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Whether Reports of Mediator / Counsellor were Confidential in Custody or Guardianship Cases ?

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1694 OF 2019
(@ SPECIAL LEAVE PETITION (CIVIL) NO.9267 OF 2018)

PERRY KANSAGRA ……Appellant

VERSUS

SMRITI MADAN KANSAGRA ..…. Respondent

JUDGMENT
Uday Umesh Lalit, J.

1. Leave granted.

2. This seductiveness hurdles a final Judgment and Order antiquated 11.12.2017 upheld by a High Court of Delhi permitting Review Petition No.221 of 2017 elite by a respondent opposite a visualisation and sequence antiquated 17.02.2017 upheld by a 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 during New Delhi. After marriage, a Respondent shifted to Nairobi, Kenya and staid into her matrimonial home with a appellant. A son, named Aditya Vikram Kansagra was innate to a integrate on 02.12.2019 during New Delhi. After delivery, a respondent returned behind to Nairobi along with Aditya. Thereafter, a Respondent and Aditya trafficked from Kenya to India on few occasions. Aditya binds Kenyan as good as British passport.

4. The appellant, Respondent and Aditya came from Nairobi to New Delhi on 10.03.2012. According to a appellant, a lapse tickets for transport behind to Nairobi were requisitioned for 06.06.2012. While in India, in May 2012, a Respondent filed a polite fit purebred as CS (OS) No.1604 of 2012 before a High Court of Delhi praying inter alia for an claim to curb a appellant from stealing Aditya from a control of a Respondent. Upon notice being issued, a appellant contested a fit in that visitation orders were upheld by a High Court from time to time. The appellant afterward filed Guardianship Petition praying inter alia that he be announced a authorised Guardian of Aditya and be given his permanent custody. The Guardianship Petition antiquated 06.11.2012 was purebred as No.G-53 of 2012 before a Family Court, Saket, New Delhi.

5. In terms of visitation orders upheld by a High Court, a appellant along with consanguine grandparents were accessible to accommodate Aditya for 2 hours on Friday, Saturday and Sunday in a 2nd week of any month. According to a appellant he flew from Nairobi to New Delhi any month to accommodate Aditya along with a consanguine grandparents. In viewpoint of a pendency of a safekeeping petition, CS (OS) No.1604 of 2012 was likely of by a High Court on 31.08.2015, withdrawal a parties to place their grievances before a Family Court. The arrangement of visitation was afterward mutated by a Family Court by a orders antiquated 09.02.2016 and 09.03.2016.

6. On 18.04.2016, an focus was filed by a appellant praying that a Family Court cunning ensue a Court Counsellor to pierce Aditya to a Court for an in-chamber meeting, that ask was objected to by a Respondent.

After conference both sides, a Family Court authorised conspicuous focus vide Order antiquated 04.05.2016, and destined that Aditya be constructed before a Court 07.05.2016. The applicable partial of a Order was as under:- “…..The probity is parens patriae in such proceedings. Petitioner’s visitation with a child is anyway scheduled for 07.05.2016. Let a child be constructed before a probity during 10 am on 07.05.2016 before he goes for assembly with his father and grand parents.”

7. The Respondent being aggrieved, filed MAT App. (FC) No.67 of 2016 before a High Court. On 06.05.2016, after conference both sides, Division Bench of a High Court referred a parties to intervention and also destined that Aditya be constructed before a Court on 11.05.2016. Paragraphs 7 and 9 of conspicuous Order were :-

“7. During a communication with a parties, a enterprise is voiced by a parties to make one some-more try for a negotiated allotment of all disputes between a parties by possibility to mediation. The kin of a respondent are also benefaction and have assimilated a record before us. They have also submitted that they would like to make an try for a negotiated allotment for all disputes between a parties.
……………
9. With a establish of parties, it is destined as follows:
(i) The parties shall seem before Ms. Sadhana Ramchandran, schooled Mediator in SAMADHAN-
Delhi High Court Mediation and Conciliation Centre on 9th May, 2016 during 2:30 pm.
(ii) It shall be open for a schooled Mediator to join any other chairman or relations of a parties, as cunning be deemed necessary, for a holistic and effective mediation.

(iii) In case, a respondent or any of his relations are not accessible in India, it shall be open for a schooled Mediator to join them by any electronic mode of communication including Skype, Video Conferencing, etc. during a cost of a respondent.

(iv) It shall also be open for a schooled Mediator to accommodate a child during any place, as cunning be deemed accessible to her, and to arrange any visitation or meetings with a respondent of a child with a establish of a parties.”

8. Thereafter, a matter came adult on 11.05.2016. The High Court interacted with Aditya and following observations were finished in paras 2 to 6 of a Order :-

“2. We are also sensitive that a child has currently met with Ms. Sadhana Ramachandran, schooled Mediator as good as Ms. Swati Shah, Counsellor in SAMADHAN – Delhi High probity Mediation and Conciliation Centre and that a intervention efforts are still underway.
3. The son of a parties – Master Aditya Vikram Kansagra has been constructed before us today. We have also had a prolonged examination with him and are deeply tender with a majority of this intelligent 6½ year aged child who displays self certainty and a conspicuous ability of expressing himself with clarity. He exhibits no pointer of difficulty or excitability during all.

4. We also note that a child was gentle in his communication with his father and grandparents in court. The child has voiced complacency during his visitations with his father and grandparents. He unreservedly staid that he looks brazen to a same. Master Aditya Vikram Kansagra is also means to brand other kin in Kenya and enthusiastically refers to his practice in that country. It is apparent that a child has connected good with them.

5. We contingency note that a child is during a same time deeply trustworthy to his mom and Nani. His temperament and celebrity clearly bear a stamp of a excellent upbringing being given to him by a appellant and her mother.

6. As of now, given 9th February, 2016, a child is assembly his father and grandparents between 10:30 am and 05:00 pm on Saturday and Sunday in a second week of any month and for dual hours on Friday in a second week of any month. The visitation is supervised as a probity has allocated a Counsellor who has been destined to sojourn benefaction via a visitation.”

