Report No. 69
Privilege of Family Counsellors
We have so far dealt with existing provisions of the Act which concern privileges and disabilities in the field of evidence. Before we part with this topic it is necessary to consider one matter on which there is no provision creating a privilege or disability in the present Act. The matter is an important one deserving consideration, having regard to the current thinking on the subject of disputes arising in family law. So far as the law of evidence is concerned, what we have in mind is the protection from disclosure of statements made to a person appointed by the Court for the purpose of effecting reconciliation between the parties to a dispute concerning the family. In order to appreciate the need for such a provision, it is necessary to give a short background of certain trends in thinking and legislative developments on the subject.
71.2. Disputes concerning the family.-
It is now being increasingly realised that disputes relating to family law-in particular, matrimonial proceedings-require a different approach from the conventional method adopted in relation to other disputes. The court does not take any active part in ordinary litigation. But family disputes stand on a different footing. Such disputes concern not merely the immediate parties thereto, but the children and-taking a wider view-society as a whole. It is for the good of the society that such disputes ought to be prevented from arising, as far as possible; but if unfortunately a dispute does arise, it is in the interest of society that its resolution should be effected with as little acrimony as possible and after bearing in mind the wider interest to which we have made a reference.
In this connection, it is pertinent to refer to the Report of the Law Commission1 on the Code of Civil Procedure. We stressed in that Report the need for certain special procedural provisions in relation to disputes in the field of family law. Our recommendation has, in substance, been implemented by the insertion of a new Order-Order 32A-in the Code of Civil Procedure as recently amended. We recommend, inter alia, a statutory provision calling upon the Court to make efforts at reconciliation. That has also been implemented by the insertion of an appropriate provision in the Code.
1. 54th Report of the Law Commission (Code of Civil Procedure, 1908, proposed order 32).
71.3. Relevance to the law of evidence.-
In order that the amended provision may be properly carried out, it may be necessary for the Court to appoint counsellors who could give their advice to the parties. For brevity's sake, we shall describe such persons as family counsellors. Such counsellors would find their task smooth if communications made during the course of the proceedings held by them are protected from disclosure. That is how the matter becomes relevant to the field of the law of evidence.
71.4. No provision in existing law.-
The existing law of evidence does not meet the situation. Communications made by one spouse to another are privileged under section 122; but that section is based on the consideration of maintenance of marital confidence between married person, and is confined to their mutual communications. What we have in mind is a slightly different consideration, namely, the social interest in the preservation of a marriage which, through it threatens to come to an end, could yet be saved by wise and careful action on behalf of the society, of which the family counsellor is a representative.
And the communications for which the privilege is intended need not take place between spouses. It is in the interests of society generally that the spouse who is willing to confide in the family counsellor about his conduct should be encouraged to do so. The proceedings for reconciliation may then have a reasonable prospect of success, or at least the spouse making such communications will have the satisfaction that the truth is known to one person who is neutral and impartial and who is acting for the benefit of both the parties. When we speak of "spouses", we do not imply only matrimonial disputes.
71.5. Whose privilege.-
If the approach which we have outlined above is to be implemented, a question of detail arises, namely, should be privilege be that of the communicating spouse, or should be privilege be that of the family counsellor? On this question, much can be said on both sides. The grant of a privilege to the spouse would be in symmetry with the provisions of the Act concerning legal advisers. But it can be said, on the other side, that the position of the family counsellor is not totally similar to that of a legal professional adviser.
The proposed privilege is to be created in the interest of society, in order that the family counsellor may function effectively and the privilege should exist irrespective of the fact that the family counsellor is or is not engaged by the party. On this reasoning, the privilege should be of the family counsellor. The communication should be protected, because society has an interest in the preservation of marriage. We think that on the whole the privilege should be of the family counsellor.
71.6. But the privilege should not apply to proceedings against the counselo.-where the proceedings are based on a cause of action arising from matters concerning the action of the counsellor.
71.7. English law-privilege of parties.-
It would be of interest to note that in England, a privilege1 regarding such communications seems to be recognised,-though the privilege is of the spouse. Thus, in McTaggart v. McTaggart, 1949 Probate 94: (1948) 2 All ER 754, probation officer was obliged to give evidence concerning that which had passed at an interview between the parties, at which he had been present.
The spouses each gave evidence about this interview, and the Court of Appeal accordingly, held that such privilege as attached to their statements to the probation officer had been waived; but the Court had no doubt that the statements were privileged, although the privilege was that of the parties. In Mole v. Mole, 1951 Probate 21: (1950) 2 All ER 328; see also Pais v. Pais, 1971 Probate 119: (1970) 3 All ER 491, it was decided that the privilege existed even when only one of the parties had enlisted the services of a probation officer, so that he could not give evidence about a letter written to him by the other party without that person's consent.
