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SMRITI MADAN KANSAGRA V. PERRY KANSAGRA, 28 OCT, 2020
FACTS
The parties to the case are individuals who were earlier married but have not fallen apart. The main question, in this case, is the custody of the son born to them on the 2nd of December 2009. The case is one that of a review by the mother of the child, the review petitioner. The wife alleged that the respondent wished for the child to be raised in an Indian environment with Indian values, so the child had been brought to India by her. Later on, being denied adequate visitation, the respondent was distressed and applied for the initial petition.
The parties were both residents of Kenya. The father is a Kenyan national but also holds a British passport. The son has both a Kenyan and British passport. The father travels to India every month for a visit with his child and is often accompanied by his parents, the child's grandparents. However, in related litigation, he was awarded very little time with his son at a public mall. Hence, he applied for a petition seeking overnight custody so he and his parents may spend some quality time with the child.
PROCEEDINGS OF THE CASE
The husband's attorney sought that the child is shown in court so that the Court may engage with him and determine his degree of comfort. This was not well received by the wife. However, the court asked for the son to be produced on a future date to help ascertain the relation with the father and the comfort of the child. On the same day, a second order was issued, mandating that the husband be permitted to meet the kid for an hour in the evening in the presence of the Court's Principal Counsellor. The wife appealed, and the order stayed. The wife’s fear that the husband might remove the child from India was considered, added to which she claimed that the child’s passport had been misplaced.
The husband was directed to apply for a new passport and hand over the same on received to the court until the guardianship proceedings. On the 11th of May, an interaction of the court with the child had been arranged.
PARTIES AGREE TO MEDIATION
Meanwhile, the parties expressed an interest in mediation for all the disputes between the two. The mediator, Ms Sadhana Ramachandran, was appointed by the court for the same. The parties had a series of meetings but failed to conclude. The Counselor then provided a report dated 22.07.2016, and the Court ruled on February 7, 2017, that the Counselor/Mediator's reports were not secret and would not be covered by the confidentiality bar.
In the argument for the review against the order, the counsel of the respondent set forth the following reasoning:
“A mediator, who is bound by rules of confidentiality and merely interacts with disputant parties with the aim of narrowing differences, using tools such as neutral language, elimination of antagonistic perceptions, ultimately strives to facilitate a negotiated amicable solution, which the parties arrive at. She or he does not in any manner play a pro-active role in the process, or decide for the parties. All of this is possible because of the parties' implicit confidence in the mediator and the veil of confidentiality that can never be lifted.”
JUDGMENT AND ANALYSIS
When a mediator decides to engage the counsellor's help to investigate the parties' sensitivities, viewpoints, and attitudes in such instances, she is enlisting knowledge that is specific to custody and guardianship matters. An overemphasis on procedural concerns in these cases can easily overshadow what is most important - namely, the child's wellbeing. This was the Court's primary concern, as indicated by the fact that it was mentioned explicitly in the main judgment's opening comments. This was the Court's primary concern, as indicated by the fact that it was mentioned explicitly in the main judgment's opening comments.
The case has three peculiar characteristics:
? The Court never gave the mediator the authority to execute powers that are vested in it by statute. The decision of the Court to include or exclude a counsellor is final and cannot be delegated.
? Because the mediator provided two reports—one to the Court and one to the parties in this case—the question of secrecy will be investigated. A mediator's role is unique; without question, she (or he) has professional training and competence to deal with issues involving intense and resentful conflict over marital issues, properties, shared household, temporary or permanent custody, and, in commercial matters, issues involving monetary and financial repercussions.
? The mediator was present for at least two sessions with the counsellor. The Court believes that this "joint" action is inappropriate. It can have unfavourable implications, mainly if the mediator and counsellor go ahead and provide their reports (as they did in this case). Finally, the mediator's and counsellor's reports were rejected. The reports may also not be the topic of discussion or disagreement. However, under the terms of the Family Courts Act, 1984, the Court's discretion to take appropriate action otherwise was retained and remained open. As a result, the motion for review was granted.
In conclusion, on child custody matters, the courts exempted the principle of confidentiality in mediation proceedings.
LINKS REFERRED:
https://www.scconline.com/blog/post/tag/confidentiality/
https://indiankanoon.org/doc/177663259/
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, or Religion, Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre Foundation shall not be responsible for any errors caused due to human error or otherwise.
- FACTS
- PROCEEDINGS
- JUDGEMENT AND ANALYSIS
