Custody of Child = 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.= 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. 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. 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. In our view, the High Court considered the matter in correct perspective in paragraphs 17 to 20 of its judgment dated 07.02.2017.;who is the “Counsellor” within the meaning of Rule 8; whether the Counsellor who assisted the court in the present matter comes within the four corners of said provision. It is true that under Section 6 the Counsellors are appointed by the State Government in consultation with the High Court. It is also true that the Counsellor in the present 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 Aditya. 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. It may be that said 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 of the Act would admit no such restriction. The report given by the Counsellor in the present case cannot, therefore, be eschewed from consideration. It is noteworthy that there was absolutely nothing against the Counsellor and in the judgment under appeal, the High Court went on to observe in para No.30 that the Counsellor was well experienced and known for her commitment and sincerity to secure a settlement which would be satisfactory to all. We do not, therefore, see any reason why the reports in the present case, be kept out of consideration. We, therefore, allow this appeal, set aside the judgment dated 11.12.2017 passed by the High Court and restore the earlier judgment dated 17.02.2017 passed by the High Court of Delhi.


Hon’ble Mr. Justice Uday Umesh Lalit

SLP(C)No.9267 of 2018
Perry Kansagra vs. Smriti Madan Kansagra
1
Reportable
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
J U D G M E N T
Uday Umesh Lalit, J.

  1. Leave granted.
  2. This appeal challenges the final Judgment and Order dated 11.12.2017
    passed by the High Court of Delhi allowing Review Petition No.221 of 2017
    preferred by the respondent against the judgment and order dated 17.02.2017
    passed by the High Court of Delhi in MAT App. (F.C.) No.67 of 2016.
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    2
  3. The appellant (Kenyan and British Citizen) and Respondent (Indian
    Citizen) got married on 29.07.2007 at New Delhi. After marriage, the
    Respondent shifted to Nairobi, Kenya and settled into her matrimonial home
    with the appellant. A son, named Aditya Vikram Kansagra was born to the
    couple on 02.12.2019 at New 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
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    3
    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 meet Aditya for 2 hours
    on Friday, Saturday and Sunday in the 2nd week of every month. According to
    the appellant he flew from Nairobi to New Delhi every month to meet Aditya
    along with the paternal grandparents. In view of the pendency of the
    guardianship petition, CS (OS) No.1604 of 2012 was disposed of by the High
    Court on 31.08.2015, leaving the parties to place their grievances before the
    Family Court. The arrangement of visitation was thereafter modified by the
    Family Court by its orders dated 09.02.2016 and 09.03.2016.
  6. On 18.04.2016, an application was filed by the appellant praying that the
    Family Court may direct the Court Counsellor to bring Aditya to the Court for
    an in-chamber meeting, which prayer was objected to by the Respondent.
    After hearing both sides, the Family Court allowed said application vide
    Order dated 04.05.2016, and directed that Aditya be produced before the
    Court 07.05.2016. The relevant part of the Order was as under:-
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    4
    “…..The court is parens patriae in such proceedings.
    Petitioner’s visitation with the child is anyway
    scheduled for 07.05.2016. Let the child be produced
    before the court at 10 am on 07.05.2016 before he goes
    for meeting with his father and grand parents.”
  7. The Respondent being aggrieved, filed MAT App. (FC) No.67 of 2016
    before the High Court. On 06.05.2016, after hearing both sides, Division
    Bench of the High Court referred the parties to mediation and also directed
    that Aditya be produced before the Court on 11.05.2016. Paragraphs 7 and 9
    of said Order were :-
    “7. During our interaction with the parties, a desire is
    expressed by the parties to make one more attempt for
    a negotiated settlement of all disputes between the
    parties by recourse to mediation. The parents of the
    respondent are also present and have joined the
    proceedings before us. They have also submitted that
    they would like to make an attempt for a negotiated
    settlement for all disputes between the parties.
    … … … … …
  8. With the consent of parties, it is directed as
    follows:
    (i) The parties shall appear before Ms. Sadhana
    Ramchandran, learned Mediator in SAMADHANDelhi High Court Mediation and Conciliation Centre
    on 9th May, 2016 at 2:30 pm.
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    5
    (ii) It shall be open for the learned Mediator to join
    any other person or relative of the parties, as may be
    deemed necessary, for a holistic and effective
    mediation.