9. During a indirect intervention sessions, a Mediator and a Counsellor interacted with Aditya. The Counsellor interacted with Aditya on 08.07.2016 and 11.07.2016. Based on her interactions with him, a Counsellor submitted a news antiquated 21.07.2016 in a hermetic cover. Though, intervention was attempted on many occasions, a parties were incompetent to solve their disputes and differences and an halt news was submitted by a Mediator on 22.07.2016. On 11.08.2016, a hermetic cover containing a news of a Counsellor was non-stop and a news was taken on record. Copies of a news of a Counsellor were given to a parties. In an focus changed a successive day, i.e. on 12.08.2016, a appellant relied on a news of a Counsellor antiquated 21.07.2016 and prayed for accede to pronounce to Aditya on telephone. While hostile a prayer, a respondent objected to such faith on a belligerent of confidentiality. The Mediator afterward filed final news in November, 2016 saying failure.

10. Thereafter a matter came adult for final arguments before another Division Bench of a High Court. The Respondent lifted a emanate of admissibility of a reports submitted by a Mediator and Counsellor contending that a reports could not be relied on in viewpoint of component of confidentiality. The High Court dealt with conspicuous submissions and while disposing of a appeal, by a visualisation antiquated 17.02.2017 celebrated as under:-

“10. The intervention has failed.
11. But we are called on to confirm an critical doubt concerning confidentiality of a intervention routine for a reason on Oct 11, 2016 a news was perceived from a Mediator that was taken on record and duplicate given to both parties. The news of a Mediator refers to a child solicitor being endangered who had also given an eccentric news that was also taken on record.

…… … ………… “13. The news of a child solicitor is to a outcome that a child was normal and in annoy of being happy with his mom he seems to treasure his father and affectionately remembers his residence in Kenya; about that residence he preferred articulate with a counsellor. The adore and a bond of a child with a father was commended as a certain opinion of a appellant who, apparently was not torturing a child. The child showed his love, adore and comfort for a appellant, evidenced by he fondly and happily articulate about a new vacation in Kashmir with his mother. The child was not worried with a thought of creation a outing to Kenya.

…… … …………

17. There can be no argue with a tender that intervention record are trusted record and anything disclosed, discussed or due by a parties before a go-between can't be recorded, most reduction divulged. The reason being that really mostly during mediations, offers, opposite offers and proposals are made. The ethos of intervention would bar avowal of specified communications and papers compared with mediation. Parties are rapid during intervention to rivet in honest discussions as regards their problems and in matrimonial disputes these honest discussions many a time give arise to a improved bargain between a couple. Such an ensue encourages a forget and pardon opinion to be shaped by a parties. If possibly associate is underneath an confinement that a well- meant deliberations cunning subsequently be used opposite them it would bushel an above-board caring of their problems. The atmosphere of mutual trust during intervention warrants finish confidentiality.

18. But where a range of intervention is a fortitude of a child parenting issue, news by a go-between or a child solicitor concerning a function and opinion of a child would not tumble within a bar of confidentiality for a reason no information common by a integrate is being brought on record. The charge of Section 12 of a Family Courts Act, 1984 can't be mislaid steer of.

19. In a benefaction case, what has been taken on record during intervention record is a news of a Child Counsellor and a mediator, that we find are reports assenting a good opinion of both kin who, distinct many other couples, are not regulating a child as a apparatus to take punish opposite a other. As remarkable above, a communication by a before Division Bench with a child has been accessible in a sequence antiquated May 11, 2016 i.e. a child being equally gentle with both kin and carrying a enterprise to spend peculiarity time with not usually his mom and kin from a maternal side though even with a father and kin from a consanguine side. Such reports are a neutral research of consultant opinion to a Court to beam a Court as to what orders need to be upheld in a best seductiveness of a child. These reports are not trusted communications of a parties.

20. Having answered a emanate that incidentally arose, and observant that differently a seductiveness has been rendered infructuous, we cancel serve record in a seductiveness inasmuch as no orders are now fitting to be upheld in a appeal.

21. The schooled Judge Family Court would cruise extenuation over night halt control to a respondent when he is in India by commanding such terms and conditions that would safeguard that a child is not private from a domain of India. The emanate concerning a appellant claiming that she has mislaid a Kenyan pass of a child and a uninformed pass being released in a name of a child would also be looked into by a schooled Judge, Family Court.”

11. On 18.03.2017, a respondent filed Review Petition No.221 of 2017 doubt a visualisation antiquated 17.02.2017. The Review Petition was authorised by nonetheless another Division Bench of High Court by visualisation and sequence antiquated 11.12.2017. After posing a question, “..whether a Counsellor’s news furnished in a march of intervention record or a Mediator’s news in box of mediation, when a routine fails, can be used by possibly of a parties during trial”, a High Court resolved that a reports of a Mediator and a Counsellor “..shall be overlooked by a family court, when it deduction to confirm a merits of a case”. During a march of a discussion, a High Court remarkable Delhi High Court Mediation and Conciliation Rules, 2004; Format of focus of SAMADHAN (the Delhi High Court Mediation and Conciliation Centre); Conciliation manners of UNCITRAL; Sections 75 and 81 of a Arbitration and Conciliation Act, 1996; Mediation Training Manual released by a Mediation and Conciliation Project Committee, Supreme Court of India and Chartered Institute of Arbitrator’s Rules mandating confidentiality in matters per to intervention and celebrated as under:-

“21. There can, be no argue with a tender that a intervention record are trusted and anything disclosed, discussed or due before a go-between need not be recorded, most reduction emitted and that if it is finished there would always be an confinement that a contention cunning be used opposite a parties and it would bushel a whole process. The atmosphere of mutual trust warrants finish confidentiality and a same is in fact remarkable in a categorical judgment. The postulant is depressed by a after partial that annals “but where a range of a intervention is fortitude of child parenting issue, a news concerning a function and opinion of a child would not tumble within a bar of confidentiality”. To a mind, this is opposite a component of intervention and charts a march of a sleazy slope, as this visualisation would penance discuss.
22. No exceptions are finished in a intervention manners possibly in a laws or in several jurisdictions mentioned above to a comprehensive sequence of confidentiality. This Court hold a charge of Section 12 of a Family Courts Act, 1984 can't be mislaid steer of; nonetheless a emanate is possibly a sequence antiquated May 6, 2016 was upheld quite underneath Section 12 of a Family Courts Act, 1984 or it was simply to foster intervention of disputes between a kin of a child.
……………………

