S. RAVINDRA BHAT, J.

C.M. Appeal No. 42791/2017 (for exemption)

Allowed, subject to all just exceptions.

C.M. Appeal No. 42790/2017

1. The petitioner/wife seeks review of the judgment dated February 17, 2017 (hereafter order under review or main judgment) of by this Court disposing of a matrimonial appeal- Mat. App. (FC) 67 of 2016. The question on which the petitioner seeks review is whether the Counselor’s report furnished in the course of mediation proceedings or the Mediator’s report in case of mediation, when the process fails, can be used by either of the parties during trial.

2. The parties here are disputants before the Family Court. The husband filed a petition claiming guardianship of the son born to the couple on December 02, 2009. The husband is Kenyan national who also holds a British passport. Their son too had a Kenyan as well as a British passport. The wife alleged having come to India because the husband wished the child to be brought up in an Indian environment with Indian values. In the connected litigation, the husband was given visitation rights, to meet his son at a shopping mall. He sought overnight custody of the son to enable the child to meaningfully interact with him and his parents. Before the Family Court on May 04, 2016, the counsel for the husband requested for the production of the child in Court to enable the Court to interact with the child, and ascertain his comfort level. Despite the wife’s opposition, the Court directed production of the child before it on May 07, 2016. Thereafter, a second order was passed on the same date directing that in the presence of the Principal Counselor attached to the Court, the husband be allowed to meet the child for an hour in the evening. It was in these circumstances that the wife preferred an appeal (Mat. App. (FC) No. 67/2017) impugning the first order dated May 04 2016, which directed the child to be produced in Court on May 07, 2016.

3. On May 06, 2016, the Division Bench stayed the direction requiring production of the child in Court. The Division Bench recorded the wife’s fear that the husband might remove the child from India, The Court proceeded to note that as according to the wife, the son’s Kenyan passport had been lost; the husband was required to apply afresh for a new passport, which, when issued was to be given over to the Family Court, in guardianship proceedings.

4. On May 11, 2016, the Court interacted with the child and made observations about its reflections in the order. It then recorded as follows:

“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.

8. The respondent before us is a Kenyan citizen who has flown to India along with his parents for monthly weekend visitation with the child of the parties. They are present in India today for this reason. It appears to us that efforts for negotiated settlement deserve to be encouraged.

9. With the consent of parties, it is directed as follows:

(i) The parties shall appear before Ms. Sadhana Ramachandran, learned Mediator in SAMADHAN-Delhi High Court Mediation and Conciliation Centre on 9th May, 2016 at 2:30 p.m.

(ii) It shall be open for the learned Mediator to join any other person or relative of the parties, as may be deemed necessary, for a holistic and effective mediation.

(iii) In case, the respondent or any of his relative are not available in India, it shall be open for the learned Mediator to join them by any electronic mode of communication including Skype, Video Conferencing, etc. at the cost of the respondent.

(iv) It shall also be open for the learned Mediator to meet the child at any place, as may be deemed convenient to h