    (iii)In case, the 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.”
  9. 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.
  10. 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 no sign of confusion or nervousness at all.
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    Perry Kansagra vs. Smriti Madan Kansagra
    6
  11. We also note that the child was comfortable in his
    interaction with his father and grandparents in court.
    The child has expressed happiness at his visitations
    with his father and grandparents. He unreservedly
    stated that he looks forward to the same. Master
    Aditya Vikram Kansagra is also able to identify other
    relatives in Kenya and enthusiastically refers to his
    experiences in that country. It is apparent that the
    child has bonded well with them.
  12. We must note that the child is at the same time
    deeply attached to his mother and Nani. His bearing
    and personality clearly bear the stamp of the fine
    upbringing being given to him by the appellant and her
    mother.
  13. As of now, since 9th February, 2016, the child is
    meeting his father and grandparents between 10:30 am
    and 05:00 pm on Saturday and Sunday in the second
    week of every month and for two hours on Friday in
    the second week of every month. The visitation is
    supervised as the court has appointed a Counsellor who
    has been directed to remain present throughout the
    visitation.”
  14. During the ensuing mediation sessions, the Mediator and the Counsellor
    interacted with Aditya. The Counsellor interacted with Aditya on 08.07.2016
    and 11.07.2016. Based upon her interactions with him, the Counsellor
    submitted a report dated 21.07.2016 in a sealed cover. Though, mediation
    was attempted on many occasions, the parties were unable to resolve their
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    7
    disputes and differences and an interim report was submitted by the Mediator
    on 22.07.2016. On 11.08.2016, the sealed cover containing the report of the
    Counsellor was opened and the report was taken on record. Copies of the
    report of the Counsellor were given to the parties. In an application moved
    the next day, i.e. on 12.08.2016, the appellant relied upon the report of the
    Counsellor dated 21.07.2016 and prayed for permission to speak to Aditya on
    telephone. While opposing the prayer, the respondent objected to such
    reliance on the ground of confidentiality. The Mediator thereafter filed final
    report in November, 2016 reporting failure.
  15. Thereafter the matter came up for final arguments before another
    Division Bench of the High Court. The Respondent raised the issue of
    admissibility of the reports submitted by the Mediator and Counsellor
    contending that the reports could not be relied upon in view of principle of
    confidentiality. 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.
  16. 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
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    Perry Kansagra vs. Smriti Madan Kansagra
    8
    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 uncomfortable with the idea of
    making a trip to Kenya.
    … … … … … … …
  17. There can be no quarrel with the proposition that
    mediation proceedings are confidential proceedings
    and anything disclosed, discussed or proposed by the
    parties before the mediator cannot be recorded, much
    less divulged. The reason being that very often during
    mediations, offers, counter offers and proposals are
    made. The ethos of mediation would bar disclosure of
    specified communications and writings associated with
    mediation. Parties are encouraged during mediation to
    engage in honest discussions as regards their problems
    and in matrimonial disputes these honest discussions
    many a time give rise to a better understanding
    between the couple. Such an approach encourages a
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    9
    forget and forgive attitude to be formed by the parties.
    If either spouse is under an apprehension that the wellmeant deliberations might subsequently be used
    against them it would hamper an unreserved
    consideration of their problems. The atmosphere of
    mutual trust during mediation warrants complete
    confidentiality.
  18. But where the scope of mediation is the solution of
    a child parenting issue, report by a mediator or a child
    counsellor concerning the behavior and attitude of the
    child would not fall within the bar of confidentiality for
    the reason no information shared by the couple is being
    brought on record. The mandate of Section 12 of the
    Family Courts Act, 1984 cannot be lost sight of.
  19. In the instant case, what has been taken on record
    during mediation proceedings is the report of the Child
    Counsellor and the mediator, which we find are reports
    commending the good attitude of both parents who,
    unlike many other couples, are not using the child as a
    tool to take revenge against the other. As noted above,
    the interaction by the previous Division Bench with the
    child has been recorded in the order dated May 11,
    2016 i.e. the child being equally comfortable with both
    parents and having a desire to spend quality time with
    not only his mother and relatives from the maternal
    side but even with the father and relatives from the
    paternal side. Such reports are a neutral evaluation of
    expert opinion to a Court to guide the Court as to what
    orders need to be passed in the best interest of the
    child. These reports are not confidential
    communications of the parties.