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25. Section 12 of a 1984 Act, empowers a Family Court with a option to impute a parties to a counsellor, Undoubtedly, that energy also extends to a appellate court. However, this box has 3 rather surprising features: one that a Court never certified a go-between to practice energy that is vested statutorily with it. The option to engage or not to engage a solicitor is a Court’s and is non delegable. The respondent husband’s justification that a discuss sequence accessible a go-between to engage “others” can't be meant to sanction a practice of option that is usually vested with a Court. Second, a emanate of confidentiality is to be examined since a go-between furnished dual reports-to a Court, in this case. A mediator’s position is unique; positively she (or he) has veteran training and cunning to hoop issues that engage heated and sour onslaught over matrimonial issues, properties, common household, custody, (temporary or permanent) and in blurb matters, issues that have financial and financial impacts. In all cases, parties demonstrate their fears, their expectations and their dearly hold positions on a strength of a certainty that they repose in a go-between and a intervention process- both of that are reinforced by a comprehensive costume of confidentiality. Given these imperatives, mediator’s reports, where a routine has led to failure, should not record anything during all. Having courtesy to this position a fact that a go-between in a given case, proposes-for all a best and bona fide reasons, a impasse of a counsellor, does not in any demeanour criticise or take divided a Court’s solitary energy to practice it. In a eventuality of a parties’ agreeing, to such a course, they have to be asked to ensue a Court, for suitable orders: a Court would afterwards impute them to a counsellor. The doubt of a kind of news to be submitted to a Court and possibly it would be a partial of a record would be famous during a march of a proceeding. In a benefaction case, a parties merely consented. There is zero to uncover that a parties were wakeful that a mediator’s report, with courtesy to not merely what transpired, though with honour to her reflections, would be given to a court; nor was there anything to uncover that they were wakeful – when they consented to a impasse of a solicitor that her news would be given to a court. The third surprising underline is that in during slightest dual sittings with a counsellor, a go-between was present. This “joint” pierce is, in a opinion of a Court, unacceptable. It can lead to unattractive consequences, generally if a go-between and solicitor ensue to concede their reports (as they did in this case). A reading of both reports in a benefaction case, paints a transparent design to a reader strongly revealing of a trustworthy march of movement or conclusion. It is this, a energy of suggestion, that parties are guaranteed insurance from, when they establish to mediation. Imagine if there were to be a probability of dissimilarity of opinion. Where would that lead? Aside from adding to contentiousness, a Court too would be left confounded.

……………………

29. The observations finished in a categorical visualisation antiquated Feb 17, 2017 in outcome would assent a mediators to practice de facto, or in default, a disdainful powers of a Court underneath Section 12 of a 1984 Act, that are non delegable. There is no doubt of validation of such action, by a after sequence of a Court. The risk of this would be that Courts can good pull on such irregularly constructed material, to arrive during conclusions. The requirement of Section 12 also has to be accepted as a charge of law that usually a Court and no other physique can impute a parties to counseling. The tender that something that a law mandates to be achieved in one demeanour and no other demeanour “where a energy is given to do a certain thing in a certain way, a thing contingency be finished in that proceed or not during all”1 relates with full force. The sequence antiquated May 06, 2016 in this box merely referred a parties to a go-between and forged out a march and ambit of mediation. The news of a solicitor was never sought by a Court, and nonetheless was treated to be one underneath Section 12 of a Act of 1984. Had a Court invoked Section 12 of a Family Courts Act, 1984 it would have clearly spelt out and accessible that while doing so; and in that clarity there ought to have been a transparent bid of Section 12. The deficiency of such anxiety indispensably meant that a anxiety to “others’ meant usually those connected with a dispute, such as family members of possibly a father or a wife, whose appearance was to foster gentle brawl resolution, not eccentric research by a solicitor in an unguided demeanour to be incorporated or annexed to a intervention report.

30. If such a position is authorised as in this case, intervention cunning afterwards good be used as a forum for entertainment consultant opinion that would afterwards enter a categorical record of a case. The charge of Section 89 of a Civil Procedure Code, 1908, examination with Rule 20 and Rule 21 of a Delhi High Court Mediation and Conciliation Rules, 2004 provides for confidentiality and non-disclosure of information common with a go-between and during a record of mediation. In a benefaction case, a assistance of a solicitor sought by Nazir Ahmed v King Emperor AIR 1936 PC 243 followed by State of UP v. Singhara Singh AIR 1964 SC 358 a go-between to get holistic allotment between a parties was not systematic in a demeanour visualized by Section 12 of a Family Courts Act, 1984.

Consequently, conjunction a news of a go-between nor of a solicitor could have been authorised to be exhibited. They are discordant to a charge of beliefs ruling a intervention – they criticise celebration liberty and choice; besides, they clearly violate Section 75 of a Arbitration and Conciliation Act. The observations in a visualisation antiquated Feb 17, 2017 to a border it annals that “the reports of a go-between as also of a solicitor concerning a function and opinion of a child, generally when a intervention routine has catastrophic would not tumble within a bar of confidentiality and hence can't be used in any proceeding…… Such reports are a neutral research of consultant opinion to a Court to beam a Court as to what orders need to be upheld in a best seductiveness of a child. These reports are not trusted communications of a parties” and figure a ubiquitous difference to intervention confidentiality in child control matters and disputes for that a Family Court can find a assistance of a counsellor, underneath Section 12 of a 1984 Act, are hereby recalled. We dive to supplement that this visualisation is not a thoughtfulness on a go-between whose unstinted lane record is famous to all, or a try of a counsellor, who too is really gifted in her field. Their joining and frankness to secure a allotment acceptable to all, and a intervention routine in general, is not doubted; this visualisation should in no proceed moderate that fervour and integrity that they have displayed.”

