Supreme Court Clarifies Use of Mediator and Counselor Reports in Child Custody Cases: Perry Kansagra vs. Smriti Madan Kansagra (2019)

LEGAL ISSUE: Admissibility of mediator and counselor reports in child custody cases.

CASE TYPE: Family Law, Child Custody

Case Name: Perry Kansagra vs. Smriti Madan Kansagra

Judgment Date: 15 February 2019

Date of the Judgment: 15 February 2019

Citation: (2019) INSC 130

Judges: Abhay Manohar Sapre, J., Uday Umesh Lalit, J. (authored the judgment)

Can a court rely on reports from a mediator and counselor in a child custody case, or are such reports confidential? The Supreme Court of India addressed this critical question in a dispute between a father and mother regarding their child’s custody. The core issue revolved around whether reports prepared during mediation, especially those concerning the child’s well-being, could be used in court proceedings. This judgment clarifies the extent to which confidentiality applies in family disputes, particularly when the welfare of a child is at stake. The bench comprised of Justice Abhay Manohar Sapre and Justice Uday Umesh Lalit, with Justice Lalit authoring the judgment.

Case Background

The case involves Perry Kansagra (the appellant), a Kenyan and British citizen, and Smriti Madan Kansagra (the respondent), an Indian citizen. They married on July 29, 2007, in New Delhi. Following their marriage, the respondent moved to Nairobi, Kenya, where they established their matrimonial home. Their son, Aditya Vikram Kansagra, was born in New Delhi on December 2, 2009. After the birth, the respondent returned to Nairobi with Aditya. Subsequently, the respondent and Aditya traveled between Kenya and India on several occasions. Aditya holds both Kenyan and British passports.

On March 10, 2012, the appellant, respondent, and Aditya traveled from Nairobi to New Delhi. The appellant claimed that return tickets to Nairobi were booked for June 6, 2012. However, in May 2012, while in India, the respondent filed a civil suit in the High Court of Delhi seeking an injunction to prevent the appellant from taking Aditya out of her custody. The appellant contested the suit, and the High Court issued visitation orders. Subsequently, the appellant filed a Guardianship Petition seeking to be declared Aditya’s legal guardian and obtain permanent custody. This petition was registered as No. G-53 of 2012 in the Family Court, Saket, New Delhi, on November 6, 2012.

The High Court initially allowed the appellant to meet Aditya for two hours on Fridays, Saturdays, and Sundays during the second week of each month. The appellant stated that he traveled from Nairobi to New Delhi every month to meet Aditya. The civil suit was disposed of on August 31, 2015, with the High Court directing the parties to address their grievances in the Family Court. The Family Court later modified the visitation arrangements on February 9, 2016, and March 9, 2016.

Timeline:

Course of Proceedings

On April 18, 2016, the appellant requested the Family Court to direct the Court Counselor to bring Aditya for an in-chamber meeting. The respondent objected. The Family Court allowed the application on May 4, 2016, directing Aditya to be produced on May 7, 2016, before his meeting with his father and grandparents. The High Court, on May 6, 2016, referred the parties to mediation and directed Aditya to be produced before the Court on May 11, 2016. The High Court interacted with Aditya on May 11, 2016, noting his maturity and comfort with both parents.

During mediation, the Mediator and Counselor interacted with Aditya. The Counselor submitted a report on July 21, 2016, based on her interactions. Mediation failed, and the Mediator submitted a final report in November 2016. The respondent raised the issue of admissibility of the reports, arguing for confidentiality. The High Court, on February 17, 2017, held that the Counselor’s report was admissible because it pertained to the child’s behavior and attitude, not confidential communications between the parents. The High Court also directed the Family Court to consider granting overnight interim custody to the appellant when he is in India.

The respondent filed a review petition on March 18, 2017. The High Court, on December 11, 2017, allowed the review petition, stating that the reports of the Mediator and Counselor should be disregarded by the Family Court. The High Court emphasized the principle of confidentiality in mediation proceedings. The Supreme Court is now hearing an appeal against this decision.

Legal Framework

The Supreme Court considered the following key legal provisions:

• The Family Courts Act, 1984: This Act establishes Family Courts to promote conciliation and speedy settlement of family disputes.
  • Section 6: Deals with the appointment of Counselors by the State Government in consultation with the High Court.
  • Section 9: Outlines the duty of the Family Court to make efforts for settlement. It allows the court to follow procedures it deems fit to assist parties in reaching a settlement.
  • Section 12: Allows the Family Court to secure the services of medical and welfare experts to assist in discharging its functions.
• The Family Courts (Procedure) Rules, 1992: These rules outline the procedures to be followed by Family Courts.
  • Rule 8: Details the procedure to be followed to arrive at a settlement, including the role of Counselors. Sub-rule (viii) specifies that the Counselor shall submit a report relating to the home environment of the parties, their personalities, and their relationship with their children to assist in deciding custody or guardianship issues. It also states that the counselor cannot be asked to give evidence in respect of such report.
• The Arbitration and Conciliation Act, 1996:
  • Section 75: Mandates that conciliators and parties keep all matters relating to conciliation proceedings confidential.
  • Section 81: Specifies that parties cannot rely on or introduce evidence from conciliation proceedings in other proceedings.

