed by the MediatorConciliator.

(iv) admission made by party in the course of mediationconciliation proceedings;

(v) The fact that party had or had not indicated willingnessto accept proposal.

d) There shall be no audio or video recording of the mediationconciliation proceedings.

e) No statement of parties or the witnesses shall be recordedby the Mediator/Conciliator.”

C] The format of the application which the Centre for Mediationand Conciliation (SAMADHAN) requires every party to fill in isto the following effect :-

“I agree to attend all the Mediation Sessions at the time andplace fixed by the Mediator. Any party can withdraw frommediation if they so choose on finding that it is not helpingthem or their case. Each party will bear its own lawyer’sfees. Each party will also share the cost of the Mediator’sfees equally, unless the Court directs otherwise.

The entire process of mediation will be confidential andwhatever is submitted to the Mediator will not be divulged orproduced or be admissible in any Court proceedings. TheMediator will not be compelled to appear as witness in anyCourt of law.

The mediation process is voluntary and not binding on the partiestill they, on their own volition, reach settlement agreementand 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 toconciliation.

ii) That Section of the Uniform Mediation Act, USA, 2003,provides for privilege against disclosure, admissibility anddiscovery of communication and information exchanged duringmediation process.

iii) That Rule of the Honk Kong International Arbitration CentreRules mandates mediation to be private and confidentialprocess.

iv) The Code of Practice of Family Mediators followed by theFamily Mediation Council, England and Wales in paragraph5.5 provides that the Mediator must not disclose any information

Aabout, or obtained in the course of the mediation to anyone,including court appointed officer or court, without expressconsent of each participant, an order of the court or where thelaw imposes an overriding obligation of disclosure on Mediatorto do so.

Bv) The Family Justice Courts, Singapore also mandates that allinformation and matters discussed during the Family DisputeResolution Conferences, counselling, mediation or co-mediationare to be confidential.

vi) The Members Code of Professional Conduct of FamilyCMediation Canada in Article 7 extends the principle ofconfidentiality to the documents prepared specifically for orresulting from mediation.

vii) The California Rules of Court, 2017 also provides forconfidentiality to be maintained in mediation relating to childDcustody matters.”

21. In Afcons Infrastructure Limited and another vs. CherianVarkey Construction Company Private Limited and others[7] whiledealing with issues concerning scope and width of Section 89 CivilProcedure Code and the modalities of Alternative Dispute ResolutionEmentioned therein, this Court noted various kinds of disputes in respectof which process of Alternative Dispute Resolution has normally beenfound to be suitable. Para 28 of the decision was as under:-

“28. All other suits and cases of civil nature in particular thefollowing categories of cases (whether pending in civil courts orFother special tribunals/forums) are normally suitable for ADRprocesses:

(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;

H7(2010) 8 SCC 24

• 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, custodyof children;

• disputes relating to partition/division among family members/coparceners/co-owners; and

• disputes relating to partnership among partners.

(iii) All cases where there is need for continuation of thepre-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/apartmentowners’ 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 trader/supplier/manufacturer/service provideris keen to maintain his business/professional reputation andcredibility 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 oradditions by the court/tribunal exercising its jurisdiction/discretionin referring dispute/case to an ADR process.”

22. In Moti Ram (dead) through Lrs. and another vs. AshokKumar and another[8] it was held that mediation proceedings are totallyconfidential and in case the mediation is unsuccessful, the Mediator shouldnot write anything that was discussed, proposed or done during themediation proceedings. The observations in that behalf were:-

A“2. In this connection, we would like to state that mediationproceedings are totally confidential proceedings. This is unlikeproceedings in court which are conducted openly in the publicgaze. If the mediation succeeds, then the mediator should sendthe agreement signed by both the parties to the court withoutmentioning what transpired during the mediation proceedings. IfBthe mediation is unsuccessful, then the mediator should only writeone sentence in his report and send it to the court stating that the“mediation has been unsuccessful”. Beyond that, the mediatorshould not write anything which was discussed, proposed or doneduring the mediation proceedings. This is because in mediation,Cvery often, offers, counter offers and proposals are made by theparties but until and unless the parties reach to an agreementsigned by them, it will not amount to any concluded contract. Ifthe happenings in the mediation proceedings are disclosed, it willdestroy the confidentiality of the mediation process.”