12. The viewpoint taken by a High Court in permitting a examination is currently underneath challenge. Mr. Anunya Mehta, schooled Advocate for a appellant submitted – (a) a High Court exceeded a range of examination office as if it was sitting in seductiveness over a progressing judgment; that in terms of law laid down by this probity an blunder that is not obvious and that is compulsory to be rescued by a routine of logic can't be termed as blunder apparent on a face of a record; b) a news of a Counsellor was not strike by confidentiality as it merely accessible a communication of a Counsellor with a child and did not record any information or acquiescence by parties to a lis;

that there is a famous difference to a sequence of confidentiality in child control matters as a court, in such matters exercises parens patriae jurisdiction.

Mr. Saurabh Kirpal, schooled Advocate for a respondent responded –

(i) intervention reports are partial of trusted record and can't be accessible to be used in probity record for that faith was placed on several orthodox provisions; (ii) a Counsellor was not allocated underneath Section 6 of a Family Courts Act; (iii) difference underneath Rule 8 (viii) to (xiv) of a Family Court Rules can't be examination as difference to Rules 20 and 23 of a Mediation Rules; (iv) a intervention reports given by a Counsellor-in-

mediation did not tumble within a exceptions supposing in sequence 8; (v) there was no waiver of confidentiality and a respondent had objected to a use of a reports during a initial instance; (vi) a progressing sequence being formed on a myth of law, a High Court was right in sportive examination jurisdiction.

13. The issues that arise for a caring can broadly be put underneath dual heads:

a) Whether a High Court was fit in sportive examination office and sourroundings aside a progressing visualisation and
b) Whether a High Court was scold in holding that a reports of a Mediator and a Counsellor in this box were partial of trusted record and no celebration could be accessible to use a same in any probity record or could place any faith on such reports.
14. As regards a initial issue, relying on a decisions of this Court in Inderchand Jain (dead) by Lrs. vs. Motilal (dead) by Lrs. 2, Ajit Kumar Rath vs. State of Orissa and others 3 and Parsion Devi and others vs. Sumitri Devi and others4, it was submitted by a appellant that a practice of examination office was not fitting during all. In Inderchand Jain2 it was celebrated in paras 10, 11 and 33 are as under:-

(2009) 14 SCC 663 (1999) 9 SCC 596 (1997) 8 SCC 715 “10. It is over any doubt or brawl that a examination probity does not lay in seductiveness over a possess order. A rehearing of a matter is impermissible in law. It constitutes an difference to a ubiquitous sequence that once a visualisation is sealed or pronounced, it should not be altered. It is also hackneyed that practice of fundamental office is not invoked for reviewing any order.

11. Review is not seductiveness in disguise. In Lily Thomas v. Union of India5 this Court held: (SCC p. 251, para

56) “56. It follows, therefore, that a energy of examination can be exercised for improvement of a mistake though not to surrogate a view. Such powers can be exercised within a boundary of a government traffic with a practice of power. The examination can't be treated like an seductiveness in disguise.” …………………………

33. The High Court had righteously beheld a examination office of a court, that is as under: “The law on a subject—exercise of energy of review, as propounded by a Apex Court and several other High Courts cunning be epitomised as hereunder:

(i) Review record are not by proceed of seductiveness and have to be particularly cramped to a range and ambit of Order 47 Rule 1 CPC.
(ii) Power of examination cunning be exercised when some mistake or blunder apparent on a fact of record is found. But blunder on a face of record contingency be such an blunder that contingency strike one on small looking during a (2000) 6 SCC 224 record and would not need any long-drawn routine of logic on a points where there cunning feasible be dual opinions.

(iii) Power of examination cunning not be exercised on a belligerent that a preference was erring on merits.

(iv) Power of examination can also be exercised for any sufficient reason that is far-reaching adequate to embody a myth of fact or law by a probity or even an advocate.

(v) An focus for examination cunning be necessitated by proceed of invoking a doctrine actus curiae neminem gravabit.” In a opinion, a beliefs of law enumerated by it, in a contribution of this case, have poorly been applied.” In Ajit Kumar Rath3, it was observed:-

“29. In examination proceedings, a Tribunal deviated from a beliefs laid down above which, we contingency say, is unconditionally undue and exhibits a bent to rewrite a visualisation by that a debate had been finally decided. This, we are compelled to say, is not a range of examination underneath Section 22(3)(f) of a Administrative Tribunals Act, 1985…………” Similarly, in Parsion Devi4 a beliefs were epitomised as under:
“9. Under Order 47 Rule 1 CPC a visualisation cunning be open to examination inter alia if there is a mistake or an blunder apparent on a face of a record. An blunder that is not obvious and has to be rescued by a routine of reasoning, can frequency be conspicuous to be an blunder apparent on a face of a record justifying a probity to practice a energy of examination underneath Order 47 Rule 1 CPC. In practice of a office underneath Order 47 Rule 1 CPC it is not slight for an erring preference to be “reheard and corrected”. A examination petition, it contingency be remembered has a singular purpose and can't be authorised to be “an seductiveness in disguise”.
15. On a other hand, faith was placed by a respondent on a preference in Board of Control for Cricket in India and another vs. Netaji Cricket Club and others6 to contention that practice in examination would be fit if there be myth of fact or law. Para 90 of conspicuous preference was to a following effect:
“90. Thus, a mistake on a partial of a probity that would embody a mistake in a inlet of a endeavour cunning also call for a examination of a order. An focus for examination would also be maintainable if there exists sufficient reason therefor. What would consecrate sufficient reason would count on a contribution and resources of a case. The difference “sufficient reason” in Order 47 Rule 1 of a Code are far-reaching adequate to embody a myth of fact or law by a probity or even an advocate. An focus for examination cunning be necessitated by proceed of invoking a doctrine “actus curiae neminem gravabit”.” (2005) 4 SCC 741
16. We have left by both a judgments of a High Court in a benefaction box and deliberate opposition submissions on a point. It is good staid that an blunder that is compulsory to be rescued by a routine of logic can frequency be conspicuous to be an blunder apparent on a face of a record. To transparent practice of examination jurisdiction, a blunder contingency be self-evident. Tested on this parameter, a practice of office in a benefaction box was not correct.
The practice undertaken in a benefaction case, in a deliberate view, was as if a High Court was sitting in seductiveness over a progressing preference antiquated 17.02.2017. Even presumption that there was no scold appreciation of contribution and law in a progressing judgment, a parties could be left to plea a preference in an appeal. But a examination was not a scold pill during all. In a view, a High Court erred in interesting a examination petition and sourroundings aside a progressing viewpoint antiquated 17.02.2017. Having so concluded, a judicious march in a resources would be to set aside a visualisation underneath seductiveness and assent a respondent to plea a visualisation antiquated 17.02.2017. But such a march would entail serve lawsuit and therefore, we have deliberate a matter from a mount indicate of second emanate as well.
17. At a outset, we must, therefore, cruise several supplies on that faith was placed by possibly side.