It was emphasised that a similar privilege would apply when one or other of the parties approached a doctor, clergyman or marriage guidance counsellor with regard to his or her matrimonial differences and there was said to be a tacit understanding that negotiations were to be without prejudice in such cases. In Henley v. Henley, 1955 Probate 202: (1955) 1 All ER 590, the initiative in endeavouring to effect a reconciliation was taken by a clergyman, a friend of the parties, and it was held that the privilege attached to statements made to him. In Pais v. Pais, (1970) 3 All ER 491, it was observed after referring to Cross's opinion that the privilege should be of the adviser-
"It may be that it would be very convenient and just that it should be the law, but in my judgment it is not the law of England that there is a privilege attaching to a priest or other professional man, or to any other marriage guidance counsellor as such.2 The privilege of communications between lawyer and client is the privilege of the client, not the privilege of the lawyer. So, too, the privilege of communications between priest and spouse, and I am dealing only with the case of conciliation, is the privilege of the spouse not the priest."
1. Cross Evidence, (1974), p. 262.
2. Manchester and Whelton Marital Conciliator, (1974) 23 CLO 339, 361, 362, 364, 368.
71.8. Other countries.-
This is the English common law. In some countries, the matter has been dealt with by statute. There was, for example, in the Australia (Matrimonial Causes) Act, 1959, section 12(1) (recently re-enacted), a provision that a marriage guidance counsellor is neither competent nor compellable as a witness in respect of communications made to him in that capacity. It appears that the privilege has been recognised in New Zealand and in the New York State. It has also been enacted in regard to the Los Angeles County Family Court, and in the Rules in force in New Jersey.
71.9. New Jersey Rule.-
The New Jersey Rule on the subject reads-1
"28A-1. Any communication between a marriage counsellor and the person or persons counselled shall be confidential and its secrecy preserved. This privilege shall not be subject to waiver, except where the marriage counsellor is a party defendant to a civil, criminal or disciplinary action arising from such counselling, in which case, the waiver shall be limited to that section."
1. New Jersey Rules of Evidence, rule 28A-1 (Effective January 10, 1969).
71.10. Non-judicial counsellors.-
In the above discussion, we have mentioned counsellors appointed by the court. For the present, we do not recommend that the protection proposed by us be extended to marriage guidance counsellors who are consulted privately by the parties in connection with disputes concerning the family. In India, such counselling is nascent institution. Some such privilege may be needed even for private counsellors, if they are to function effectively. When such institutions take root, it will be necessary to deal with the matter.
A day might come when counselling and conciliation will be available not only to spouses who approach the court, but also to married people who seek to avoid that result. It is vital to the preservation of the social fabric, if it is to withstand the on slaughts that are bound to be made by the winds of "modernisation", that there is available disinterested and competent advise. The process of divorce is merely a remedial one in the legal sense, and not a preventive one. We hope that preventive social therapy to avoid disputes will be available.
71.11. Recommendations as to financial provisions and custody.-
Although the amendment recommended by us will be primarily important where the reconciliation relates to the main issue in matrimonial proceedings, it may not be improper to point out that there might be many other issues in respect of which reconciliation or common agreement could be worked for. Even where the parties cannot agree to resume their married life, it might well be advisable to ensure that as for as possible the question of financial provisions and custody of children, including, in particular, the crucial question of access to children are settled by agreement.
It is not to be overlooked that though orders on these matters are regarded as incidental orders, it is such matters that constitute the heart of the real dispute. From the sociological point of view, they are much more important than the dissolution of the marriage or other relief prayed for, however important the latter may be to the legal eye. Where children are concerned, the court may like to direct and supervise meaningful negotiations and to review all arrangements so as to ensure that the rights of children are protected. Access to a child is an intrinsic aspect of arrangements or dispositions made for the child's custody, care and upbringing. The purpose of access is to recognise a child's interest in a continuing relationship with each parent.
In the light of the above discussion, we recommend the insertion of a new section on the following lines:-
"132A. (1) No communication between a family counsellor as such and the person or persons counselled shall be compelled or.permitted to be disclosed.
(2) The provisions of sub-section (1) shall ,not apply where the family counsellor is a party to a civil or criminal proceeding arising from such counselling.
Explanation 1.-In this section, "a family counsellor" means a person appointed by the court for the purpose of effecting reconciliation between parties to a proceeding wherein the court is empowered or required by law to appoint such a person.
Explanation 2.-This section applies to the proceedings referred to in Explanation 1 as well as to any other proceedings."