# PERRY KANSAGRA v. SMRITI MADAN KANSAGRA

- **Citation:** [2019] 3 S.C.R. 991
- **Court:** Supreme Court of India
- **Decided:** 2019-02-15
- **Case number:** Civil Appeal No. 1694 of 2019
- **Bench:** Abhay Manohar Sapre, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/perry-kansagra-v-smriti-madan-kansagra-33614
- **Pages:** 32

## Headnote

Child welfare:
Custody and guardianship matter - Confidentiality in
mediation process - Reports of the mediator as also of the counsellor
concerning the behavior and attitude of the child, if could be used
in court proceedings, when the mediation process has failed - Held:
Complete adherence to confidentiality is absolutely correct in normal
matters where the role of the court is purely of an adjudicator - But
such an approach not essentially 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 - 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, 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 - Order passed by the
High Court holding that the reports of Mediator and Counsellor
were part of confidential proceedings and no party could be
permitted to use the same in any court proceedings or could place
any 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: To
exercise review jurisdiction, the error must be self-evident - 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 - On facts,
the exercise of jurisdiction was not correct - High Court acted as if
it was sitting in appeal over the earlier decision - Even assuming
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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 - Review was not a proper remedy at all - High Court erred
in entertaining the review petition and setting aside the earlier view.
Allowing the appeal, the Court
HELD: 1. 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 was not correct. The exercise undertaken
in the instant case, 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. The
High Court erred in entertaining the review petition and set 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. [Para 16][1008-G, H; 1009-A, B]
2.1 Rule 8 of the Family Courts (Procedure) Rules, 1992
dealing 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 adversarial. In the process, the parties may make
statements which they otherwise would not have made while the
matter was pending