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18. The Family Courts Act, 1984 (hereinafter referred to as a Act) was enacted to yield for a investiture of Family Courts with a viewpoint to foster conciliation and secure rapid allotment of disputes relating to matrimony 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 – any try shall be finished to safeguard that persons committed to a need inter alia to foster a gratification of children and to foster allotment of disputes by conciliation and counselling, are selected. Under Section 6 Counsellors can be allocated by a State Government in conference with a High Court. Section 7 deals with “jurisdiction” and underneath underling proviso (g) of sub-section (1) a office extends in propinquity to safekeeping issues, or a control of, or entrance to, any minor. Section 9 deals with “duty of Family Court to make efforts for settlement” and empowers a Court, thesis to any manners finished by a High Court, to follow such procession as cunning be deemed fit. Section 10 deals with “procedure generally” and states inter alia that Family Court can lay down a possess procession with a viewpoint to arrive during a settlement. Section 12 deals with “assistance of medical and gratification experts” and Section 20 gives major outcome to a Act. Section 21 enables a High Court to support manners that cunning inter alia yield for “efforts that cunning be finished by, and a procession that cunning be followed by, a Family Court for aiding and persuading parties to arrive during a settlement”.

The applicable Sections being Sections 6, 9 and 12 of a Act are as under:-

“6. Counsellors, officers and other employees of Family Courts. – (1) The State Government shall in conference with a High Court, establish a series and categories of counsellors, officers and other employees compulsory to support a Family Court in a liberate of a functions and yield a Family Court with such counsellors, officers and other employees as it cunning cruise fit.
(2) The terms and conditions of organisation of a counsellors and a terms and conditions of use of a officers and other employees, referred to in sub- territory (1), shall be such as cunning be specified by manners finished by a State Government.
9. Duty of Family Court to make efforts for allotment – (1) In any fit or proceeding, try shall be finished by a Family Court in a initial instance, where it is probable to do so unchanging with a inlet and resources of a case, to support and convince a parties in nearing during a allotment in honour of a subject-matter of a fit or pierce and for this purpose a Family Court may, thesis to any manners finished by a High Court, follow such procession as it cunning hold fit.

(2). If, in any fit or proceeding, during any stage, it appears to a Family Court that there is a reasonable probability of a allotment between a parties, a Family Court cunning adjourn a record for such duration as it cruise fit to capacitate attempts to be finished to outcome such a settlement.

(3) The energy conferred by sub-section (2) shall be in serve to, and not in derogation of any other energy of a Family Court to adjourn a proceedings.

12. Assistance of medical and gratification experts.- In any fit or proceedings, it shall be open to a Family Court to secure a services of a medical consultant or such chairman (preferably a lady where available), possibly associated to a parties or not, including a chairman professionally intent in compelling a gratification of a family as a probity cunning cruise fit, for a functions of aiding a Family Court in discharging a functions imposed by this Act.”

19. Pursuant to a sequence creation power, a High Court of Delhi told a Family Courts (Procedure) Rules, 1992 (hereinafter referred to as a Rules). Rule 5 deals with Institution of Proceedings while Rule 8 deals with procession to be followed to arrive during a settlement. Rule 8 is to a following effect.

“8. Procedure to be followed to arrive during a settlement

(i) In any fit or pierce a Judge may, during any stage, ensue a parties to attend a solicitor with a viewpoint to foster conciliation and to secure rapid allotment of disputes.

(ii) The parties shall be firm to attend a solicitor on a date and time bound by a Judge.

(iii) The solicitor cunning need a parties or any one of them to seem on a date and time bound for serve counselling. In box any of a parties fails to appear, a solicitor cunning news a matter to a Judge and a Judge shall pass such orders including awarding of costs, as a resources of a box cunning require. The Judge cunning though need a solicitor to contention a report.

(iv) The counsellor, in a liberate of his duties may:-

(a) Pay visits to a homes of both or any of a parties.
(b) Interview, relatives, friends and acquaintances of a parties or any of them.
(c) Seek such information from a employer of any of a parties, as cunning be deemed necessary.
v) With a before accede of a Judge a solicitor may:-

a) impute a parties to an consultant in other areas, such as medicine or psychiatry.

b) find assistance of any of a institutions, organizations or persons mentioned in Section 5 of a Act.

vi) The solicitor shall say a diary in honour of any box giving in brief a stairs taken.

vii) Information collected by a counsellor, any matter finished before a solicitor or any annals or news prepared by a solicitor will be treated as confidential. The solicitor shall not be called on to hold such information, statements, annals or news to any probity solely with a establish of both a parties.

viii) The solicitor shall not be asked to give justification in any probity in honour of such information statements or notes.

Provided, however, that a solicitor will contention to a Judge a news relating to a home sourroundings of a parties concerned, their personalities and their attribute with their child and/or children in sequence to support a Judge in last a doubt of a control or safekeeping of any child or children of a marriage.