DSimilarly, while dealing with matter arising under the Arbitrationand Conciliation Act, 1996, it was held by this Court in Govind PrasadSharma and others vs. Doon Valley Officers Co-operative HousingSociety Ltd.[9] that “both the Conciliator and the parties must keep asconfidential all matters relating to conciliation proceedings”.

E23. Reliance was placed by the respondent on the decisionsmentioned above and some statutory provisions including proceduralnorms in different jurisdictions to submit that there must be absoluteconfidentiality in respect of any statements made during the course ofmediation. The appellant, however, relies upon Sub-Rule(viii) of Rule 8of the Rules in support of the submission that in relation to matters, interFalia, of custody or guardianship of any child or children, the Counsellorcould be asked to submit to the Judge report relating to homeenvironment of the parties concerned, their personalities and theirrelationship with the child and or children in order to assist the Judge indeciding the questions involved in the matter.

24. We, thus, have line of cases dealing with mediation/conciliationand other proceedings in general and Rule 8 of the Rules dealing interalia, with custody issues which is in the nature of an exception to thenorms of confidentiality. It is true that the process of mediation is foundedon the element of confidentiality. Qualitatively, Mediation or Conciliation

H9AIR 2017 SC 4968 : 2017 (11) SCALE 231

stands on completely different footing as against regular adjudicatoryprocesses. Instead of an adversarial stand in adjudicatory proceedings,the idea of mediation is to resolve the dispute at level which is amicablerather than adversarial. In the process, the parties may make statementswhich they otherwise they would not have made while the matter waspending adjudication before court of law. Such statements which areessentially made in order to see if there could be settlement, ought notto be used against the maker of such statements in case at later pointthe attempts at mediation completely fail. If the statements are allowedto be used at subsequent stages, the element of confidence which isessential for healthy mediation/conciliation would be completely lost. Theelement of confidentiality and the assurance that the statements wouldnot be relied upon helps the parties bury the hatchet and move towardsresolution of the disputes. The confidentiality is, thus, an importantelement of mediation/conciliation.25. Complete adherence to confidentiality would absolutely becorrect in normal matters where the role of the court is purely of anadjudicator. But such an approach may not essentially be conducivewhen the court is called upon and expected to discharge its role in thecapacity as parens patriae and is concerned with the welfare of achild. All custody and guardianship issues are resolved on the touchstoneor parameter of “best interest of the child”. In custody and guardianshipdisputes between two parties, minor child is in peculiar situation. Attimes, both sides are busy fighting legal battles and the court is calledupon 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 childor may depend upon the analysis of an expert who may spend somemore time with the child and gauge the upbringing, personality, desiresor mental frame of the child and render assistance to the court. It isprecisely for this reason that the element of confidentiality which isotherwise the basic foundation of mediation/conciliation, to certainextent, is departed from in Sub-Rule (viii) of Rule 8 of the Rules.

26. If the reports of the Counsellor touching upon the homeenvironment of the parties concerned, their personalities and theirrelationship with their child or children would assist the court indetermining the custody or guardianship issues, any technicality oughtnot to stand in the way. Sub-Rule (viii) of Rule 8 seeks to achieve thatpurpose and makes such material available for the assessment of the

Acourt. The observations of this Court in Ashish Ranjan vs. AnupmaTandon and another[10] have crystalized the approach to be adopted inmatters concerning custody or guardianship issues. Paras 18 & 19 ofthe decision are as under:

“18. It is settled legal proposition that while determining theBquestion as to which parent the care and control of child shouldbe given, the paramount consideration remains the welfare andinterest of the child and not the rights of the parents under thestatute. Such an issue is required to be determined in thebackground of the relevant facts and circumstances and eachcase has to be decided on its own facts as the application ofCdoctrine of stare decisis remains irrelevant insofar as the factualaspects of the case are concerned. While considering the welfareof the child, the “moral and ethical welfare of the child must alsoweigh with the court as well as his physical well-being”. Thechild cannot be treated as property or commodity and,Dtherefore, such issues have to be handled by the court with careand caution, with love, affection and sentiments applying humantouch to the problem. Though, the provisions of the special statuteswhich govern the rights of the parents or guardians may be takeninto consideration, there is nothing which can stand in the way ofthe court exercising its parens patriae jurisdiction arising in suchEcases. (Vide Gaurav Nagpal v. Sumedha Nagpal[11].)