  20. Having answered the issue which incidentally
    arose, and noting that otherwise the appeal has been
    rendered infructuous, we terminate further proceedings
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    10
    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.”
  22. 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 Counsellor “..shall be disregarded by the family court, when
    it proceeds to decide the merits of the case”. During the course of its
    discussion, the High Court noted Delhi High Court Mediation and
    Conciliation Rules, 2004; Format of application of SAMADHAN (the Delhi
    High Court Mediation and Conciliation Centre); Conciliation rules of
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    11
    UNCITRAL; Sections 75 and 81 of the Arbitration and Conciliation Act,
    1996; Mediation Training Manual issued by the Mediation and Conciliation
    Project Committee, Supreme Court of India and Chartered Institute of
    Arbitrator’s Rules mandating confidentiality in matters pertaining to
    mediation and observed as under:-
    “21. There can, be no quarrel with the proposition that
    the mediation proceedings are confidential and
    anything disclosed, discussed or proposed before the
    mediator need not be recorded, much less divulged and
    that if it is done there would always be an apprehension
    that the discussion may be used against the parties and
    it would hamper the entire process. The atmosphere of
    mutual trust warrants complete confidentiality and the
    same is in fact noted in the main judgment. The
    petitioner is aggrieved by its later part which notes
    “but where the scope of the mediation is resolution of
    child parenting issue, the report concerning the
    behavior and attitude of the child would not fall within
    the bar of confidentiality”. To our mind, this is against
    the principle of mediation and charts the course of a
    slippery slope, as this judgment would hereafter
    discuss.
  23. No exceptions are made in the mediation rules
    either in our laws or in various jurisdictions mentioned
    above to the absolute rule of confidentiality. This
    Court held the mandate of Section 12 of the Family
    Courts Act, 1984 cannot be lost sight of; yet the issue
    is whether the order dated May 6, 2016 was passed
    purely under Section 12 of the Family Courts Act,
    1984 or it was simply to facilitate mediation of
    disputes between the parents of the child.
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    12
    … … … … … … … …
  24. Section 12 of the 1984 Act, empowers the Family
    Court with the discretion to refer the parties to a
    counsellor, Undoubtedly, that power also extends to the
    appellate court. However, this case has three rather
    unusual features: one that the Court never authorized
    the mediator to exercise power that is vested statutorily
    with it. The discretion to involve or not to involve a
    counsellor is 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 involvement of a counsellor,
    does not in any manner undermine or take away the
    Court’s sole power to exercise it. In the eventuality of
    the parties’ agreeing, to such a course, they have to be
    asked to approach the Court, for appropriate orders: the
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    13
    Court would then refer them to the counsellor. The
    question of the kind of report to be submitted to the
    Court and whether it would be a part of the record
    would be known during the course of the proceeding.
    In the present case, the parties merely consented.
    There is nothing to show that the parties were aware
    that the mediator’s report, with regard to not merely
    what transpired, but with respect to her reflections,
    would be given to the court; nor was there anything to
    show that they were aware – when they consented to
    the involvement of a counsellor that her report would
    be given to the court. The third unusual feature is that
    in at least two sittings with the counsellor, the mediator
    was present. This “joint” proceeding is, in the opinion
    of the Court, unacceptable. It can lead to undesirable
    consequences, especially if the mediator and counsellor
    proceed to furnish their reports (as they did in this
    case). A reading of both reports in the present case,
    paints a definite picture to the reader strongly
    suggestive of a plausible course of action or
    conclusion. It is this, the power of suggestion, which
    parties are guaranteed protection from, when they
    agree to mediation. Imagine if there were to be a
    possibility of divergence of opinion. Where would that
    lead? Aside from adding to contentiousness, the Court
    too would be left confounded.
    … … … … … … … …
  25. The observations made in the main judgment
    dated February 17, 2017 in effect would permit the
    mediators to exercise de facto, or in default, the
    exclusive powers of the Court under Section 12 of the
    1984 Act, which are non delegable. There is no
    question of validation of such action, by a later order of
    the Court. The danger of this would be that Courts can
    well draw upon such irregularly produced material, to
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    14
    arrive at conclusions. The requirement of Section 12
    also has to be understood as the mandate of law that
    only the Court and no other body can refer the parties
    to counseling. The proposition that something which
    the law mandates to be performed in one manner and
    no other manner “where a power is given to do a
    certain thing in a certain way, the thing must be done
    in that way or not at all”1
    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.