Provided serve that a solicitor will also contention to a Judge a news relating to a home environment, income or customary of critical of a celebration or parties endangered in sequence to support a Judge in last a volume of upkeep and/or subsistence to be postulated to one of a parties.

ix) The Judge cunning also ask a solicitor to contention a news on any other matter, a Judge cruise necessary.

x) A duplicate of any news cunning be granted to a parties, on such ask being finished by a parties.

xi) The parties will be entitled to make their submissions on a report.

xii) The solicitor shall not be asked to give justification in any probity in honour of any news finished by him.

xiii) Save as aforesaid, a solicitor will contention a brief chit to a Judge informing a Judge of a outcome of a record within a time specified by a Judge.

xiv)When a parties arrive during a allotment before a solicitor relating to a brawl or any partial thereof, such allotment shall be reduced to essay and shall be sealed by a parties and countersigned by a counsellor. The Judge shall pronounce a direct or sequence in terms thereof unless a Judge considers a terms of a allotment excessive or unlawful.

xv) Cohabitation between a parties in a march of conciliation record will not be deemed to be condonation of a matrimonial offence.

xvi)Even after flitting of a direct or sequence a Judge cunning need a solicitor to manipulate a chain of children in control of a celebration and to compensate warn visits to a home where a child resides. In box any frequency is compulsory in a arrangements a solicitor will make a news to a Judge. The Judge cunning after notice to a parties pass such orders as Judge cunning hold fit.

xvii) The Judge cunning need a solicitor to supervise, beam and/or support reconciled couples, even after a ordering of a box for such serve duration as a probity cunning order.

xviii) On a ask perceived from a solicitor a Judge cunning emanate routine to any chairman to seem before a solicitor during such place, date and time as cunning be preferred by a counsellor.”

20. Since faith has been placed on several other orthodox supplies to pierce home a emanate per confidentiality in intervention process, some of those supplies are also extracted herein:-

A] Sections 75 and 81 of a Arbitration and Conciliation Act, 1996 are to a following effect:-
“75. Confidentiality – Notwithstanding anything contained in any other law for a time being in force, a councillor and a parties shall keep trusted all matters relating to a conciliation proceedings. Confidentiality shall extend also to a allotment agreement, solely where a avowal is compulsory for functions of doing and enforcement.
81. Admissibility of justification in other proceedings. – The parties shall not rest on or deliver as justification in arbitral or authorised proceedings, possibly or not such record describe to a brawl that is a thesis of a conciliation proceedings,-
(a) views voiced or suggestions finished by a other celebration in honour of a probable allotment of a dispute;

(b) admissions finished by a other celebration in a march of a conciliation proceedings;
(c) proposals finished by a conciliator;
(d) a fact that a other celebration had indicated his will- ingness to accept a offer for allotment finished by a conciliator.” B] Rule 20 of a Delhi High Court Mediation and Conciliation Centre (SAMADHAN) is to a following effect:-
“Rule 20: Confidentiality, avowal and inadmissibility of information.
(a) When a Mediator /Conciliator receives significant information concerning a dispute(s) from any party, he shall hold a piece of that information to a other party, so that a other celebration cunning have an event to benefaction such reason as it cunning cruise appropriate.
Provided that, when a celebration gives information to a Mediator/Conciliator thesis to a specific condition that it be kept confidential, a Mediator/Conciliator shall not hold that information to a other party.
(b) Receipt or perusal, or credentials of records, reports or other papers by a Mediator/Conciliator, while portion in that ability shall be trusted and a Mediator/Conciliator shall not be compelled to hold information per those papers nor as to what transpired during a Mediator/Conciliator before any Court or judiciary or any other management or any chairman or organisation of persons.
(c) Parties shall say confidentiality in honour of events that transpired during a Mediation/ Conciliation and shall not rest on or deliver a conspicuous information in other record as to:
(i) views voiced by a celebration in a march of a mediation/conciliation proceedings;
(ii) papers performed during a mediation/conciliation that were privately compulsory to be treated as trusted or other notes, drafts or information given by a parties or a Mediator/Conciliator;
(iii) proposals finished or views voiced by a Mediator/Conciliator.
(iv) acknowledgment finished by a celebration in a march of mediation/conciliation proceedings;
(v) The fact that a celebration had or had not indicated eagerness to accept a proposal.
d) There shall be no audio or video recording of a mediation/conciliation proceedings.
e) No matter of parties or a witnesses shall be accessible by a Mediator/Conciliator.” C] The format of a focus that a Centre for Mediation and Conciliation (SAMADHAN) requires any celebration to fill in is to a following outcome :-

“I establish to attend all a Mediation Sessions during a time and place bound by a Mediator. Any celebration can repel from intervention if they so select on anticipating that it is not assisting them or their case. Each celebration will bear a possess lawyer’s fees. Each celebration will also share a cost of a Mediator’s fees equally, unless a Court leads otherwise.
The whole routine of intervention will be trusted and whatever is submitted to a Mediator will not be emitted or constructed or be accessible in any Court proceedings. The Mediator will not be compelled to seem as a declare in any Court of law.
The intervention routine is intentional and not contracting on a parties compartment they, on their possess volition, strech a allotment agreement and pointer a same.” D] Certain other supplies relied on by a respondent are:-

“i) The UNICITRAL Conciliation Rules enclose Article 14, that provides for confidentiality of all matters relating to conciliation.
ii) That Section of a Uniform Mediation Act, USA, 2003, provides for payoff opposite disclosure, admissibility and find of communication and information exchanged during intervention process.

iii) That Rule of a Honk Kong International Arbitration Centre Rules mandates intervention to be a private and a trusted process.

iv) The Code of Practice of Family Mediators followed by a Family Mediation Council, England and Wales in divide 5.5 provides that a Mediator contingency not hold any information about, or performed in a march of a intervention to anyone, including a probity allocated officer or court, though demonstrate establish of any participant, an sequence of a probity or where a law imposes an major requirement of avowal on Mediator to do so.

