Case Note & Summary
The applicant, Sanjyot Nitin Telharkar, wife, filed a Misc. Civil Application under the Bombay High Court's civil appellate jurisdiction seeking transfer of Marriage Petition No. 71/2016 filed by her husband under Section 9 of the Hindu Marriage Act, 1955, from the Court of Civil Judge Senior Division, Vasai, Palghar to the Court of Civil Judge Senior Division, Panvel. The applicant resided in Kamothe, Panvel, and contended that traveling from Panvel to Vasai would cause immense hardship due to the distance and the need for a break journey by train or road. She was 53 years old and had medical exigencies. Additionally, there was an outstanding maintenance amount of Rs. 2.28 lacs due to her, and she had filed proceedings under the Domestic Violence Act before the JMFC, Panvel. The respondent husband opposed the transfer, citing that his 80-year-old mother suffered from paralysis and hearing deficiency and required his care. The court, after hearing the parties, held that the hardship to the wife far outweighed the submissions of the respondent. Relying on the Supreme Court's decision in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, the court emphasized that in transfer applications, the wife's convenience must be given primacy. The court noted the non-payment of maintenance and the pendency of DV Act proceedings at Panvel as additional factors. The court allowed the transfer and directed the transferee court to expedite the hearing. The court also addressed the issue of remuneration for legal aid advocates, noting that the prescribed fee schedule under the Maharashtra State Legal Services Authority Rules, 1998 was not being followed, and directed the Legal Services Authority to pay the advocate as per rules within two weeks.
Headnote
A) Family Law - Transfer of Proceedings - Convenience of Wife - Hindu Marriage Act, 1955, Section 9 - The court considered an application by the wife for transfer of a marriage petition from Vasai to Panvel. The wife resided in Panvel and would face immense hardship traveling to Vasai, while the husband's objections regarding his elderly mother's care were outweighed. The court held that the wife's convenience must be given primacy, following the principle in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, and allowed the transfer. (Paras 4-6) B) Legal Aid - Remuneration of Legal Aid Advocates - Maharashtra State Legal Services Authority Rules, 1998, Regulation 18(1) - The court took note of the grievance that legal aid advocates are paid a lumpsum of Rs. 6,000/- per case instead of the prescribed fee schedule. The court directed the Legal Services Authority to pay remuneration as per rules within two weeks. (Paras 10-12)
Issue of Consideration
Whether the Marriage Petition No. 71/2016 pending before Civil Judge Senior Division, Vasai should be transferred to Civil Judge Senior Division, Panvel on the ground of convenience of the wife-applicant.
Final Decision
The court allowed the Misc. Civil Application and ordered the transfer of Marriage Petition No. 71/2016 from the Court of Civil Judge Senior Division, Vasai to the Court of Civil Judge Senior Division, Panvel. The transferee court was directed to expedite the hearing. The court also directed the Legal Services Authority to pay the legal aid advocate's remuneration as per rules within two weeks.
Law Points
- Convenience of wife is paramount in transfer petitions
- hardship to wife outweighs hardship to husband
- non-payment of maintenance adds to hardship
- pendency of DV Act proceedings at transferee court is relevant
