Holding

The High Court erred in exercising review jurisdiction and the counsellor’s report is admissible under the exception in Rule 8(viii) of the Family Courts Rules, so the earlier judgment is restored.

Summary

The appeal concerned a custody dispute over a child born to Perry Kansagra and Smriti Madan Kansagra. After mediation failed, the High Court had held that the mediator’s and counsellor’s reports were confidential and could not be used, and later set aside that decision on review. The Supreme Court held that the High Court erred in exercising review jurisdiction because the alleged error was not self‑evident, and that the reports of the counsellor (and mediator) are admissible under the explicit exception in Rule 8(viii) of the Family Courts (Procedure) Rules, 1992, which permits such reports to assist the court in determining the child’s best interests. Consequently, the earlier High Court judgment was restored and the review order set aside.

Issues considered

Whether the High Court was justified in exercising review jurisdiction and setting aside its earlier judgment.
Whether the mediator’s and counsellor’s reports prepared during mediation are protected by confidentiality and therefore inadmissible in custody/guardianship proceedings.

Legislation cited

Arbitration and Conciliation Act, 1996s. 75, s. 81
Code of Civil Procedure, 1908s. Order 47 Rule 1, s. Section 89
Family Courts Act, 1984s. 12, s. 6, s. 9
Family Courts (Procedure) Rules, 1992s. Rule 8(viii)

Subjects

child custodymediation confidentialityreview jurisdictionFamily Courts Actbest interest of childparens patriaecounsellor reportadmissibility of evidenceFamily Courts Rulesalternative dispute resolution

Judgment

[2019] 3 S.C.R. 991 991

PERRY KANSAGRA A
v.
SMRITI MADAN KANSAGRA
(Civil Appeal No. 1694 of 2019)
FEBRUARY 15, 2019
B
[ABHAY MANOHAR SAPRE AND
UDAY UMESH LALIT, JJ.]
Child welfare:
Custody and guardianship matter – Confidentiality in
mediation process – Reports of the mediator as also of the counsellor C
concerning the behavior and attitude of the child, if could be used
in court proceedings, when the mediation process has failed – Held:
Complete adherence to confidentiality is absolutely correct in normal
matters where the role of the court is purely of an adjudicator – But
such an approach not essentially conducive when the court is called
D
upon and expected to discharge its role in the capacity as parens
patriae and is concerned with the welfare of a child – All custody
and guardianship issues are resolved on the touchstone or parameter
of best interest of the child – Statements made by the parents during
the course of mediation may not be relied upon on the ground of
confidentiality but natural responses and statements made by the E
minor to the Counsellor, reports of the Counsellor touching upon
the home environment of the parties concerned, their personalities
and their relationship with their child or children would assist the
court in determining the custody or guardianship issues, any
technicality ought not to stand in the way – Order passed by the
High Court holding that the reports of Mediator and Counsellor F
were part of confidential proceedings and no party could be
permitted to use the same in any court proceedings or could place
any reliance, set aside – Family Courts Act, 1984 – ss. 6 and 12 –
Family Courts (Procedure) Rules, 1992 – r 8(viii).
Review: Review jurisdiction – Exercise of – When – Held: To G
exercise review jurisdiction, the error must be self-evident – An error
which is required to be detected by a process of reasoning can hardly
be said to be an error apparent on the face of the record – On facts,
the exercise of jurisdiction was not correct – High Court acted as if
it was sitting in appeal over the earlier decision – Even assuming H
991
992 SUPREME COURT REPORTS [2019] 3 S.C.R.