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v) The Family Justice Courts, Singapore also mandates that all information and matters discussed during a Family Dispute Resolution Conferences, counselling, intervention or co-mediation are to be confidential.

vi) The Members Code of Professional Conduct of Family Mediation Canada in Article 7 extends a component of confidentiality to a papers prepared privately for or ensuing from mediation.

vii) The California Rules of Court, 2017 also provides for confidentiality to be confirmed in intervention relating to child control matters.”

21. In Afcons Infrastructure Limited and another vs. Cherian Varkey Construction Company Private Limited and others7 while traffic with issues concerning range and breadth of Section 89 Civil Procedure Code and (2010) 8 SCC 24 a modalities of Alternative Dispute Resolution mentioned therein, this Court remarkable several kinds of disputes in honour of that routine of Alternative Dispute Resolution has routinely been found to be suitable. Para 28 of a preference was as under:-

“28. All other suits and cases of polite inlet in sold a following categories of cases (whether tentative in polite courts or other special tribunals/forums) are routinely suitable for ADR processes:
(i) All cases relating to trade, commerce and contracts, including • disputes outset out of contracts (including all income claims);
• disputes relating to specific performance; • disputes between suppliers and customers; • disputes between bankers and customers; • disputes between developers/builders and customers; • disputes between landlords and tenants/licensor and licensees;
• disputes between insurer and insured;
(ii) All cases outset from stretched or soured relationships, including • disputes relating to matrimonial causes, maintenance, control of children;
• disputes relating to partition/division among family members/coparceners/co-owners; and • disputes relating to partnership among partners.

(iii) All cases where there is a need for delay of a pre-existing attribute in annoy of a disputes, including • disputes between neighbours (relating to easementary rights, encroachments, nuisance, etc.); • disputes between employers and employees;

• disputes among members of societies/associations/apartment owners’ associations;

(iv) All cases relating to tortious liability, including • claims for remuneration in engine accidents/other accidents; and

(v) All consumer disputes, including • disputes where a trader/supplier/manufacturer/service provider is penetrating to say his business/professional repute and credit or product popularity.

The above gazette of “suitable” and “unsuitable” categorisation of cases is not dictated to be downright or rigid. They are illustrative, that can be subjected to usually exceptions or additions by a court/tribunal sportive a jurisdiction/discretion in referring a dispute/case to an ADR process.”

22. In Moti Ram (dead) by Lrs. and another vs. Ashok Kumar and another8 it was hold that intervention record are totally trusted and in box a intervention is unsuccessful, a Mediator should not write anything (2011) 1 SCC 466 that was discussed, due or finished during a intervention proceedings. The observations in that seductiveness were:-

“2. In this connection, we would like to state that intervention record are totally trusted proceedings. This is distinct record in probity that are conducted plainly in a open gaze. If a intervention succeeds, afterwards a go-between should send a agreement sealed by both a parties to a probity though mentioning what transpired during a intervention proceedings. If a intervention is unsuccessful, afterwards a go-between should usually write one visualisation in his news and send it to a probity saying that a “mediation has been unsuccessful”. Beyond that, a go-between should not write anything that was discussed, due or finished during a intervention proceedings. This is since in mediation, really often, offers, opposite offers and proposals are finished by a parties though until and unless a parties strech to an agreement sealed by them, it will not volume to any resolved contract. If a happenings in a intervention record are disclosed, it will destroy a confidentiality of a intervention process.” Similarly, while traffic with a matter outset underneath a Arbitration and Conciliation Act, 1996, it was hold by this Court in Govind Prasad Sharma and others vs. Doon Valley Officers Co-operative Housing Society Ltd. 9 that “both a Conciliator and a parties contingency keep as trusted all matters relating to conciliation proceedings”.

23. Reliance was placed by a respondent on a decisions mentioned above and some orthodox supplies including procedural norms in opposite jurisdictions to contention that there contingency be comprehensive confidentiality in honour of any statements finished during a march of mediation. The appellant, however, relies on Sub-Rule(viii) of Rule 8 of a Rules in support of a acquiescence that in propinquity to matters, inter alia, of control or safekeeping of any child or children, a Counsellor could be asked to contention to a Judge a news relating to home sourroundings of a parties concerned, their personalities and their attribute with a child and or children in sequence to support a Judge in last a questions endangered in a matter.

24. We, thus, have line of cases traffic with mediation/conciliation and other record in ubiquitous and Rule 8 of a Rules traffic inter alia, with control issues that is in a inlet of an difference to a norms of confidentiality. It is loyal that a routine of intervention is founded on a component of confidentiality. Qualitatively, Mediation or Conciliation stands on a totally opposite balance as opposite unchanging adjudicatory processes.

Instead of an adversarial mount in adjudicatory proceedings, a thought of intervention is to solve a brawl during a turn that is gentle rather than adversarial. In a process, a parties cunning make statements that they differently they would not have finished while a matter was tentative adjudication before a probity of law. Such statements that are radically finished in sequence to see if there could be a settlement, ought not to be used opposite a builder of such statements in box during a after indicate a attempts during intervention totally fail. If a statements are authorised to be used during successive stages, a component of certainty that is essential for healthy mediation/conciliation would be totally lost. The component of confidentiality and a declaration that a statements would not be relied on helps a parties bury a hatchet and pierce towards fortitude of a disputes.

The confidentiality is, thus, an critical component of mediation/conciliation.

25. Complete confluence to confidentiality would positively be scold in normal matters where a purpose of a probity is quite of an adjudicator. But such an ensue cunning not radically be gainful when a probity is called on and approaching to liberate a purpose in a ability as parens patriae and is endangered with a gratification of a child. All control and safekeeping issues are resolved on a norm or parameter of “best seductiveness of a child”. In control and safekeeping disputes between dual parties, a teenager child is in a rare situation. At times, both sides are bustling fighting authorised battles and a probity is called on in parens patriae to confirm what is in a best seductiveness of a child. In sequence to strech scold conclusion, a probity cunning talk a child or cunning count on a research of an consultant who cunning spend some some-more time with a child and sign a upbringing, personality, desires or mental support of a child and describe assistance to a court. It is precisely for this reason that a component of confidentiality that is differently a simple substructure of mediation/conciliation, to a certain extent, is over from in Sub-Rule (viii) of Rule 8 of a Rules.

