SMRITI MADAN KANSAGRA Vs. PERRY KANSAGRA

JUDGEMENT

(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. (F.C.) 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) 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.