  26. 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 the case. The mandate of Section 89 of the
    Civil Procedure Code, 1908, read with Rule 20 and
    Rule 21 of the Delhi High Court Mediation and
    Conciliation Rules, 2004 provides for confidentiality
    and non-disclosure of information shared with the
    mediator and during the proceedings of mediation. In
    the present case, the help of the counsellor sought by
    1Nazir Ahmed v King Emperor AIR 1936 PC 243 followed by State of UP v. Singhara
    Singh AIR 1964 SC 358
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    15
    the mediator to get holistic settlement between the
    parties was not ordered in the manner visualized by
    Section 12 of the Family Courts Act, 1984.
    Consequently, neither the report of the mediator nor of
    the counsellor could have been allowed to be exhibited.
    They are contrary to the mandate of principles
    governing the mediation – they undermine party
    autonomy and choice; besides, they clearly violate
    Section 75 of the Arbitration and Conciliation Act. The
    observations in the judgment dated February 17, 2017
    to the extent it notes that “the reports of the mediator
    as also of the counsellor concerning the behavior and
    attitude of the child, especially when the mediation
    process has failed would not fall within the bar of
    confidentiality and hence cannot be used in any
    proceeding…… Such reports are a neutral evaluation
    of expert opinion to a Court to guide the Court as to
    what orders need to be passed in the best interest of the
    child. These reports are not confidential
    communications of the parties” and carving a general
    exception to mediation confidentiality in child custody
    matters and disputes for which the Family Court can
    seek the assistance of the counsellor, under Section 12
    of the 1984 Act, are hereby recalled. We hasten to add
    that this judgment is not a reflection on the mediator
    whose unstinted track record is known to all, or the
    endeavor of the counsellor, who too is very
    experienced in her field. Their commitment and
    sincerity to secure a settlement satisfactory to all, and
    the mediation process in general, is not doubted; this
    judgment should in no way dampen that zeal and
    determination that they have displayed.”
  27. The view taken by the High Court in allowing the review is presently
    under challenge. Mr. Anunya Mehta, learned Advocate for the appellant
    SLP(C)No.9267 of 2018
    Perry Kansagra vs. Smriti Madan Kansagra
    16
    submitted – (a) the High Court exceeded the scope of review jurisdiction as if
    it was sitting in appeal over the earlier judgment; that in terms of law laid
    down by this court an error which is not self-evident and which is required to
    be detected 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-inmediation 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
    SLP(C)No.9267 of 2018
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    17
    reports at the first instance; (vi) the earlier order being based on a
    misconception of law, the High Court was right in exercising review
    jurisdiction.
  28. The issues that arise for our consideration can broadly be put under two
    heads:
    a) Whether the High Court was justified in exercising review
    jurisdiction and setting aside the earlier judgment and
    b) Whether the High Court was correct in holding that the reports of
    the Mediator and the Counsellor 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.
  29. As regards the first issue, relying on the decisions of this Court in
    Inderchand Jain (dead) through Lrs. vs. Motilal (dead) through Lrs.2
    , Ajit
    Kumar Rath vs. State of Orissa and others3
    and Parsion Devi and others vs.
    Sumitri Devi and others4
    , it was submitted by the appellant that the exercise
    of review jurisdiction was not warranted at all. In Inderchand Jain2
    it was
    observed in paras 10, 11 and 33 are as under:-
    2
    (2009) 14 SCC 663
    3
    (1999) 9 SCC 596
    4
    (1997) 8 SCC 715
    SLP(C)No.9267 of 2018
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    “10. It is beyond any doubt or dispute that the review
    court does not sit in appeal over its own order. A
    rehearing of the matter is impermissible in law. It
    constitutes an exception to the general rule that once a
    judgment is signed or pronounced, it should not be
    altered. It is also trite that exercise of inherent
    jurisdiction is not invoked for reviewing any order.
  30. Review is not appeal in disguise. In Lily Thomas
    v. Union of India5
    this Court held: (SCC p. 251, para
    56)
    “56. It follows, therefore, that the power of review can
    be exercised for correction of a mistake but not to
    substitute a view. Such powers can be exercised within
    the limits of the statute dealing with the exercise of
    power. The review cannot be treated like an appeal in
    disguise.”
