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MAT. APP (F.C.) 67 of 2016J.Pradeep NandrajogSMRITI MADAN KANSAGRA vs PERRY KANSAGRAChild Custody

Child has Right to Get Love from both Parents. Good Attitude of both Parents

(1) There can be no quarrel with the proposition that mediation proceedings are confidential proceedings and anything disclosed, discussed or proposed by the parties before the mediator cannot be recorded, much less divulged. The reason being that very often during mediations, offers, counter offers and proposals are made. The ethos of mediation would bar disclosure of specified communications and writings associated with mediation. Parties are encouraged during mediation to engage in honest discussions as regards their problems and in matrimonial disputes these honest discussions many a time give rise to a better understanding between the couple. Such an approach encourages a forget and forgive attitude to be formed by the parties. If either spouse is under an apprehension that the well-meant deliberations might subsequently be used against them it would hamper an unreserved consideration of their problems. The atmosphere of mutual trust during mediation warrants complete confidentiality.

(2) In the instant case, what has been taken on record during mediation proceedings is the report of the Child Counselor and the mediator, which we find are reports commending the good attitude of both parents who, unlike many other couples, are not using the child as a tool to take revenge against the other. As noted above, the interaction by the previous Division Bench with the child has been recorded in the order dated May 11, 2016 i.e. the child being equally comfortable with both parents and having a desire to spend quality time with not only his mother and relatives from the maternal side but even with the father and relatives from the paternal side. Such reports are a neutral evaluation of expert opinion to a Court to guide the Court as to what orders need to be passed in the best interest of the child. These reports are not confidential communications of the parties.

(3) Having answered the issue which incidentally arose, and noting that otherwise the appeal has been rendered infructuous, we terminate further proceedings in the appeal inasmuch as no orders are now warranted to be passed in the appeal.

(4) The learned Judge Family Court would consider granting over night interim custody to the respondent when he is in India by imposing such terms and conditions which would ensure that the child is not removed from the territory of India. The issue concerning the appellant claiming that she has lost the Kenyan passport of the child and a fresh passport being issued in the name of the child would also be looked into by the learned Judge Family Court.