A that there was no correct appreciation of facts and law in the earlier
judgment, the parties could be left to challenge the decision in an
appeal – Review was not a proper remedy at all – High Court erred
in entertaining the review petition and setting aside the earlier view.
Allowing the appeal, the Court
B HELD: 1. An error which is required to be detected by a
process of reasoning can hardly be said to be an error apparent
on the face of the record. To justify exercise of review jurisdiction,
the error must be self-evident. Tested on this parameter, the
exercise of jurisdiction was not correct. The exercise undertaken
C in the instant case, was as if the High Court was sitting in appeal
over the earlier decision dated 17.02.2017. Even assuming that
there was no correct appreciation of facts and law in the earlier
judgment, the parties could be left to challenge the decision in
an appeal. But the review was not a proper remedy at all. The
High Court erred in entertaining the review petition and set aside
D the earlier view dated 17.02.2017. Having so concluded, the
logical course in the circumstances would be to set aside the
judgment under appeal and permit the respondent to challenge
the judgment dated 17.02.2017. But such a course would entail
further litigation. [Para 16][1008-G, H; 1009-A, B]
E 2.1 Rule 8 of the Family Courts (Procedure) Rules, 1992
dealing with custody issues which is in the nature of an exception
to the norms of confidentiality. It is true that the process of
mediation is f ounded on the element of confidentiality.
Qualitatively, Mediation or Conciliation stands on a completely
F different footing as against regular adjudicatory processes. Instead
of an adversarial stand in adjudicatory proceedings, the idea of
mediation is to resolve the dispute at a level which is amicable
rather than adversarial. In the process, the parties may make
statements which they otherwise would not have made while the
matter was pending adjudication before a court of law. Such
G 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
H for healthy mediation/conciliation would be completely lost. The
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 993

element of confidentiality and the assurance that the statements A
would not be relied upon helps the parties bury the hatchet and
move towards resolution of the disputes. The confidentiality is,
thus, an important element of mediation/conciliation.
[Para 24][1018-G, H; 1019-A-C]
2.2 Complete adherence to confidentiality would absolutely B
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 C
child”. In custody and guardianship disputes between two parties,
a minor child is in a peculiar situation. At times, both sides are
busy fighting legal battles and the court is called upon in parens
patriae to decide what is in the best interest of the child. In order
to reach correct conclusion, the court may interview the child or D
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 E
Sub-Rule (viii) of Rule 8 of the Rules. [Para 25][1019-D-F]
2.3 If the reports of the Counsellor touching upon the home
environment of the parties concerned, their personalities and
their relationship with their child or children would assist the
court in determining the custody or guardianship issues, any F
technicality ought not to stand in the way. Sub-Rule (viii) of Rule
8 seeks to achieve that purpose and makes such material available
for the assessment of the court. [Para 26][1019-G, H; 1020-A]
2.4 Statements made by the parents during the course of
mediation may not be relied upon on the ground of confidentiality G
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 H
of such interaction may afford valuable inputs to the Court in
994 SUPREME COURT REPORTS [2019] 3 S.C.R.

A discharge of its duties in parens patriae jurisdiction. If during
such interaction issues or aspects concerning welfare of a
child are noticed, there is no reason why the Court be
deprived of access to such aspects. The paramount consideration
ought to be to see what is in the best interest of the child.
[Para 27][1021-A-C]
B
2.5 In terms of Sub Rule (viii) of Rule 8, the Counsellor is
obliged to give report, inter alia, relating to home environment
of the parties concerned, their personalities and their relationship
with the child and/or children in order to assist the Judge in
deciding the question of guardianship of any child or children.
C 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
D 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
E nullified. [Para 28][1021-C-F]
2.6 Under Section 6 the Counsellors are appointed by the
State Government in consultation with the High Court. The
Counsellor in the instant case was not the one who was appointed
in terms of Section 6 but was appointed by a committee of the
F 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
G Counsellor and the fact that the Counsellor had a fruitful meeting
with ‘A’-son of the parties. The Counsellor, thereafter, interacted
with him on 08.07.2016 and 11.07.2016, based on which
interaction, a report was submitted on 21.07.2016. The
engagement of the Counsellor was thus, in complete knowledge
of the parties as well as with express acceptance of the High
H Court. The Counsellor was not appointed under Section 6 of the
Act but if the paramount consideration is the welfare of the child,
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 995