    … … … … … … … … … …
  31. The High Court had rightly noticed the review
    jurisdiction of the court, which is as under:
    “The law on the subject—exercise of power of review,
    as propounded by the Apex Court and various other
    High Courts may be summarised as hereunder:
    (i) Review proceedings are not by way of appeal
    and have to be strictly confined to the scope and
    ambit of Order 47 Rule 1 CPC.
    (ii) Power of review may be exercised when
    some mistake or error apparent on the fact of record
    is found. But error on the face of record must be such
    an error which must strike one on mere looking at the
    5
    (2000) 6 SCC 224
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    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 Rath3
    , 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 Devi4
    the principles were summarized as under:
    “9. Under Order 47 Rule 1 CPC a judgment may be
    open to review inter alia if there is a mistake or an error
    apparent on the face of the record. An error which is
    not self-evident and has to be detected by a process of
    reasoning, can hardly be said to be an error apparent on
    SLP(C)No.9267 of 2018
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    the face of the record justifying the court to exercise its
    power of review under Order 47 Rule 1 CPC. In
    exercise of the jurisdiction under Order 47 Rule 1 CPC
    it is not permissible for an erroneous decision to be
    “reheard and corrected”. A review petition, it must be
    remembered has a limited purpose and cannot be
    allowed to be “an appeal in disguise”.
  32. On the other hand, reliance was placed by the respondent on the decision
    in Board of Control for Cricket in India and another vs. Netaji Cricket Club
    and others6
    to submit that exercise in review would be justified if there be
    misconception of fact or law. Para 90 of said decision was to the following
    effect:
    “90. Thus, a mistake on the part of the court which
    would include a mistake in the nature of the
    undertaking may also call for a review of the order. An
    application for review would also be maintainable if
    there exists sufficient reason therefor. What would
    constitute sufficient reason would depend on the facts
    and circumstances of the case. The words “sufficient
    reason” in Order 47 Rule 1 of the Code are wide
    enough to include a misconception of fact or law by a
    court or even an advocate. An application for review
    may be necessitated by way of invoking the doctrine
    “actus curiae neminem gravabit”.”
    6
    (2005) 4 SCC 741
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  33. We have gone through both the judgments of the High Court in the
    instant case and considered rival submissions on the point. It is well settled
    that 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 in the present case was not correct.
    The exercise undertaken in the present case, in our considered view, 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. 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.
    SLP(C)No.9267 of 2018
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  34. At the outset, we must, therefore, consider various provisions on which
    reliance was placed by either side.
  35. 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 selected. Under Section 6 Counsellors can be appointed by
    the State Government in consultation with the High Court. Section 7 deals
    with “jurisdiction” and under sub clause (g) of sub-section (1) the jurisdiction
    extends in relation to guardianship issues, or the custody of, or access to, any
    minor. Section 9 deals with “duty of Family Court to make efforts for
    settlement” and empowers the Court, subject to any rules made by the High
    Court, to follow such procedure as may be deemed fit. Section 10 deals with
    “procedure generally” and states inter alia that Family Court can lay down its
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    23
    own procedure with a view to arrive at a settlement. Section 12 deals with
    “assistance of medical and welfare experts” and Section 20 gives overriding
    effect to the Act. Section 21 enables the High Court to frame rules which may
    inter alia provide for “efforts which may be made by, and the procedure
    which may be followed by, a Family Court for assisting and persuading
    parties to arrive at a settlement”.
    The relevant Sections being Sections 6, 9 and 12 of the Act are as
    under:-
    “6. Counsellors, officers and other employees of
    Family Courts. – (1) The State Government shall in
    consultation with the High Court, determine the
    number and categories of counsellors, officers and
    other employees required to assist a Family Court in
    the discharge of its functions and provide the Family
    Court with such counsellors, officers and other
    employees as it may think fit.
    (2) The terms and conditions of association of the
    counsellors and the terms and conditions of service of
    the officers and other employees, referred to in subsection (1), shall be such as may be specified by rules
    made by the State Government.