26. If a reports of a Counsellor touching on a home sourroundings of a parties concerned, their personalities and their attribute with their child or children would support a probity in last a control or safekeeping issues, any technicality ought not to mount in a way. Sub-Rule (viii) of Rule 8 seeks to grasp that purpose and creates such component accessible for a comment of a court. The observations of this Court in Ashish Ranjan vs. Anupma Tandon and another10 have crystalized a ensue to be adopted in matters concerning control or safekeeping issues. Paras 18 & 19 of a preference are as under:

“18. It is staid authorised tender that while last a doubt as to that primogenitor a caring and control of a child should be given, a peerless caring stays a gratification and seductiveness of a child and not a rights of a kin underneath a statute. Such an emanate is compulsory to be dynamic in a credentials of a applicable contribution and resources and any box has to be motionless on a possess contribution as a focus of doctrine of glance decisis stays irrelevant insofar as a significant aspects of a box are concerned. While deliberation a gratification of a child, a “moral and reliable gratification of a child contingency also import with a probity as good as his earthy well- being”. The child can't be treated as a skill or a commodity and, therefore, such issues have to be rubbed by a probity with caring and caution, with love, adore and sentiments requesting tellurian hold to a problem. Though, a supplies of a special element that oversee a rights of a kin or guardians cunning be taken into consideration, there is zero that can mount in a proceed of a probity sportive a parens patriae office outset in such cases. (Vide Gaurav Nagpal v. Sumedha Nagpal11.)

19. The orthodox supplies traffic with a control of a child underneath any personal law can't and contingency not substitute a peerless caring as to what is gainful to a gratification of a minor. In fact, no government on a subject, can ignore, eschew or erase a critical cause of a gratification of a minor. (Vide Elizabeth Dinshaw v. Arvand M. Dinshaw12, Chandrakala Menon v. Vipin Menon13, Nil Ratan (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1 : AIR 2009 SC 557 (1987) 1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 3 (1993) 2 SCC 6 : 1993 SCC (Cri) 485 Kundu v. Abhijit Kundu14, Shilpa Aggarwal v. Aviral Mittal15 and Athar Hussain v. Syed Siraj Ahmed16.)”

27. Statements finished by a kin during a march of intervention cunning not be relied on on a belligerent of confidentiality though healthy responses and statements finished by a teenager to a Counsellor would positively means a possibility to confirm what is in a best seductiveness of a child. A child cunning respond naturally and casually in a interactions with a Counsellor, who is professionally lerned to make a child feel comfortable. Record of such communication cunning means profitable inputs to a Court in liberate of a duties in parens patriae jurisdiction. If during such communication issues or aspects concerning gratification of a child are noticed, there is no reason because a Court be deprived of entrance to such aspects. As hold by this Court in several judgments, a peerless caring ought to be to see what is in a best seductiveness of a child.

28. In terms of Sub Rule (viii) of Rule 8, a Counsellor is thankful to give report, inter alia, relating to home sourroundings of a parties concerned, their personalities and their attribute with a child and/or children in sequence to (2008) 9 SCC 413 (2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192 (2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528 support a Judge in last a doubt of safekeeping of any child or children. The goal is transparent that a normal component of confidentiality will not request in matters concerning control or safekeeping issues and a Court, in a best seductiveness of a child, contingency be versed with all a component touching on applicable issues in sequence to describe finish justice. This depart from confidentially is unchanging with a underlined thesis of a Act in ubiquitous and Section 12 in particular. Once there is a transparent difference in foster of categories staid therein, beliefs in any other forms of mediation/conciliation or other modes of Alternative Dispute Resolution per confidentiality can't be imported. The outcome of such difference can't be diluted or nullified. In a view, a High Court deliberate a matter in scold viewpoint in paragraphs 17 to 20 of a visualisation antiquated 07.02.2017.

29. There is, however, one aspect that contingency also be deliberate and that is who is a “Counsellor” within a definition of Rule 8 and possibly a Counsellor who assisted a probity in a benefaction matter comes within a 4 corners of conspicuous provision. It is loyal that underneath Section 6 a Counsellors are allocated by a State Government in conference with a High Court. It is also loyal that a Counsellor in a benefaction box was not a one who was allocated in terms of Section 6 though was allocated by a cabinet of a High Court and her assistance had been requested for in tie with many matters. The sequence upheld on 06.05.2016 had indicated that a Mediator could join “any other person” as cunning be deemed compulsory for a holistic and effective mediation. The successive sequence antiquated 11.05.2016 did discuss a name of a Counsellor and a fact that a Counsellor had a cultivatable assembly with Aditya. The Counsellor, thereafter, interacted with him on 08.07.2016 and 11.07.2016, formed on that interaction, a news was submitted on 21.07.2016. The rendezvous of a Counsellor was so in finish believe of a parties as good as with demonstrate acceptance of a High Court. It cunning be that conspicuous Counsellor was not allocated underneath Section 6 of a Act though if a peerless caring is a gratification of a child, there can't be undue faith on a technicality. As a matter of fact, a breadth of Section 12 of a Act would acknowledge no such restriction. The news given by a Counsellor in a benefaction box cannot, therefore, be eschewed from consideration. It is notable that there was positively zero opposite a Counsellor and in a visualisation underneath appeal, a High Court went on to observe in para No.30 that a Counsellor was good gifted and famous for her joining and frankness to secure a allotment that would be acceptable to all.

30. We do not, therefore, see any reason because a reports in a benefaction case, be kept out of consideration.

31. We, therefore, concede this appeal, set aside a visualisation antiquated 11.12.2017 upheld by a High Court and revive a progressing visualisation antiquated 17.02.2017 upheld by a High Court of Delhi. There shall be no sequence as to costs.

(Abhay Manohar Sapre)
(Uday Umesh Lalit)
New Delhi, Feb 15, 2019

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