there cannot be undue reliance on a technicality. As a matter of A
fact, the width of Section 12 would admit no such restriction. The
report given by the Counsellor in the instant case cannot,
therefore, be eschewed from consideration. There was absolutely
nothing against the Counsellor and in the judgment under appeal,
the High Court went on to observe that the Counsellor was well
B
experienced and known for her commitment and sincerity to
secure a settlement which would be satisfactory to all. There is
no reason why reports in the instant case be kept out of
consideration. The subsequent judgment passed by the High
Court is set aside and the earlier judgment passed by the High
Court is restored. [Paras 29-31][1021-G, H; 1022-A-E] C
Afcons Infrastructure Limited and another v. Cherian
Varkey Construction Company Private Limited and
others (2010) 8 SCC 24 : [2010] 8 SCR 1053 ; Moti
Ram (dead) through Lrs. and another v. Ashok Kumar
and another (2011) 1 SCC 466 : [2010] 14 SCR 809 ; D
Govind Prasad Sharma and others v. Doon Valley
Officers Co-operative Housing Society Ltd. (2017) 11
SCALE 231 ; Ashish Ranjan v. Anupma Tandon and
another (2010) 14 SCC 274 : [2010] 14 SCR 961 ;
Inderchand Jain (dead) through Lrs. v. Motilal (dead)
through Lrs. (2009) 14 SCC 663 : [2009] 11 SCR 252 E
; Ajit Kumar Rath v. State of Orissa and others (1999) 9
SCC 596 : [1999] 4 Suppl. SCR 302 ; Parsion Devi
and others v. Sumitri Devi and others (1997) 8 SCC
715 : [1997] 4 Suppl. SCR 470 ; Board of Control
for Cricket in India and another v. Netaji Cricket Club F
and others (2005) 4 SCC 741: [2005] 1 SCR 173 -
referred to.
Case Law Reference
[2009] 11 SCR 252 referred to Para 14
[1999] 4 Suppl. SCR 302 referred to Para 14 G
[1997] 4 Suppl. SCR 470 referred to Para 14
[2005] 1 SCR 173 referred to Para 15
[2010] 8 SCR 1053 referred to Para 21
[2010] 14 SCR 809 referred to Para 22
2017 (11) SCALE 231 referred to Para 22
H
[2010] 14 SCR 961 referred to Para 26
996 SUPREME COURT REPORTS [2019] 3 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1694
of 2019.
From the Judgment and Order dated 11.12.2017 of the High Court
of Delhi at New Delhi in Rev. Pet. No. 221 of 2017 in MAT APP (F.C.)
No. 67 of 2016.
B Inderjeet Saroop, Ms. Anunya Mehta, Raghav Saroop,
Ms. Arunima Dwivedi, Advs. for the Appellant.
Saurabh Kirpal, Prosenjeet Banerjee, Ms. Mansi Sharma,
Ms. Shreya Singhal, Advs. for the Respondents.

C The Judgment of the Court was delivered by
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
D order dated 17.02.2017 passed by the 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 at New Delhi. After marriage,
the Respondent shifted to Nairobi, Kenya and settled into her matrimonial
E 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.
F 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
G
custody of the Respondent. Upon notice being issued, the appellant
contested the suit in which visitation orders were passed by the High
Court from time to time. The appellant thereafter filed Guardianship
Petition praying inter alia that he be declared the legal Guardian of
Aditya and be given his permanent custody. The Guardianship Petition
H dated 06.11.2012 was registered as No.G-53 of 2012 before the Family
Court, Saket, New Delhi.
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 997
[UDAY UMESH LALIT, J.]

5. In terms of visitation orders passed by the High Court, the A
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
B
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 C
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:- D
“…..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) E
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 F
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 G
for all disputes between the parties.
……………
9. With the consent of parties, it is directed as follows:
(i) The parties shall appear before Ms. Sadhana Ramchandran,
learned Mediator in SAMADHAN-Delhi High Court Mediation H
and Conciliation Centre on 9th May, 2016 at 2:30 pm.
998 SUPREME COURT REPORTS [2019] 3 S.C.R.

A (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
B 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
C with the consent of the parties.”
8. Thereafter, the matter came up on 11.05.2016. The High Court
interacted with Aditya and following observations were made in paras 2
to 6 of its Order :-

D “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.

E 3. The son of the parties – Master Aditya Vikram Kansagra has
been produced before us today. We have also had a long
conversation with him and are deeply impressed with the maturity
of this intelligent 6½ year old child who displays self confidence
and a remarkable capacity of expressing himself with clarity. He
exhibits no sign of confusion or nervousness at all.
F
4. 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
G Kenya and enthusiastically refers to his experiences in that country.
It is apparent that the child has bonded well with them.
5. 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
H and her mother.
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 999
[UDAY UMESH LALIT, J.]