  36. Duty of Family Court to make efforts for
    settlement – (1) In every suit or proceeding, endeavor
    shall be made by the Family Court in the first instance,
    where it is possible to do so consistent with the nature
    and circumstances of the case, to assist and persuade
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    the parties in arriving at a settlement in respect of the
    subject-matter of the suit or proceeding and for this
    purpose a Family Court may, subject to any rules made
    by the High Court, follow such procedure as it may
    deem fit.
    (2). If, in any suit or proceeding, at any stage, it
    appears to the Family Court that there is a reasonable
    possibility of a settlement between the parties, the
    Family Court may adjourn the proceedings for 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.
  37. 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.”
  38. 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.
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    “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 conciliation and to secure speedy
    settlement of disputes.
    (ii) The parties shall be bound to attend the counsellor
    on the date and time fixed by the Judge.
    (iii)The counsellor may require the parties or any one
    of them to appear on a date and time fixed for further
    counselling. In case any of the parties fails to appear,
    the counsellor may report the matter to the Judge and
    the Judge shall pass such orders including awarding of
    costs, as the circumstances of the case may require.
    The Judge may nevertheless require the counsellor to
    submit a report.
    (iv) The counsellor, in the discharge of his duties may:-
    (a) Pay visits to the homes of both or any of the
    parties.
    (b) Interview, relatives, friends and
    acquaintances of the parties or any of them.
    (c) Seek such information from the employer of
    any of the parties, as may be deemed necessary.
    v) With the prior permission of the Judge the
    counsellor may:-
    a) refer the parties to an expert in other areas,
    such as medicine or psychiatry.
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    b) seek assistance of any of the institutions,
    organizations or persons mentioned in Section 5
    of the Act.
    vi) The counsellor shall maintain a diary in respect of
    every case giving in brief the steps taken.
    vii) Information gathered by the counsellor, any
    statement made before the counsellor or any notes or
    report prepared by the counsellor will be treated as
    confidential. The counsellor shall not be called upon to
    disclose such information, statements, notes or report
    to any court except with the consent of both the parties.
    viii) The counsellor shall not be asked to give evidence
    in any court in respect of such information statements
    or notes.
    Provided, however, that the counsellor will submit
    to the Judge a report relating to the home environment
    of the parties concerned, their personalities and their
    relationship with their child and/or children in order to
    assist the Judge in deciding the question of the custody
    or guardianship of any child or children of the
    marriage.
    Provided further that the counsellor will also submit to
    the Judge a report relating to the home environment,
    income or standard of living of the party or parties
    concerned in order to assist the Judge in determining
    the amount of maintenance and/or alimony to be
    granted to one of the parties.
    ix) The Judge may also request the counsellor to
    submit a report on any other matter, the Judge consider
    necessary.
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    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 resides. In case any
    alternation is required in the arrangements the
    counsellor will make a report to the Judge. The Judge
    may after notice to the parties pass such orders as
    Judge may deem fit.
    xvii)The Judge may require the counsellor to
    supervise, guide and/or assist reconciled couples, even
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    after the disposal of the case for such further period as
    the court may order.
    xviii) On a request received from the counsellor
    the Judge may issue process to any person to appear
    before the counsellor at such place, date and time as
    may be desired by the counsellor.”
  39. Since reliance has been placed on various other statutory provisions to
    bring home the issue regarding confidentiality in mediation process, some of
    those provisions are also extracted herein:-
    A] Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 are
    to the following effect:-
    “75. Confidentiality – Notwithstanding anything
    contained in any other law for the time being in force,
    the conciliator and the parties shall keep confidential
    all matters relating to the conciliation proceedings.
    Confidentiality shall extend also to the settlement
    agreement, except where its disclosure is necessary for
    purposes of implementation and enforcement.
  40. Admissibility of evidence in other proceedings.
    – The parties shall not rely on or introduce as evidence
    in arbitral or judicial proceedings, whether or not such
    proceedings relate to the dispute that is the subject of
    the conciliation proceedings,-
    (a) views expressed or suggestions made by the other
    party in respect of a possible settlement of the dispute;
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    (b) admissions made by the other party in the course
    of the conciliation proceedings;
    (c) proposals made by the conciliator;
    (d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the
    conciliator.”
    B] Rule 20 of the Delhi High Court Mediation and Conciliation Centre
    (SAMADHAN) is to the following effect:-
    “Rule 20: Confidentiality, disclosure and
    inadmissibility of information.