19. The statutory provisions dealing with the custody of the childunder any personal law cannot and must not supersede theparamount consideration as to what is conducive to the welfareof the minor. In fact, no statute on the subject, can ignore, eschewFor obliterate the vital factor of the welfare of the minor. (VideElizabeth Dinshaw v. Arvand M. Dinshaw[12], ChandrakalaMenon v. Vipin Menon[13], Nil Ratan Kundu v. Abhijit Kundu[14],Shilpa Aggarwal v. Aviral Mittal[15] and Athar Hussain v. SyedSiraj Ahmed[16].)”

G10(2010) 14 SCC 27411(2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1 : AIR 2009 SC 55712(1987) 1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 313(1993) 2 SCC 6 : 1993 SCC (Cri) 48514(2008) 9 SCC 41315(2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192H16(2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528

27. Statements made by the parents during the course of mediationmay not be relied upon on the ground of confidentiality but naturalresponses and statements made by the minor to the Counsellor wouldcertainly afford chance to decide what is in the best interest of thechild. child may respond naturally and spontaneously in its interactionswith the Counsellor, who is professionally trained to make the child feelcomfortable. Record of such interaction may afford valuable inputs tothe Court in discharge of its duties in parens patriae jurisdiction. Ifduring such interaction issues or aspects concerning welfare of childare noticed, there is no reason why the Court be deprived of access tosuch aspects. As held by this Court in various judgments, the paramountconsideration 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 obligedto give report, inter alia, relating to home environment of the partiesconcerned, their personalities and their relationship with the child and/orchildren in order to assist the Judge in deciding the question ofguardianship of any child or children. The intention is clear that thenormal principle of confidentiality will not apply in matters concerningcustody or guardianship issues and the Court, in the best interest of thechild, must be equipped with all the material touching upon relevant issuesin order to render complete justice. This departure from confidentially isconsistent with the underlined theme of the Act in general and Section12 in particular. Once there is clear exception in favour of categoriesstated therein, principles in any other forms of mediation/conciliation orother modes of Alternative Dispute Resolution regarding confidentialitycannot be imported. The effect of such exception cannot be diluted ornullified. In our view, the High Court considered the matter in correctperspective in paragraphs 17 to 20 of its judgment dated 07.02.2017.

29. There is, however, one aspect which must also be consideredand that is who is the “Counsellor” within the meaning of Rule 8 andwhether the Counsellor who assisted the court in the present mattercomes within the four corners of said provision. It is true that underSection 6 the Counsellors are appointed by the State Government inconsultation with the High Court. It is also true that the Counsellor inthe present case was not the one who was appointed in terms of Section6 but was appointed by committee of the High Court and her assistancehad been requested for in connection with many matters. The orderpassed on 06.05.2016 had indicated that the Mediator could join “any

Aother person” as may be deemed necessary for holistic and effectivemediation. The next order dated 11.05.2016 did mention the name ofthe Counsellor and the fact that the Counsellor had fruitful meetingwith Aditya. The Counsellor, thereafter, interacted with him on08.07.2016 and 11.07.2016, based on which interaction, report wassubmitted on 21.07.2016. The engagement of the Counsellor was thusBin complete knowledge of the parties as well as with express acceptanceof the High Court. It may be that said Counsellor was not appointedunder Section 6 of the Act but if the paramount consideration is thewelfare of the child, there cannot be undue reliance on technicality.As matter of fact, the width of Section 12 of the Act would admit noCsuch restriction. The report given by the Counsellor in the present casecannot, therefore, be eschewed from consideration. It is noteworthythat there was absolutely nothing against the Counsellor and in thejudgment under appeal, the High Court went on to observe in para No.30that the Counsellor was well experienced and known for her commitmentand sincerity to secure settlement which would be satisfactory to all.D

30. We do not, therefore, see any reason why the reports in thepresent case, be kept out of consideration.

31. We, therefore, allow this appeal, set aside the judgment dated11.12.2017 passed by the High Court and restore the earlier judgmentEdated 17.02.2017 passed by the High Court of Delhi. There shall be noorder as to costs.

Nidhi Jain

Appeal allowed.