6. As of now, since 9th February, 2016, the child is meeting his A
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.”
B
9. 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 disputes and differences and an interim report C
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 D
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.
10. Thereafter the matter came up for final arguments before E
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:- F

“10. The mediation has failed.
11. But we are called upon to decide an important question
concerning confidentiality of the mediation process for the reason
on October 11, 2016 a report was received from the Mediator G
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.
…… … …… ……
H
1000 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “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
B
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.
C …… … …… ……
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
D 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
E discussions many a time give rise to a better understanding between
the couple. Such an approach encourages a forget and forgive
attitude to be formed by the parties. If either spouse is under an
apprehension that the well-meant deliberations might subsequently
be used against them it would hamper an unreserved consideration
of their problems. The atmosphere of mutual trust during mediation
F 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
G 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
H
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1001
[UDAY UMESH LALIT, J.]

attitude of both parents who, unlike many other couples, are not A
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
B
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 C
that otherwise the appeal has been rendered infructuous, we
terminate further proceedings in the appeal inasmuch as no orders
are now warranted to be passed in the appeal.
21. The learned Judge Family Court would consider granting
over night interim custody to the respondent when he is in India D
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 E
Court.”
11. On 18.03.2017, the respondent filed Review Petition No.221
of 2017 questioning the judgment dated 17.02.2017. The Review Petition
was allowed by yet another Division Bench of High Court by judgment
and order dated 11.12.2017. After posing the question, “..whether the F
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 G
Court Mediation and Conciliation Rules, 2004; Format of application of
SAMADHAN (the Delhi High Court Mediation and Conciliation Centre);
Conciliation rules of 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 H
1002 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B 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
C 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.
D
22. 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
E 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.
……………………
25. Section 12 of the 1984 Act, empowers the Family Court with
F
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
G 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
H
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1003
[UDAY UMESH LALIT, J.]

unique; undoubtedly she (or he) has professional training and A
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
B
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 C
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 Court would then refer them to the
D
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, E
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,
F
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 G
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.
…………………… H
1004 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 29. 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
B
produced material, to 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
C 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
D
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
E 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.
F 30. If such a position is allowed as in this case, mediation may
then well be used as a forum for gathering expert opinion which
would then enter the main file of 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
G shared with the mediator and during the proceedings of mediation.
In the present case, the help of the counsellor sought by the
mediator to get holistic settlement between the parties was not
ordered in the manner visualized by Section 12 of the Family Courts
1
Nazir Ahmed v King Emperor AIR 1936 PC 243 followed by State of UP v. Singhara
H Singh AIR 1964 SC 358
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1005
[UDAY UMESH LALIT, J.]

Act, 1984. Consequently, neither the report of the mediator nor A
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
B
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 C
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
D
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 E
that zeal and determination that they have displayed.”
12. The view taken by the High Court in allowing the review is
presently under challenge. Mr. Anunya Mehta, learned Advocate for
the appellant submitted - (a) the High Court exceeded the scope of
review jurisdiction as if it was sitting in appeal over the earlier judgment; F
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 G
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 H
1006 SUPREME COURT REPORTS [2019] 3 S.C.R.

A was placed on various statutory provisions; (ii) the Counsellor was not
appointed under Section 6 of the Family Courts Act; (iii) exception under
Rule 8 (viii) to (xiv) of the Family Court Rules cannot be read as exception
to Rules 20 and 23 of the Mediation Rules; (iv) the mediation reports
given by the Counsellor-in-mediation did not fall within the exceptions
provided in rule 8; (v) there was no waiver of confidentiality and the
B
respondent had objected to the use of the 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.
13. The issues that arise for our consideration can broadly be put
under two heads:
C
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
D confidential proceedings and no party could be permitted to use
the same in any court proceedings or could place any reliance on
such reports.
14. As regards the first issue, relying on the decisions of this Court
in Inderchand Jain (dead) through Lrs. vs. Motilal (dead) through
E 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:-

F “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.
G
11. Review is not appeal in disguise. In Lily Thomas v. Union of
India5 this Court held: (SCC p. 251, para 56)
2
(2009) 14 SCC 663
3
(1999) 9 SCC 596
4
(1997) 8 SCC 715
5
H (2000) 6 SCC 224
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1007
[UDAY UMESH LALIT, J.]