    (a) When a Mediator /Conciliator receives factual
    information concerning the dispute(s) from any
    party, he shall disclose the substance of that
    information to the other party, so that the other party
    may have an opportunity to present such
    explanation as it may consider appropriate.
    Provided that, when a party gives information to the
    Mediator/Conciliator subject 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
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    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) The fact that a party had or had not indicated
    willingness to accept a proposal.
    d) There shall be no audio or video recording of the
    mediation/conciliation proceedings.
    e) No statement of parties or the witnesses shall be
    recorded by the Mediator/Conciliator.”
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    C] The format of the application which the Centre for Mediation and
    Conciliation (SAMADHAN) requires every party to fill in is to the
    following effect :-
    “I agree to attend all the Mediation Sessions at the time
    and place fixed by the Mediator. Any party can
    withdraw from mediation if they so choose on finding
    that it is not helping them or their case. Each party will
    bear its own lawyer’s fees. Each party will also share
    the cost of the Mediator’s fees equally, unless the Court
    directs otherwise.
    The entire process of mediation will be confidential
    and whatever is submitted to the Mediator will not be
    divulged or produced or be admissible in any Court
    proceedings. The Mediator will not be compelled to
    appear as a witness in any Court of law.
    The mediation process is voluntary and not binding on
    the parties till they, on their own volition, reach a
    settlement agreement and sign the same.”
    D] Certain other provisions relied upon by the respondent are:-
    “i) The UNICITRAL Conciliation Rules contain Article
    14, which provides for confidentiality of all matters
    relating to conciliation.
    ii) That Section of the Uniform Mediation Act, USA,
    2003, provides for privilege against disclosure,
    admissibility and discovery of communication and
    information exchanged during mediation process.
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    iii) That Rule of the Honk Kong International Arbitration
    Centre Rules mandates mediation to be a private and a
    confidential process.
    iv) The Code of Practice of Family Mediators followed
    by the Family Mediation Council, England and Wales in
    paragraph 5.5 provides that the Mediator must not
    disclose any information about, or obtained in the course
    of the mediation to anyone, including a court appointed
    officer or court, without express consent of each
    participant, an order of the court or where the law imposes
    an overriding obligation of disclosure on Mediator to do
    so.
    v) The Family Justice Courts, Singapore also mandates
    that all information and matters discussed during the
    Family Dispute Resolution Conferences, counselling,
    mediation or co-mediation are to be confidential.
    vi) The Members Code of Professional Conduct 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.”
  41. In Afcons Infrastructure Limited and another vs. Cherian Varkey
    Construction Company Private Limited and others7
    while dealing with
    issues concerning scope and width of Section 89 Civil Procedure Code and
    7
    (2010) 8 SCC 24
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    33
    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;
    • 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 arising from strained or soured
    relationships, including
    • disputes relating to matrimonial causes, maintenance,
    custody of children;
    • disputes relating to partition/division among family
    members/coparceners/co-owners; and
    • disputes relating to partnership among partners.
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    (iii) All cases where there is a need for continuation of
    the pre-existing relationship in spite of the 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 compensation in motor accidents/other
    accidents; and
    (v) All consumer disputes, including
    • disputes where a
    trader/supplier/manufacturer/service provider is keen to
    maintain his business/professional reputation and
    credibility or product popularity.
    The above enumeration of “suitable” and “unsuitable”
    categorisation of cases is not intended to be exhaustive
    or rigid. They are illustrative, which can be subjected
    to just exceptions or additions by the court/tribunal
    exercising its jurisdiction/discretion in referring a
    dispute/case to an ADR process.”
  42. In Moti Ram (dead) through Lrs. and another vs. Ashok Kumar and
    another8
    it was held that mediation proceedings are totally confidential and in
    case the mediation is unsuccessful, the Mediator should not write anything
    8
    (2011) 1 SCC 466
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    that was discussed, proposed or done during the mediation proceedings. The
    observations in that behalf were:-
    “2. In this connection, we would like to state that
    mediation proceedings are totally confidential
    proceedings. This is unlike proceedings in court which
    are conducted openly in the public gaze. If the
    mediation succeeds, then the mediator should send the
    agreement signed by both the parties to the court
    without mentioning what transpired during the
    mediation proceedings. If the mediation is
    unsuccessful, then the mediator should only write one
    sentence in his report and send it to the court stating
    that the “mediation has been unsuccessful”. Beyond
    that, the mediator 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 others vs. Doon Valley Officers Co-operative Housing Society Ltd.9
    that “both the Conciliator and the parties must keep as confidential all matters
    relating to conciliation proceedings”.
