Nitin Telhalkar v. Sanjyot Telhalkar

906. MCA 134-2024.docx RMA / ATU IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE CIVIL APPELLATE JURISDICTION JURISDICTION MISC.

VERSUS

The State of Maharashtra & Anr... Respondents....................  Mr. Amey S. Ajgaonkar for Applicant  Mr. Ashok S. Gawai, AGP for State  Mr. Jayesh Gawde for Respondent No. 2................… CORAM: MILIND N. JADHAV, J. DATE: SEPTEMBER 25, 2024 JUDGMENT:

1. Heard Mr. Ajgaonkar, learned Advocate for Applicant, Mr. Gawde, learned Advocate for Respondent No. 2 and Mr. Gawai, learned AGP for State.

2. At the outset, Mr. Ajgaonkar would draw my attention to prayer clause (B) of the Misc. Civil Application (MCA). He would submit that he has been appointed through Legal Aid to espouse the cause of Applicant - wife. He would submit that Applicant is residing in Kamothe near Panvel and therefore the correct jurisdictional Court for seeking transfer of Marriage Petition would be the Court of Civil Judge Senior Division at Panvel. He would submit that inadvertently when the MCA has been filed, in prayer clause (B) transfer is sought to the Family Court at Panvel. However, there is no Family Court at Panvel but there is Family Court at Belapur which is jurisdictionally a different Court. In that view of the matter, he seeks leave to amend the prayer clause (B) to amend the Application in that respect. Leave as prayed for is granted. Amendment is permitted to be carried out forthwith in the Court itself. Re-verification stands dispensed with in that view of the matter.

3. Applicant is the wife who seeks transfer of Marriage Petition No. 71/2016 filed by Respondent - husband under Section 9 of the Hindu Marriage Act before the Civil Judge Senior Division, Vasai, Palghar to the Civil Judge Senior Division, Panvel.

4. Applicant is residing in Kamote which is in Panvel. Respondent is a resident of Vasai. Apart from proximity of distance between the two destinations, it is seen that if the Applicant who is 53 years old and and is required to undertake the travel from Panvel to Vasai after taking break journey even if she has to travel by train or by road, she would encounter immense hardship. This Court is aware of the fact of travelling by local train in the city of Mumbai to travel the aforesaid distance between Panvel and Vasai, as also by road. Considering the difficulty that would be encountered by the Applicant and the imprimatur of the Supreme Court where convenience of the Applicant - wife will have to be looked into by the Court while considering such an Application for transfer, the hardship of the Applicant - wife is evident. It is stated in the Petition that there is an outstanding amount of Rs. 2.28 lacs due and payable to the Applicant. I am informed that in the interregnum certain cheques were paid but some of them were dishonoured. Be that as it may, it appears there is outstanding arrears. This also adds to the difficulty and hardship of the Applicant - wife. That apart medical exigency expressed by Applicant in paragraph No. 15 is also seen and considered by the Court. Further Applicant wife has filed D.V. Act proceedings which is pending in the Court of J.M.F.C. Panvel.

5. PER CONTRA, Mr. Gawde, learned Advocate for Respondent No. 2 - husband has drawn my attention to the affidavit in reply dated 14.08.2024 and would contend that all objections against allowing the MCA are stated therein. He would submit that mother of Respondent is about 80 years old and for the last several years suffering from paralysis and he is required to take care of her daily needs. He would submit that mother of Respondent is also having hearing deficiency which requires Respondent to take care of her and in the event if Marriage Petition is transferred out of Vasai, it would be difficult for Respondent to attend the matter in such a precarious condition. These are the only principal grounds of objection that can be seen from the affidavit in reply. All other grounds in the affidavit in reply are qua merits of the case between the parties relating to their marriage.

