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Perry Kansagra v. Smriti Madan Kansagra

Civil Appeal · 2019 INSC 215Decided 15 Feb 2019
Civil Appeal No. 1694 of 2019
Justice Uday Umesh Lalit · Justice Abhay Manohar Sapre

Background

Perry Kansagra (a Kenyan/British citizen) and Smriti Madan Kansagra (an Indian citizen) married in 2007 and had a son, Aditya, who ended up living in India with his mother while a guardianship dispute proceeded in the Delhi High Court and Family Court. As part of a court-ordered mediation attempt, a court-appointed Mediator and a child Counsellor interacted with the child and filed reports touching on his wellbeing and attachment to each parent. A Delhi High Court Division Bench initially held these reports could be considered by the Family Court, but on a review petition by the mother, a different Division Bench reversed that and held the reports must be disregarded as confidential mediation material. The father appealed to the Supreme Court.

Decision Breakdown

The Supreme Court held that while ordinary mediation communications between disputing parties are confidential and cannot be used against them, a child counsellor's or mediator's report specifically describing a child's wellbeing, behaviour, and relationship with each parent is different: it is a neutral, expert assessment meant to help the court determine the child's best interest under the parens patriae doctrine, not a disclosure of either parent's private settlement positions. The Court relied on Section 12 of the Family Courts Act, 1984, which carves out an exception to confidentiality for exactly this kind of welfare-related information, and held it did not matter that the particular counsellor had not been formally appointed under Section 6, since there was no dispute about her competence and both parties and the High Court knew of her involvement. The Court therefore allowed the appeal, set aside the High Court's review judgment, and restored the earlier judgment holding that such reports can be taken into account by the Family Court while deciding the guardianship case on its merits.

Lesson Learnt

In child custody and guardianship disputes, confidentiality rules that protect parents' settlement talks during mediation do not extend to a child welfare expert's independent assessment of the child: such reports exist precisely to help the court serve the child's best interests and can be placed before the deciding court, even though the underlying mediation itself failed.

Official source (sci.gov.in)View Judgment (PDF)

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