    9 AIR 2017 SC 4968 : 2017 (11) SCALE 231
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  43. 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
    that in relation to matters, inter alia, of custody or guardianship of any child
    or children, the Counsellor could be asked to submit to the Judge a report
    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 questions involved in the matter.
  44. We, thus, have line of cases dealing with mediation/conciliation and
    other proceedings in general and Rule 8 of the Rules dealing inter alia, 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 founded 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
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    adversarial. In the process, the parties may make statements which they
    otherwise they 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.
  45. 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
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    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.
  46. 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 vs.
    Anupma Tandon and another10 have crystalized the approach to be adopted
    in matters concerning custody or guardianship issues. Paras 18 & 19 of the
    decision are as under:
    10 (2010) 14 SCC 274
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    “18. 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.
    Such an issue is required to be determined in the
    background of the relevant facts and circumstances and
    each case has to be decided on its own facts as the
    application of doctrine of stare decisis remains
    irrelevant insofar as the factual aspects of the case are
    concerned. While considering the welfare of the child,
    the “moral and ethical welfare of the child must also
    weigh with the court as well as his physical wellbeing”. The child cannot be treated as a property or a
    commodity and, therefore, such issues have to be
    handled by the court with care and caution, with love,
    affection and sentiments applying human touch to the
    problem. Though, the provisions of the special statutes
    which govern the rights of the parents or guardians
    may be taken into consideration, there is nothing which
    can stand in the way of the court exercising its parens
    patriae jurisdiction arising in such cases. (Vide Gaurav
    Nagpal v. Sumedha Nagpal11.)
  47. The statutory provisions dealing with the custody
    of the child under any personal law cannot and must
    not supersede the paramount consideration as to what
    is conducive to the welfare of the minor. In fact, no
    statute on the subject, can ignore, eschew or obliterate
    the vital factor of the welfare of the minor. (Vide
    Elizabeth Dinshaw v. Arvand M. Dinshaw12
    ,
    Chandrakala Menon v. Vipin Menon13
    , Nil Ratan
    11(2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1 : AIR 2009 SC 557
    12 (1987) 1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 3
    13 (1993) 2 SCC 6 : 1993 SCC (Cri) 485
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    40
    Kundu v. Abhijit Kundu14
    , Shilpa Aggarwal v. Aviral
    Mittal15 and Athar Hussain v. Syed Siraj Ahmed16.)”
  48. 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. 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.
  49. 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
    14 (2008) 9 SCC 413
    15 (2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192
    16 (2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528
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    Perry Kansagra vs. Smriti Madan Kansagra
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    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. In our view, the High Court considered the
    matter in correct perspective in paragraphs 17 to 20 of its judgment dated
    07.02.2017.
  50. There is, however, one aspect which must also be considered and that is
    who is the “Counsellor” within the meaning of Rule 8 and whether the
    Counsellor who assisted the court in the present matter comes within the four
    corners of said provision. It is true that under Section 6 the Counsellors are
    appointed by the State Government in consultation with the High Court. It is
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    Perry Kansagra vs. Smriti Madan Kansagra
    42
    also true that the Counsellor in the present 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
    Aditya. 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. It may be that said 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 of the Act would admit no such restriction. The report given by
    the Counsellor in the present case cannot, therefore, be eschewed from
    consideration. It is noteworthy that there was absolutely nothing against the
    Counsellor and in the judgment under appeal, the High Court went on to
    observe in para No.30 that the Counsellor was well experienced and known
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    for her commitment and sincerity to secure a settlement which would be
    satisfactory to all.
  51. We do not, therefore, see any reason why the reports in the present case,
    be kept out of consideration.
  52. We, therefore, allow this appeal, set aside the judgment dated 11.12.2017
    passed by the High Court and restore the earlier judgment dated 17.02.2017
    passed by the High Court of Delhi. There shall be no order as to costs.
    …………..…..……..……J.
    (Abhay Manohar Sapre)
    ….………….……………J.
    (Uday Umesh Lalit)
    New Delhi,
    February 15, 2019