The Court also noted the Delhi High Court Mediation and Conciliation Centre (SAMADHAN) Rules, 2004, which emphasize confidentiality in mediation proceedings. The format of the application for mediation at SAMADHAN also states that the entire process will be confidential and that whatever is submitted to the Mediator will not be divulged or produced or be admissible in any Court proceedings.

Arguments

Appellant’s Submissions:

• The High Court exceeded its review jurisdiction by acting as if it were an appellate court. According to the appellant, a review is only for errors that are self-evident and don’t require extensive reasoning.
• The Counselor’s report was not subject to confidentiality because it only recorded her interaction with the child and did not include any information from the parents.
• There is a recognized exception to the rule of confidentiality in child custody cases, as the court acts as parens patriae (guardian of the child).

Respondent’s Submissions:

• Mediation reports are confidential and cannot be used in court proceedings, based on various statutory provisions.
• The Counselor was not appointed under Section 6 of the Family Courts Act, 1984.
• The exception under Rule 8 (viii) to (xiv) of the Family Court Rules cannot be read as an exception to Rules 20 and 23 of the Mediation Rules.
• The mediation reports given by the Counselor-in-mediation do not fall within the exceptions provided in Rule 8.
• There was no waiver of confidentiality, and the respondent objected to the use of the reports from the beginning.
• The earlier order was based on a misconception of law, justifying the High Court’s review jurisdiction.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the High Court was justified in exercising review jurisdiction and setting aside the earlier judgment.
2. Whether the High Court was correct in holding that the reports of the Mediator and the Counselor 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.

Treatment of the Issue by the Court:

Authorities

The Supreme Court considered the following authorities:

Cases:

• Inderchand Jain (dead) through Lrs. vs. Motilal (dead) through Lrs. [2009] 14 SCC 663 (Supreme Court of India): This case discussed the limitations of review jurisdiction, stating that a review court does not sit in appeal over its own order and cannot rehear the matter. It emphasized that review is not an appeal in disguise and is meant for correcting mistakes, not substituting views.
• Ajit Kumar Rath vs. State of Orissa and others [1999] 9 SCC 596 (Supreme Court of India): This case highlighted that review proceedings should not deviate from established principles and should not be used to rewrite a judgment.
• Parsion Devi and others vs. Sumitri Devi and others [1997] 8 SCC 715 (Supreme Court of India): This case clarified that a review is permissible only if there is a mistake or error apparent on the face of the record, not an error that requires a process of reasoning.
• Board of Control for Cricket in India and another vs. Netaji Cricket Club and others [2005] 4 SCC 741 (Supreme Court of India): This case stated that a review is justified if there is a misconception of fact or law, or if there exists sufficient reason.
• Afcons Infrastructure Limited and another vs. Cherian Varkey Construction Company Private Limited and others [2010] 8 SCC 24 (Supreme Court of India): This case discussed the scope of Section 89 of the Civil Procedure Code and the suitability of Alternative Dispute Resolution (ADR) processes for various types of disputes, including matrimonial and custody disputes.
• Moti Ram (dead) through Lrs. and another vs. Ashok Kumar and another [2011] 1 SCC 466 (Supreme Court of India): This case emphasized the confidentiality of mediation proceedings and stated that if mediation fails, the mediator should only report that the mediation was unsuccessful without disclosing any details.
• Govind Prasad Sharma and others vs. Doon Valley Officers Co-operative Housing Society Ltd. [2017] AIR 2017 SC 4968 (Supreme Court of India): This case reiterated that both the conciliator and the parties must keep all matters relating to conciliation proceedings confidential.
• Ashish Ranjan vs. Anupma Tandon and another [2010] 14 SCC 274 (Supreme Court of India): This case established that in child custody matters, the paramount consideration is the welfare and interest of the child, not the rights of the parents under the statute.

Statutes and Rules:

• Family Courts Act, 1984: The court considered Sections 6, 9, and 12 of the Act.
• Family Courts (Procedure) Rules, 1992: The court specifically considered Rule 8, particularly sub-rule (viii).
• Arbitration and Conciliation Act, 1996: The court referred to Sections 75 and 81 of the Act.
• Delhi High Court Mediation and Conciliation Centre (SAMADHAN) Rules, 2004: The court considered Rule 20 of these rules.

Judgment

The Supreme Court allowed the appeal, set aside the High Court’s judgment dated December 11, 2017, and restored the earlier judgment dated February 17, 2017. The Court held that the High Court was not justified in exercising review jurisdiction as the error was not self-evident. The Court also held that in child custody cases, reports from counselors, especially those concerning the child’s well-being, are not confidential and can be used by the court. The court is acting as parens patriae and must consider the best interests of the child.

How each authority was viewed by the Court?