“56. It follows, therefore, that the power of review can be A
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.”
………………………… B
33. 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: C

(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 D
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 record and would not require any long-drawn
process of reasoning on the points where there may conceivably
be two opinions.
E
(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.
F
(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:- G

“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
H
1008 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B 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 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
C corrected”. A review petition, it must be remembered has a limited
purpose and cannot be allowed to be “an appeal in disguise”.
15. 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
D 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
E 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
F review may be necessitated by way of invoking the doctrine “actus
curiae neminem gravabit”.”
16. 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
G 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
6
(2005) 4 SCC 741
H
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1009
[UDAY UMESH LALIT, J.]

appeal over the earlier decision dated 17.02.2017. Even assuming that A
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
B
circumstances would be to set aside the judgment under appeal and
permit the respondent to challenge the judgment dated 17.02.2017. But
such a course would entail further litigation and therefore, we have
considered the matter from the stand point of second issue as well.
17. At the outset, we must, therefore, consider various provisions
on which reliance was placed by either side. C

18. The Family Courts Act, 1984 (hereinafter referred to as the
Act) was enacted to provide for the establishment of Family Courts with
a view to promote conciliation and secure speedy settlement of disputes
relating to marriage and family affairs and for matters connected
therewith. Section 4 deals with “appointment of Judges” and sub-section D
(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 E
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 F
“procedure generally” and states inter alia that Family Court can lay
down its 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 G
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:-
H
1010 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “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
B
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 sub-section (1), shall be such as may be
specified by rules made by the State Government.
C
9. 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 the parties in arriving at a settlement in respect of the
D 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
E 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
F to adjourn the proceedings.
12. Assistance of medical and welfare experts.- In every suit
or proceedings, it shall be open to a Family Court to secure the
services of a medical expert or such person (preferably a woman
where available), whether related to the parties or not, including a
G person professionally engaged in promoting the welfare of the
family as the court may think fit, for the purposes of assisting the
Family Court in discharging the functions imposed by this Act.”
19. Pursuant to the rule making power, the High Court of Delhi
notified the Family Courts (Procedure) Rules, 1992 (hereinafter referred
H
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1011
[UDAY UMESH LALIT, J.]

to as the Rules). Rule 5 deals with Institution of Proceedings while Rule A
8 deals with procedure to be followed to arrive at a settlement. Rule 8
is to the following effect.
“8. Procedure to be followed to arrive at a settlement (i) In every
suit or proceeding the Judge may, at any stage, direct the parties
to attend a counsellor with a view to promote conciliation and to B
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 C
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. D
(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.
E
(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. F

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. G
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.
H
1012 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B 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
C 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.
x) A copy of any report may be supplied to the parties, on such
D 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.
E
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
F 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.
G 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
H
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1013
[UDAY UMESH LALIT, J.]

custody of a party and to pay surprise visits to the home where A
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 B
and/or assist reconciled couples, even 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.” C
20. 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:- D

“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 E
necessary for purposes of implementation and enforcement.
81. 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,- F
(a) views expressed or suggestions made by the other party in
respect of a possible settlement of the dispute;
(b) admissions made by the other party in the course of the
conciliation proceedings;
G
(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.”

H
1014 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B 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
C 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
D in that capacity shall be confidential and the Mediator
Conciliator shall not be compelled to divulge information
regarding those documents nor as to what transpired during
the Mediator/Conciliator before any Court or tribunal or
any other authority or any person or group of persons.
E (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
F 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;
G (iii) proposals made or views expressed by the Mediator
Conciliator.
(iv) admission made by a party in the course of mediation
conciliation proceedings;

H (v) The fact that a party had or had not indicated willingness
to accept a proposal.
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1015
[UDAY UMESH LALIT, J.]

d) There shall be no audio or video recording of the mediation A
conciliation proceedings.
e) No statement of parties or the witnesses shall be recorded
by the Mediator/Conciliator.”
C] The format of the application which the Centre for Mediation
and Conciliation (SAMADHAN) requires every party to fill in is B
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 C
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 D
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.” E
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.
F
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.
iii) That Rule of the Honk Kong International Arbitration Centre G
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 H
1016 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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.
B 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
C 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
D custody matters.”
21. 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 the modalities of Alternative Dispute Resolution
E 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
F 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;
G
• disputes between suppliers and customers;
• disputes between bankers and customers;
• disputes between developers/builders and customers;

H 7
(2010) 8 SCC 24
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1017
[UDAY UMESH LALIT, J.]

