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2019 (2) TMI 1968 - SC - Indian LawsSeeking injunction to restrain the Appellant from removing Aditya from the custody of the Respondent - filing of Guardianship Petition praying inter alia that he be declared the legal Guardian of Aditya and be given his permanent custody - Aditya holds Kenyan as well as British passport - HELD THAT - 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. 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 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 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 that the Counsellor was well experienced and known for her commitment and sincerity to secure a settlement which would be satisfactory to all. There are no reason why the reports in the present case, be kept out of consideration. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Review Jurisdiction 2. Confidentiality of Mediation and Counsellor Reports Issue-wise Detailed Analysis: 1. Review Jurisdiction The first issue addressed was whether the High Court was justified in exercising review jurisdiction and setting aside its earlier judgment dated 17.02.2017. The appellant argued that the High Court exceeded its scope of review jurisdiction, essentially re-evaluating the case as if it were an appeal. Citing precedents such as *Inderchand Jain v. Motilal*, *Ajit Kumar Rath v. State of Orissa*, and *Parison Devi v. Sumitri Devi*, the appellant contended that review jurisdiction should be limited to correcting self-evident errors and should not involve re-hearing the matter or substituting a new view. The respondent, however, relied on the decision in *Board of Control for Cricket in India v. Netaji Cricket Club*, arguing that review was justified due to a misconception of law or fact. The Supreme Court agreed with the appellant, stating that the High Court's exercise of review jurisdiction was improper as it essentially re-evaluated the earlier judgment. The court concluded that the High Court should not have entertained the review petition and set aside the earlier judgment. 2. Confidentiality of Mediation and Counsellor Reports The second issue was whether the reports of the Mediator and the Counsellor were part of confidential proceedings and could not be used in court. The High Court had initially held that while mediation proceedings are confidential, the reports by a mediator or a child counsellor in child custody matters could be exceptions to this rule, as they provide neutral evaluations to guide the court. The respondent argued that the mediation and counsellor reports should remain confidential, citing various statutory provisions and international norms that mandate confidentiality in mediation processes. The appellant countered that in child custody matters, the court's role as *parens patriae* justifies an exception to confidentiality, as the welfare of the child is paramount. The Supreme Court examined relevant provisions, including Sections 6, 9, and 12 of the Family Courts Act, 1984, and Rule 8 of the Family Courts (Procedure) Rules, 1992. It noted that while confidentiality is crucial in mediation, an exception exists in matters of child custody and guardianship, where the court must consider the best interests of the child. The court emphasized that the counsellor's reports, which provide insights into the child's home environment and relationships, are essential for the court to make informed decisions. The court also addressed the technicality that the counsellor in this case was not appointed under Section 6 of the Family Courts Act but was engaged with the knowledge and acceptance of the parties and the High Court. It concluded that the counsellor's report should not be excluded from consideration, as it serves the paramount interest of the child's welfare. Conclusion The Supreme Court allowed the appeal, set aside the High Court's judgment dated 11.12.2017, and restored the earlier judgment dated 17.02.2017. The court held that the High Court erred in exercising review jurisdiction and that the reports of the Mediator and the Counsellor could be considered in child custody matters, as they provide valuable insights for determining the best interests of the child.
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