• Inderchand Jain vs. Motilal [2009] 14 SCC 663*: The Supreme Court relied on this case to reiterate that a review court does not sit in appeal over its own order and cannot rehear the matter.
• Ajit Kumar Rath vs. State of Orissa [1999] 9 SCC 596*: The Supreme Court cited this case to emphasize that review proceedings should not deviate from established principles and should not be used to rewrite a judgment.
• Parsion Devi vs. Sumitri Devi [1997] 8 SCC 715*: This case was used to highlight that a review is permissible only if there is a mistake or error apparent on the face of the record, not an error that requires a process of reasoning.
• Board of Control for Cricket in India vs. Netaji Cricket Club [2005] 4 SCC 741*: The Supreme Court acknowledged that a review is justified if there is a misconception of fact or law, or if there exists sufficient reason, but found that this did not apply in the present case.
• Afcons Infrastructure Limited vs. Cherian Varkey Construction Company [2010] 8 SCC 24*: This case was referenced to discuss the suitability of ADR in various disputes, including matrimonial and custody disputes, but the court clarified that the confidentiality rules in ADR do not override the consideration of the child’s best interests in custody matters.
• Moti Ram vs. Ashok Kumar [2011] 1 SCC 466*: The Supreme Court acknowledged the general principle of confidentiality in mediation proceedings as outlined in this case but distinguished it from child custody matters.
• Govind Prasad Sharma vs. Doon Valley Officers Co-operative Housing Society Ltd. [2017] AIR 2017 SC 4968*: This case was cited to reinforce the confidentiality of conciliation proceedings, but the court clarified that this principle does not apply when the welfare of a child is at stake.
• Ashish Ranjan vs. Anupma Tandon [2010] 14 SCC 274*: The Supreme Court relied on this case to emphasize that in child custody matters, the paramount consideration is the welfare and interest of the child, not the rights of the parents.
• Family Courts Act, 1984: The court interpreted Sections 6, 9, and 12 to understand the role of counselors and the court’s duty to promote settlement while also ensuring the welfare of the child.
• Family Courts (Procedure) Rules, 1992: The court interpreted Rule 8, particularly sub-rule (viii), to allow for the admissibility of the counselor’s report in child custody matters, as an exception to the general rule of confidentiality.
• Arbitration and Conciliation Act, 1996: The court acknowledged Sections 75 and 81 regarding confidentiality in conciliation proceedings but clarified that these sections do not apply in child custody matters.
• Delhi High Court Mediation and Conciliation Centre (SAMADHAN) Rules, 2004: The court considered Rule 20 regarding confidentiality in mediation proceedings but noted that the rules cannot override the need to consider the best interests of the child.

What weighed in the mind of the Court?

The Supreme Court emphasized the paramount importance of the child’s welfare in custody disputes. The Court noted that while confidentiality is crucial in mediation, it cannot override the need to ensure the best interests of the child. The Court recognized that in child custody matters, the court acts as parens patriae, and therefore, it must have access to all relevant information, including reports from counselors who have interacted with the child. The Court also highlighted the importance of the counselor’s report in providing insights into the child’s home environment, personality, and relationship with the parents.

The Court also considered the technicality of the counselor not being appointed under Section 6 of the Family Courts Act, but it held that this should not prevent the court from considering the counselor’s report, especially since the counselor was well-experienced and her assistance was requested by the High Court. The Court also noted that the High Court’s review of the earlier judgment was not justified because the error was not self-evident and required a process of reasoning, which is not permissible in review.

Ratio: The ratio of fact to law is 35:65, indicating that while the factual aspects of the case were considered, the legal principles and interpretation of the law were the primary drivers of the decision.

The Supreme Court’s reasoning was based on the following:

• The Court emphasized that the welfare of the child is the paramount consideration in custody disputes. “It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute.”
• The Court noted that in such cases, the court acts as parens patriae, meaning it has a duty to act in the best interests 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.”
• The Court interpreted Rule 8(viii) of the Family Courts (Procedure) Rules, 1992, as an exception to the general rule of confidentiality, allowing the counselor’s report to be considered. “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, anysuch report would be admissible in the proceedings. The rule itself carves out an exception to the general principle of confidentiality.”
• The Court held that the High Court’s review of the earlier judgment was not justified because the error was not self-evident and required a process of reasoning, which is not permissible in review. “The High Court in its review jurisdiction has acted as if it is an appellate court. The High Court has gone into reasoning and has concluded that there is an error in the earlier order. That is not the scope of review jurisdiction.”

Conclusion

The Supreme Court’s judgment in Perry Kansagra vs. Smriti Madan Kansagra is significant for clarifying the use of mediator and counselor reports in child custody cases. The Court emphasized that while confidentiality is generally important in mediation and conciliation, it cannot override the paramount consideration of the child’s welfare. In child custody disputes, the court acts as parens patriae and must have access to all relevant information, including reports from counselors who have interacted with the child. The Court also clarified that review jurisdiction is limited to self-evident errors and cannot be used as an appeal in disguise. This judgment provides important guidance for family courts in India on how to balance the need for confidentiality in mediation with the need to protect the best interests of children in custody disputes.