2019 Supreme(SC) 174
A.M.SAPRE, UDAY UMESH LALIT
Perry Kansagra – Appellant
Versus
Smriti Madan Kansagra – Respondent
Advocates Appeared:
For the Appellant :Mrs. Inderjit Swaruoop, Ms. Arunima Dwivedi, Advocate, Mr. Raghav Swaroop, Advocate and Ms. Anunaya Mehta, Advocate.
Judgement Key Points
- Marriage between appellant (Kenyan and British citizen) and respondent (Indian citizen) occurred on 29.07.2007 in New Delhi; respondent shifted to Nairobi post-marriage; child Aditya born on 02.12.2009 in New Delhi; family traveled between Kenya and India; child holds Kenyan and British passports.[1000630050002][1000630050003]
- Family arrived in New Delhi on 10.03.2012; return tickets to Nairobi booked for 06.06.2012; respondent filed suit for injunction restraining appellant from removing child; appellant filed guardianship petition seeking custody.[1000630050002][1000630050003]
- High Court passed periodic visitation orders; Family Court modified visitation; appellant sought court interaction with child via counselor; Family Court allowed on 04.05.2016.[1000630050004][1000630050005] (!)
- Respondent appealed to High Court; on 06.05.2016, High Court referred parties to mediation, permitted mediator to involve others including child meetings, directed child production.[1000630050006] (!) (!) (!) (!) (!)
- On 11.05.2016, High Court interacted with child, noted child's maturity, comfort with both parents and grandparents, positive bonding.[1000630050007] (!) (!) (!) (!) (!)
- Mediator and counselor interacted with child; counselor submitted report on 21.07.2016; mediation failed; reports taken on record, copies to parties.[1000630050008]
- High Court on 17.02.2017 upheld use of counselor and mediator reports in child custody context, terminated appeal, directed Family Court on visitation and passport. (!) (!) (!) (!) (!) (!) (!) (!) [1000630050009][1000630050010]
- Respondent's review petition allowed on 11.12.2017; High Court held reports confidential, not usable, recalled prior observations on exception in child matters. (!) (!) (!) (!) (!) (!) (!)
- Supreme Court held High Court erred in review; review not for errors needing reasoning, not appellate jurisdiction.[1000630050013][1000630050014][1000630050015] (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
- Confidentiality absolute when court is adjudicator, but not as parens patriae in child custody; best interest of child paramount; Rule 8(viii) permits counselor report on home environment, personalities, child relationship for custody decisions.[1000630050023][1000630050024][1000630050025][1000630050026][1000630050027] (!) (!) (!) (!)
- Sections 75, 81 Arbitration Act, Rule 20 Delhi Mediation Rules mandate confidentiality, but Family Courts Act Sections 6,9,12 and Rule 8 exceptions apply for child welfare.[1000630050016][1000630050017][1000630050019] (!) (!) (!) (!) (!) (!)
- Counselor not under Section 6 but High Court committee appointee, with parties' knowledge and court acceptance; Section 12 wide enough; no infirmity in using report.[1000630050028] (!) (!)
- Appeal allowed; review judgment set aside; earlier High Court judgment restored.[1000630050029][1000630050030]
JUDGMENT :
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.
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
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