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2019 (2) TMI 1968 - SC - Indian LawsSeeking injunction to restrain the Appellant from removing Aditya from the custody of the Respondent - filing of Guardianship Petition praying inter alia that he be declared the legal Guardian of Aditya and be given his permanent custody - Aditya holds Kenyan as well as British passport - HELD THAT:- In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged to give report, inter alia, relating to home environment of the parties concerned, their personalities and their relationship with the child and/or children in order to assist the Judge in deciding the question of guardianship of any child or children. The intention is clear that the normal principle of confidentiality will not apply in matters concerning custody or guardianship issues and the Court, in the best interest of the child, must be equipped with all the material touching upon relevant issues in order to render complete justice. This departure from confidentially is consistent with the underlined theme of the Act in general and Section 12 in particular. Once there is a clear exception in favour of categories stated therein, principles in any other forms of mediation/conciliation or other modes of Alternative Dispute Resolution regarding confidentiality cannot be imported. The effect of such exception cannot be diluted or nullified. There is, however, one aspect which must also be considered and that is who is the "Counsellor" within the meaning of Rule 8 and whether the Counsellor who assisted the court in the present matter comes within the four corners of said provision. It is true that Under Section 6 the counsellors are appointed by the State Government in consultation with the High Court. It is also true that the Counsellor in the present case was not the one who was appointed in terms of Section 6 but was appointed by a committee of the High Court and her assistance had been requested for in connection with many matters - The report given by the Counsellor in the present case cannot, therefore, be eschewed from consideration. It is noteworthy that there was absolutely nothing against the Counsellor and in the judgment under appeal, the High Court went on to observe that the Counsellor was well experienced and known for her commitment and sincerity to secure a settlement which would be satisfactory to all. There are no reason why the reports in the present case, be kept out of consideration. Appeal allowed - decided in favor of appellant.
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