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 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 f ounded 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 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 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, 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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