TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 1968
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....w 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. 5. In terms of visitation orders passed by the High Court, the Appellant along with paternal grandparents were permitted to m....
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....Respondent or any of his relative are not available in India, it shall be open for the learned Mediator to join them by any electronic mode of communication including Skype, Video Conferencing, etc. at the cost of the Respondent. (iv) It shall also be open for the learned Mediator to meet the child at any place, as may be deemed convenient to her, and to arrange any visitation or meetings with the Respondent of the child with the consent of the parties. 8. Thereafter, the matter came up on 11.05.2016. The High Court interacted with Aditya and following observations were made in paras 2 to 6 of its Order: 2. We are also informed that the child has today met with Ms. Sadhana Ramachandran, learned Mediator as well as Ms. Swati Shah, Counsellor in SAMADHAN - Delhi High court Mediation and Conciliation Centre and that the mediation efforts are still underway. 3. The son of the parties - Master Aditya Vikram Kansagra has been produced before us today. We have also had a long conversation with him and are deeply impressed with the maturity of this intelligent 6½ year old child who displays self confidence and a remarkable capacity of expressing himself with clarity. He exhibits....
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....identiality. 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. ... ... ... ... ...... ... 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 uncomfort....
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....ally 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 Counsell....
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....the Court's and is non delegable. The Respondent husband's argument that the referral order permitted the mediator to involve "others" cannot be meant to authorize the exercise of discretion that is solely vested with the Court. Second, the issue of confidentiality is to be examined because the mediator furnished two reports-to the Court, in this case. A mediator's position is unique; undoubtedly she (or he) has professional training and competence to handle issues that involve intense and bitter struggle over matrimonial issues, properties, shared household, custody, (temporary or permanent) and in commercial matters, issues that have monetary and financial impacts. In all cases, parties express their fears, their expectations and their dearly held positions on the strength of the confidence that they repose in the mediator and the mediation process-both of which are reinforced by the absolute cloak of confidentiality. Given these imperatives, mediator's reports, where the process has led to failure, should not record anything at all. Having regard to this position the fact that a mediator in a given case, proposes-for all the best and bona fide reasons, the involv....
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....ertain way, the thing must be done in that way or not at all" [Nazir Ahmed v. King Emperor AIR 1936 PC 243 followed by State of U.P. v. Singhara Singh AIR 1964 SC 358] 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 th....
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.... by a process of reasoning cannot be termed as error apparent on the face of the record; b) the report of the Counsellor was not hit by confidentiality as it merely recorded the interaction of the Counsellor with the child and did not record any information or submission by parties to the lis; that there is a recognized exception to the Rule of confidentiality in child custody matters as the court, in such matters exercises parens patriae jurisdiction. Mr. Saurabh Kirpal, learned Advocate for the Respondent responded -(i) mediation reports are part of confidential proceedings and cannot be permitted to be used in court proceedings for which reliance was placed on various statutory provisions; (ii) the Counsellor was not appointed Under Section 6 of the Family Courts Act; (iii) exception Under Rule 8 (viii) to (xiv) of the Family Court Rules cannot be read as exception to Rules 20 and 23 of the Mediation Rules; (iv) the mediation reports given by the Counsellor-in-mediation did not fall within the exceptions provided in Rule 8; (v) there was no waiver of confidentiality and the Respondent had objected to the use of the reports at the first instance; (vi) the earlier order being bas....
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....ust 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 Rath (1999) 9 SCC 596, it was observed: 29. In review proceedings, the Tribunal deviated from the principles laid down above which, we must say, is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy had been finally decided. This, we are constrained to say, is not the scope of review Under Section 22(3)(f) of the Administrative Tribunals Act, 1985.... Similarly, in Parsion Devi (1997) 8 SCC 715 the principles were summarized as under: 9. Under Order 47 Rule ....
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....ot a proper remedy at all. In our view, the High Court erred in entertaining the review petition and setting aside the earlier view dated 17.02.2017. Having so concluded, the logical course in the circumstances would be to set aside the judgment under appeal and permit the Respondent to challenge the judgment dated 17.02.2017. But such a course would entail further litigation and therefore, we have considered the matter from the stand point of second issue as well. 17. At the outset, we must, therefore, consider various provisions on which reliance was placed by either side. 18. The Family Courts Act, 1984 (hereinafter referred to as the Act) was enacted to provide for the establishment of Family Courts with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. Section 4 deals with "appointment of Judges" and Sub-section (4) states that while selecting persons for appointment as Judges - every endeavor shall be made to ensure that persons committed to the need inter alia to promote the welfare of children and to promote settlement of disputes by conciliation and counselling, are selecte....
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.... such period as it think fit to enable attempts to be made to effect such a settlement. (3) The power conferred by Sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings. 12. Assistance of medical and welfare experts.- In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by this Act. 19. Pursuant to the Rule making power, the High Court of Delhi notified the Family Courts (Procedure) Rules, 1992 (hereinafter referred to as the Rules). Rule 5 deals with Institution of Proceedings while Rule 8 deals with procedure to be followed to arrive at a settlement. Rule 8 is to the following effect. 8. Procedure to be followed to arrive at a settlement (i) In every suit or proceeding the Judge may, at any stage, direct the parties to attend a counsellor with a view to promote concili....
