2019 (2) TMI 1968 - SC - Indian Laws

Improper Review Jurisdiction in Child Custody Cases: Mediation Reports Emphasized

Perry Kansagra Versus Smriti Madan Kansagra

Perry Kansagra Versus Smriti Madan Kansagra - (2019) 20 SCC 753 Issues Involved:1. Review Jurisdiction2. Confidentiality of Mediation and Counsellor ReportsIssue-wise Detailed Analysis:1. Review JurisdictionThe first issue addressed was whether the High Court was justified in exercising review jurisdiction and setting aside its earlier judgment dated 17.02.2017. The appellant argued that the High Court exceeded its scope of review jurisdiction, essentially re-evaluating the case as if it were an appeal. Citing precedents such as *Inderchand Jain v. Motilal*, *Ajit Kumar Rath v. State of Orissa*, and *Parison Devi v. Sumitri Devi*, the appellant contended that review jurisdiction should be limited to correcting self-evident errors and should not involve re-hearing the matter or substituting a new view.The respondent, however, relied on the decision in *Board of Control for Cricket in India v. Netaji Cricket Club*, arguing that review was justified due to a misconception of law or fact. The Supreme Court agreed with the appellant, stating that the High Court's exercise of review jurisdiction was improper as it essentially re-evaluated the earlier judgment. The court concluded that the High Court should not have entertained the review petition and set aside the earlier judgment.2. Confidentiality of Mediation and Counsellor ReportsThe second issue was whether the reports of the Mediator and the Counsellor were part of confidential proceedings and could not be used in court. The High Court had initially held that while mediation proceedings are confidential, the reports by a mediator or a child counsellor in child custody matters could be exceptions to this rule, as they provide neutral evaluations to guide the court.The respondent argued that the mediation and counsellor reports should remain confidential, citing various statutory provisions and international norms that mandate confidentiality in mediation processes. The appellant countered that in child custody matters, the court's role as *parens patriae* justifies an exception to confidentiality, as the welfare of the child is paramount.The Supreme Court examined relevant provisions, including Sections 6, 9, and 12 of the Family Courts Act, 1984, and Rule 8 of the Family Courts (Procedure) Rules, 1992. It noted that while confidentiality is crucial in mediation, an exception exists in matters of child custody and guardianship, where the court must consider the best interests of the child. The court emphasized that the counsellor's reports, which provide insights into the child's home environment and relationships, are essential for the court to make informed decisions.The court also addressed the technicality that the counsellor in this case was not appointed under Section 6 of the Family Courts Act but was engaged with the knowledge and acceptance of the parties and the High Court. It concluded that the counsellor's report should not be excluded from consideration, as it serves the paramount interest of the child's welfare.ConclusionThe Supreme Court allowed the appeal, set aside the High Court's judgment dated 11.12.2017, and restored the earlier judgment dated 17.02.2017. The court held that the High Court erred in exercising review jurisdiction and that the reports of the Mediator and the Counsellor could be considered in child custody matters, as they provide valuable insights for determining the best interests of the child.