PERRY KANSAGRA versus SMRITI MADAN KANSAGRA

Citation: [2019] 3 S.C.R. 991 · Decided: 15-02-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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991
PERRY KANSAGRA
v.
SMRITI MADAN KANSAGRA
(Civil Appeal No. 1694 of 2019)
FEBRUARY 15, 2019
[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
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
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
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
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
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
[2019] 3 S.C.R. 991
991
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992                    SUPREME COURT REPORTS            [2019] 3 S.C.R.
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
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
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
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]
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 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 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
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

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