February 16, 2019:
On Friday, the Bench of Justices Abhay Manohar Sapre and Uday Umesh Lalit of Hon’ble Supreme Court, observes, 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 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.
The Apex court reiterates 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. 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 otherwise they would not have made while the matter was pending adjudication before a court of law.
The issues that arises in the present case for consideration by the Apex Court are:
- Whether the High Court was justified in exercising review jurisdiction and setting aside the earlier judgment.
- Whether the High Court was correct in holding that the reports of the Mediator and the Counsellor 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.
The Counsellor, in the present case, interacted with the child on 08.07.2016 and 11.07.2016, based on which interaction, a report was submitted on 21.07.2016.
As per the respondent, 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 that in relation to matters of custody or guardianship of any child or children, the Counsellor could be asked to submit a report to the Judge 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.
The Bench observes, “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.”
“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….”
It is therefore observed by the Supreme court that, it is precisely for this reason 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 Family Court Rules.
As per the Court, 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 Family Courts Act, 1984 in general and Section 12 in particular.
“…..The engagement of the Counsellor was 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.”
The Court, therefore, does not see any reason why the reports in the present case, be kept out of consideration.
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