Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 174

SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, UDAY UMESH LALIT, JJ.
Perry Kansagra - Appellant
Versus
Smriti Madan Kansagra - Respondent
Civil Appeal No. 1694 of 2019 (@Special Leave Petition (Civil) No. 9267 of 2018)
Decided On : 15-02-2019

Advocates Appeared:
For the Appellant :Mrs. Inderjit Swaruoop, Ms. Arunima Dwivedi, Advocate, Mr. Raghav Swaroop, Advocate and Ms. Anunaya Mehta, Advocate.

IMPORTANT POINTS
Review is permissible in case of an error apparent on the face of the record, but not in case of an error which is required to be detected by a process of reasoning.
Confidentiality of mediation proceedings is absolute where court acts as adjudicator. But not when court acts in the capacity of parens patriae.
There is no infirmity in appointment of counselor by a committee of High Court in complete knowledge of the parties as well as with express acceptance of High Court.

Headnote:(a) Code of Civil Procedure, 1908 – Section 114 – Review – Permissible in case of an error apparent on the face of the record – But not in case of an error which is required to be detected by a process of reasoning – Error must be self-evident – Review jurisdiction is not appellate jurisdiction – Review court cannot sit in appeal over the main judgment – In case of no correct appreciation of facts and law in the earlier judgment remedy lies in appeal and not review – Instantly, held, High Court erred in entertaining the review petition and setting aside the earlier view. (Para 16)
       (2009) 14 SCC 663; (1999) 9 SCC 596; (1997) 8 SCC 715; (2005) 4 SCC 741 – Referred
       (b) Arbitration and Conciliation Act, 1996 – Sections 75 and 81, Rule 20, Delhi High Court Mediation and Conciliation Centre (SAMADHAN), section 89, Code of Civil Procedure, 1908 and Rule 8, Family Courts (Procedure) Rules, 1992 – Confidentiality of mediation proceedings – Absolute where court acts as adjudicator – But not when court acts in the capacity of parens patriae – All custody and guardianship issues are resolved on the touchstone or parameter of "best interest of the child" – As such Rule 8(viii) departs from requirement of confidentiality – Court, in custody cases, entitled to assistance of counsellor’s report. (Para 25, 27, 28)
       (2010) 14 SCC 274 – Relied upon
       (2010) 8 SCC 24; (2011) 1 SCC 466; AIR 2017 SC 4968 : 2017 (11) SCALE 231 – Referred
       (c) Family Courts Act, 1984 – Sections 6 and 12 – Counsellor not appointed by State as required by section 6 – However, counselor appointed by a committee of High Court in complete knowledge of the parties as well as with express acceptance of High Court – Keeping in view paramount concern of the child and wide scope of section 12, held no infirmity in taking the report of counselor on record and considering it. (Para 29)
       Facts of the case:
       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.
       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.
       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.
       In terms of visitation orders passed by the High Court, the 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. The arrangement of visitation was thereafter modified by the Family Court by its orders dated 09.02.2016 and 09.03.2016.
       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 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 Respondent being aggrieved, filed MAT App. (FC) 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.
       The mediation failed.
       High Court took the mediation and conciliation reports on record and terminated the appeal.
       Review Petition thereagainst was allowed
       Finding of the Court:
       High Court erred in entertaining the review petition and setting aside the earlier view.
       There is no reason why the reports in the present case, be kept out of consideration.
       Result: Appeal allowed.

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 alia for an injunction to restrain the appellant from removing Aditya from the 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 dated 06.11.2012 was registered as No.G-53 of 2012 before the Family Court, Saket, New Delhi.

5. In terms of visitation orders passed by the High Court, the 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 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 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:-

".....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) 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 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 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 a

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2019 Supreme(SC) 174

SUPREME COURT OF INDIAABHAY MANOHAR SAPRE, UDAY UMESH LALIT, JJ.Perry Kansagra - AppellantVersusSmriti Madan Kansagra - RespondentCivil Appeal No. 1694 of 2019 (@Special Leave Petition (Civil) No. 9267 of 2018)Decided On : 15-02-2019

Cases Referred (8)

SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, UDAY UMESH LALIT, JJ.
Perry Kansagra - Appellant
Versus
Smriti Madan Kansagra - Respondent
Civil Appeal No. 1694 of 2019 (@Special Leave Petition (Civil) No. 9267 of 2018)
Decided On : 15-02-2019