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....cessary. (x) A copy of any report may be supplied to the parties, on such request being made by the parties. (xi) The parties will be entitled to make their submissions on the report. (xii) The counsellor shall not be asked to give evidence in any court in respect of any report made by him. (xiii) Save as aforesaid, the counsellor will submit a brief memorandum to the Judge informing the Judge of the outcome of the proceedings within the time specified by the Judge. (xiv) When the parties arrive at a settlement before the counsellor relating to the dispute or any part thereof, such settlement shall be reduced to writing and shall be signed by the parties and countersigned by the counsellor. The Judge shall pronounce a decree or order in terms thereof unless the Judge considers the terms of the settlement unconscionable or unlawful. (xv) Cohabitation between the parties in the course of conciliation proceedings will not be deemed to be condonation of the matrimonial offence. (xvi) Even after passing of the decree or order the Judge may require the counsellor to supervise the placement of children in custody of a party and to pay surprise visits to the home where the child res....
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.... to a specific condition that it be kept confidential, the Mediator/Conciliator shall not disclose that information to the other party. (b) Receipt or perusal, or preparation of records, reports or other documents by the Mediator/Conciliator, while serving in that capacity shall be confidential and the Mediator/Conciliator shall not be compelled to divulge information regarding those documents nor as to what transpired during the Mediator/Conciliator before any Court or tribunal or any other authority or any person or group of persons. (c) Parties shall maintain confidentiality in respect of events that transpired during the Mediation/Conciliation and shall not rely on or introduce the said information in other proceedings as to: (i) views expressed by a party in the course of the mediation/conciliation proceedings; (ii) documents obtained during the mediation/conciliation which were expressly required to be treated as confidential or other notes, drafts or information given by the parties or the Mediator/Conciliator; (iii) proposals made or views expressed by the Mediator/Conciliator. (iv) admission made by a party in the course of mediation/conciliation proceedings; (v) Th....
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....onduct of Family Mediation Canada in Article 7 extends the principle of confidentiality to the documents prepared specifically for or resulting from mediation. vii) The California Rules of Court, 2017 also provides for confidentiality to be maintained in mediation relating to child custody matters. 21. In Afcons Infrastructure Limited and Anr. v. Cherian Varkey Construction Co. Private Limited and Ors. (2010) 8 SCC 24 while dealing with issues concerning scope and width of Section 89 Code of Civil Procedure and the modalities of Alternative Dispute Resolution mentioned therein, this Court noted various kinds of disputes in respect of which process of Alternative Dispute Resolution has normally been found to be suitable. Para 28 of the decision was as under: 28. All other suits and cases of civil nature in particular the following categories of cases (whether pending in civil courts or other special tribunals/forums) are normally suitable for ADR processes: (i) All cases relating to trade, commerce and contracts, including * disputes arising out of contracts (including all money claims); * disputes relating to specific performance; * disputes between suppliers and customers; ....
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....r should not write anything which was discussed, proposed or done during the mediation proceedings. This is because in mediation, very often, offers, counter offers and proposals are made by the parties but until and unless the parties reach to an agreement signed by them, it will not amount to any concluded contract. If the happenings in the mediation proceedings are disclosed, it will destroy the confidentiality of the mediation process. Similarly, while dealing with a matter arising under the Arbitration and Conciliation Act, 1996, it was held by this Court in Govind Prasad Sharma and Ors. v. Doon Valley Officers Co-operative Housing Society Ltd. AIR 2017 SC 4968: 2017 (11) SCALE 231 that "both the Conciliator and the parties must keep as confidential all matters relating to conciliation proceedings". 23. Reliance was placed by the Respondent on the decisions mentioned above and some statutory provisions including procedural norms in different jurisdictions to submit that there must be absolute confidentiality in respect of any statements made during the course of mediation. The Appellant, however, relies upon Sub-rule (viii) of Rule 8 of the Rules in support of the submission....
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.... is called upon in parens patriae to decide what is in the best interest of the child. In order to reach correct conclusion, the court may interview the child or may depend upon the analysis of an expert who may spend some more time with the child and gauge the upbringing, personality, desires or mental frame of the child and render assistance to the court. It is precisely for this reason that the element of confidentiality which is otherwise the basic foundation of mediation/conciliation, to a certain extent, is departed from in Sub-rule (viii) of Rule 8 of the Rules. 26. If the reports of the Counsellor touching upon the home environment of the parties concerned, their personalities and their relationship with their child or children would assist the court in determining the custody or guardianship issues, any technicality ought not to stand in the way. Sub-rule (viii) of Rule 8 seeks to achieve that purpose and makes such material available for the assessment of the court. The observations of this Court in Ashish Ranjan v. Anupma Tandon and Anr. (2010) 14 SCC 274 have crystallized the approach to be adopted in matters concerning custody or guardianship issues. Paras 18 & 19 of ....
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....comfortable. Record of such interaction may afford valuable inputs to the Court in discharge of its duties in parens patriae jurisdiction. If during such interaction issues or aspects concerning welfare of a child are noticed, there is no reason why the Court be deprived of access to such aspects. As held by this Court in various judgments, the paramount consideration ought to be to see what is in the best interest of the child. 28. In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged to give report, inter alia, relating to home environment of the parties concerned, their personalities and their relationship with the child and/or children in order to 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 exc....