6. After hearing Mr. Ajgaonkar and Mr. Gawai, learned Advocates appearing for the respective parties, I am of the clear opinion that the hardship that would be encountered by the Applicant - wife in this case would far outweigh the submissions made on behalf of Respondent. Whenever Application for transfer of the proceedings is required to be considered, the imprimatur of the Supreme Court in the case of N.C.V Aishwarya Vs. A.S. Saravana Karthik Sha[1] and more specifically paragraph No. 9 thereof requires the Court to consider an array of factors impinging upon the hardship to the wife and more specifically in the prevailing socio-economic paradigm in the Indian Society, it is the wife's convenience which must be looked at while considering such a transfer. Considering that wife will have to undertake the journey between the two destinations to attend the proceedings at Vasai and back, it would undoubtedly expose her to severe hardship unlike that would be encountered by the Respondent husband if Respondent is required to travel to Panvel. Respondent has also derelicted in not adhering to the orders passed by the Court and is admittedly in arrears of a substantial amount which adds to the hardship of the Applicant. Though that may not be a reason to be considered for transfer but still this non-payment of maintenance encounters severe difficulty to the wife who has been granted the said amount by virtue of orders passed by the Court. That apart, considering that the wife has also filed D.V. Act proceedings before the Court of JMFC, Panvel, it would be inappropriate to consider the request made by Respondent as stated in his affidavit in reply. In that view of the matter, I am not inclined to accede to the request made by Respondent and therefore present MCA deserves to be allowed in terms of prayer clause (B) which reads thus:- "(B) To pass an order or direction to stay and transfer the proceedings arising out of Marriage Petition No. 71/2016, Senior Division, Vasai. Mr. Nitin Telhalkar Vs. Mrs. Sanjyot Telhalkar filed by the Respondent herein under Section 9 of the Hindu Marriage Act, 1955 pending before the Hon'ble Principal Civil Judge Senior Division Court at Vasai, Palghar to be transferred to Civil Judge Senior Division at Panvel, Maharashtra."

7. Both the concerned Courts shall take cognizance of a server copy of this order and shall not insist on a certified copy of the order and act accordingly for transfer and re-registration of the proceedings as expeditiously as possible and in any event within a period of two weeks form the date of presentation of a server copy of this order to the Courts by the Advocates for the parties.

8. Considering that the Marriage Petition is of the year 2016 and eight years have been passed, learned Civil Judge Senior Division at Panvel is directed by this Court to expedite hearing of the Marriage Petition.

9. During the course of arguments, Mr. Gawde would submit that both the parties are at advanced age rather have crossed their middle age, hence it would be prudent if the parties are referred for mediation since there is a realistic chance and possibility that the parties may reconcile. If that is the position, it would undoubtedly be in the interest of the parties. In view thereof, Respondent will be entitled to make an appropriate Application for seeking help of mediation before the concerned transferee Court and if any such Application is made, the same shall be considered by the said Court in accordance with law.

10. I would like to place on record my appreciation for Advocate Mr. Ajgaonkar being appointed through Legal Aid for the Applicant who has ably assisted this Court. The Legal Services Authority shall make over the remuneration to him as per rules within a period of two weeks from today on presentation of a server copy of this order.

11. At this stage, Mr. Ajgaonkar informs me that under the Government Resolution (for short "GR") issued by the State Government pertaining to Honorarium (Professional Fees) payable to the Advocates on the Legal Aid Panel, the same stipulates different rates and categories of fee Schedule to be paid to the empanelled Advocate who is appointed through Legal Aid depending upon the trajectory and journey of the matter on the dates before the Court until it is disposed of. He would submit that the said GR clearly stipulates fees to be paid for effective and non-effective hearing before the Court with a maximum ceiling fee payable in respect of the cases heard and disposed of by the Court. However, he would submit that after the matter is over the Legal Aid Department does not adhere to the aforesaid fee structure and infact pays a lumpsum amount of Rs. 6,000/- per case to the concerned empanelled Advocate.

12. At this stage, Mr. Bhujbal, learned Advocate sitting in the Court also interjects and seeks leave of the Court to address the Court on this issue, as this issue affects a large number of Advocates appointed through Legal Aid. This Court has permitted Mr. Bhujbal to address the Court. He has placed on record a Schedule of honorarium payable to the legal practitioners on the panel and others under Regulation 18(1) of the Maharashtra State Legal Services Authority Rules, 1998 to draw the attention of the Court to the issue raised by Mr. Ajgaonkar. He would submit that if the said chart / Schedule of fee is perused, it would be clear that fee of the Legal Aid Advocate is required to be paid as per the description of work and recommended fee Schedule stated therein. However, he would submit and join hands with Mr. Ajgaonkar to state that the said Schedule is not followed and fees are paid on a lumpsum basis at the rate of Rs. 6,000/- to the Advocate who completes the assignment of appearing after disposal of the matter for which they are appointed through Legal Aid. I have perused the Schedule placed before me.