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PERRY KANSAGRA
v.
SMRITI MADAN KANSAGRA
(Civil Appeal No. 1694 of 2019)
FEBRUARY 15, 2019
[ABHAY MANOHAR SAPRE AND
UDAY UMESH LALIT, JJ.]
Child welfare:
Custody and guardianship matter - Confidentiality in
mediation process - Reports of the mediator as also of the counsellor
concerning the behavior and attitude of the child, if could be used
in court proceedings, when the mediation process has failed - Held:
Complete adherence to confidentiality is absolutely correct in normal
matters where the role of the court is purely of an adjudicator - But
such an approach not essentially 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 - 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, 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 - Order passed by the
High Court holding that the reports of Mediator and Counsellor
were part of confidential proceedings and no party could be
permitted to use the same in any court proceedings or could place
any 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: To
exercise review jurisdiction, the error must be self-evident - 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 - On facts,
the exercise of jurisdiction was not correct - High Court acted as if
it was sitting in appeal over the earlier decision - Even assuming
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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 - Review was not a proper remedy at all - High Court erred
in entertaining the review petition and setting aside the earlier view.
Allowing the appeal, the Court
HELD: 1. 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 was not correct. The exercise undertaken
in the instant case, 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. The
High Court erred in entertaining the review petition and set 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. [Para 16][1008-G, H; 1009-A, B]
2.1 Rule 8 of the Family Courts (Procedure) Rules, 1992
dealing 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 adversarial. In the process, the parties may make
statements which they otherwise 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
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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.
[Para 24][1018-G, H; 1019-A-C]
2.2 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 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. [Para 25][1019-D-F]
2.3 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. [Para 26][1019-G, H; 1020-A]
2.4 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
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA
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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. The paramount consideration
ought to be to see what is in the best interest of the child.
[Para 27][1021-A-C]
2.5 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 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. [Para 28][1021-C-F]
2.6 Under Section 6 the Counsellors are appointed by the
State Government in consultation with the High Court. The
Counsellor in the instant 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 'A'-son of the parties. 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. The Counsellor was not appointed under Section 6 of the
Act but if the paramount consideration is the welfare of the child,
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there cannot be undue reliance on a technicality. As a matter of
fact, the width of Section 12 would admit no such restriction. The
report given by the Counsellor in the instant case cannot,
therefore, be eschewed from consideration. There was absolutely
nothing against the Counsellor and in the judgment under appeal,
the High Court went on to observe that the Counsellor was well
experienced and known for her commitment and sincerity to
secure a settlement which would be satisfactory to all. There is
no reason why reports in the instant case be kept out of
consideration. The subsequent judgment passed by the High
Court is set aside and the earlier judgment passed by the High
Court is restored. [Paras 29-31][1021-G, H; 1022-A-E]
Afcons Infrastructure Limited and another v. Cherian
Varkey Construction Company Private Limited and
others (2010) 8 SCC 24 : [2010] 8 SCR 1053 ; Moti
Ram (dead) through Lrs. and another v. Ashok Kumar
and another (2011) 1 SCC 466 : [2010] 14 SCR 809 ;
Govind Prasad Sharma and others v. Doon Valley
Officers Co-operative Housing Society Ltd. (2017) 11
SCALE 231 ; Ashish Ranjan v. Anupma Tandon and
another (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) 9
SCC 596 : [1999] 4 Suppl. SCR 302 ; Parsion Devi
and others v. Sumitri Devi and others (1997) 8 SCC
715 : [1997] 4 Suppl. SCR 470 ; Board of Control
for Cricket in India and another v. Netaji Cricket Club
and others (2005) 4 SCC 741: [2005] 1 SCR 173 -
referred to.
Case Law Reference
[2009] 11 SCR 252
referred to
Para 14
[1999] 4 Suppl. SCR 302
referred to
Para 14
[1997] 4 Suppl. SCR 470
referred to
Para 14
[2005] 1 SCR 173
referred to
Para 15
[2010] 8 SCR 1053
referred to
Para 21
[2010] 14 SCR 809
referred to
Para 22
2017 (11) SCALE 231
referred to
Para 22
[2010] 14 SCR 961
referred to
Para 26
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1694
of 2019.
From the Judgment and Order dated 11.12.2017 of the High Court
of Delhi at New Delhi in Rev. Pet. No. 221 of 2017 in MAT APP (F.C.)
No. 67 of 2016.
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.
The Judgment of the Court was delivered by
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.
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 Petition
dated 06.11.2012 was registered as No.G-53 of 2012 before the Family
Court, Saket, New Delhi.
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5. In terms of visitation orders passed by the High Court, the
appellant along with paternal grandparents were permitted to meet Aditya
for 2 hours on Friday, Saturday and Sunday in the 2nd week of every
month. According to the appellant he flew from Nairobi to New Delhi
every month to meet Aditya along with the paternal grandparents. In
view of the pendency of the guardianship petition, CS (OS) No.1604 of
2012 was disposed of by the High Court on 31.08.2015, leaving the
parties to place their grievances before the Family Court. The
arrangement of visitation was thereafter modified by the Family Court
by its orders dated 09.02.2016 and 09.03.2016.
6. On 18.04.2016, an application was filed by the appellant praying
that the Family Court may direct the Court Counsellor to bring Aditya to
the Court for an in-chamber meeting, which prayer was objected to by
the Respondent. After hearing both sides, the Family Court allowed
said application vide Order dated 04.05.2016, and directed that Aditya
be produced before the Court 07.05.2016. The relevant part of the
Order was as under:-
".....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 9th May, 2016 at 2:30 pm.
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA
[UDAY UMESH LALIT, J.]
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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 61⁄2 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.
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.
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6. As of now, since 9th February, 2016, the child is meeting his
father and grandparents between 10:30 am and 05:00 pm on
Saturday and Sunday in the second week of every month and for
two hours on Friday in the second week of every month. The
visitation is supervised as the court has appointed a Counsellor
who has been directed to remain present throughout the visitation."
9. During the ensuing mediation sessions, the Mediator and the
Counsellor interacted with Aditya. The Counsellor interacted with Aditya
on 08.07.2016 and 11.07.2016. Based upon her interactions with him,
the Counsellor submitted a report dated 21.07.2016 in a sealed cover.
Though, mediation was attempted on many occasions, the parties were
unable to resolve their 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 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.
... ... ...
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"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.
... ... ...
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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 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
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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 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 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
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA
[UDAY UMESH LALIT, J.]
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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.
... ... ... ... ... ... ... ...
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
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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 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.
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PERRY KANSAGRA v. SMRITI MADAN KANSAGRA
[UDAY UMESH LALIT, J.]
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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 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 the
mediator to get holistic settlement between the parties was not
ordered 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. Singhara
Singh AIR 1964 SC 358
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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 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 selfevident 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
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA
[UDAY UMESH LALIT, J.]
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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 reports at the first instance;
(vi) the earlier order being based on a misconception of law, the High
Court was right in exercising review jurisdiction.
13. The issues that arise for our consideration can broadly be put
under two heads:
a) Whether the High Court was justified in exercising review
jurisdiction and setting aside the earlier judgment and
b) Whether the High Court was correct in holding that the reports
of the Mediator and the Counsellor in this case were part of
confidential proceedings and no party could be permitted to use
the same in any court proceedings or could place any reliance on
such reports.
14. As regards the first issue, relying on the decisions of this Court
in Inderchand Jain (dead) through Lrs. vs. Motilal (dead) through
Lrs.2, Ajit Kumar Rath vs. State of Orissa and others3 and Parsion
Devi and others vs. Sumitri Devi and others4, it was submitted by the
appellant that the exercise of review jurisdiction was not warranted at
all. In Inderchand Jain2 it was observed in paras 10, 11 and 33 are as
under:-
"10. It is beyond any doubt or dispute that the review court does
not sit in appeal over its own order. A rehearing of the matter is
impermissible in law. It constitutes an exception to the general
rule that once a judgment is signed or pronounced, it should not be
altered. It is also trite that exercise of inherent jurisdiction is not
invoked for reviewing any order.
11. Review is not appeal in disguise. In Lily Thomas v. Union of
India5 this Court held: (SCC p. 251, para 56)
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"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."
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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 record and would not require any long-drawn
process of reasoning on the points where there may conceivably
be two opinions.
(iii) Power of review may not be exercised on the ground that
the decision was erroneous on merits.
(iv) Power of review can also be exercised for any sufficient
reason which is wide enough to include a misconception of fact
or law by a court or even an advocate.
(v) An application for review may be necessitated by way of
invoking the doctrine actus curiae neminem gravabit."
In our opinion, the principles of law enumerated by it, in the facts
of this case, have wrongly been applied."
In Ajit Kumar Rath3, it was observed:-
"29. In review proceedings, the Tribunal deviated from the
principles laid down above which, we must say, is wholly unjustified
and exhibits a tendency to rewrite a judgment by which the
controversy had been finally decided. This, we are constrained to
PERRY KANSAGRA v.