• disputes between landlords and tenants/licensor and licensees; A
• disputes between insurer and insured;
(ii) All cases arising from strained or soured relationships,
including
• disputes relating to matrimonial causes, maintenance, custody B
of children;
• disputes relating to partition/division among family members/
coparceners/co-owners; and
• disputes relating to partnership among partners.
C
(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; D
• 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 E
(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.
F
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.”
22. In Moti Ram (dead) through Lrs. and another vs. Ashok G
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 that was discussed, proposed or done during the
mediation proceedings. The observations in that behalf were:-
8
(2011) 1 SCC 466 H
1018 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “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
B
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,
C 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.”
D 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”.
E 23. Reliance was placed by the respondent on the decisions
mentioned above and some statutory provisions including procedural
norms in different jurisdictions to submit that there must be absolute
confidentiality in respect of any statements made during the course of
mediation. The appellant, however, relies upon Sub-Rule(viii) of Rule 8
of the Rules in support of the submission that in relation to matters, inter
F 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.
G 24. 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
9
H AIR 2017 SC 4968 : 2017 (11) SCALE 231
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1019
[UDAY UMESH LALIT, J.]

stands on a completely different footing as against regular adjudicatory A
processes. Instead of an adversarial stand in adjudicatory proceedings,
the idea of mediation is to resolve the dispute at a level which is amicable
rather than adversarial. In the process, the parties may make statements
which they otherwise they would not have made while the matter was
pending adjudication before a court of law. Such statements which are
B
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 C
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.
25. Complete adherence to confidentiality would absolutely be
correct in normal matters where the role of the court is purely of an D
adjudicator. But such an approach may not essentially be conducive
when the court is called upon and expected to discharge its role in the
capacity as parens patriae and is concerned with the welfare of a
child. All custody and guardianship issues are resolved on the touchstone
or parameter of “best interest of the child”. In custody and guardianship
disputes between two parties, a minor child is in a peculiar situation. At E
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 F
or mental frame of the child and render assistance to the court. It is
precisely for this reason that the element of confidentiality which is
otherwise the basic foundation of mediation/conciliation, to a certain
extent, is departed from in Sub-Rule (viii) of Rule 8 of the Rules.
26. If the reports of the Counsellor touching upon the home G
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
H
1020 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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:
“18. It is settled legal proposition that while determining the
B 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
C 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 well-being”. The
child cannot be treated as a property or a commodity and,
D 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
E cases. (Vide Gaurav Nagpal v. Sumedha Nagpal11.)
19. 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
F 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 Kundu v. Abhijit Kundu14,
Shilpa Aggarwal v. Aviral Mittal15 and Athar Hussain v. Syed
Siraj Ahmed 16.)”
G
10
(2010) 14 SCC 274
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
14
(2008) 9 SCC 413
15
(2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192
16
H (2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528
PERRY KANSAGRA v. SMRITI MADAN KANSAGRA 1021
[UDAY UMESH LALIT, J.]

27. Statements made by the parents during the course of mediation A
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
B
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. C
28. In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged
to give report, inter alia, relating to home environment of the parties
concerned, their personalities and their relationship with the child and/or
children in order to assist the Judge in deciding the question of
guardianship of any child or children. The intention is clear that the D
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 E
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. F
29. 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 G
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
H
1022 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C 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.
D
30. We do not, therefore, see any reason why the reports in the
present case, be kept out of consideration.
31. We, therefore, allow this appeal, set aside the judgment dated
11.12.2017 passed by the High Court and restore the earlier judgment
E dated 17.02.2017 passed by the High Court of Delhi. There shall be no
order as to costs.

Nidhi Jain Appeal allowed.

F

G

H