What is a Transfer Petition?

The Supreme Court of India is conferred with the responsibility to do complete justice. In the line of such duty, it has also got the jurisdiction to transfer a case pending either before a High Court or any other court (even at the investigation stage) in one state to a jurisdictional court of another state within India. The Supreme Court invokes the transfer jurisdiction from the Constitution of India, the Supreme Court Rules, the Code of Civil Procedure and the Criminal Procedure Code. Depending on the nature of the case, civil or criminal, a petition is filed under the relevant statute. When it comes to civil matrimonial disputes the petition is filed under section 25 of the Code of Civil Procedures. Criminal matrimonial disputes are transferred by the Court exercising powers under section 406 of the Code of Criminal Procedure. These sections enable the Supreme Court to transfer any suit, appeal, complaint, FIR or other proceedings from a High Court or other civil court, session court, or magisterial court in one state to a High Court or other civil court, session court, magisterial court of competent jurisdiction in any other state.

What is a matrimonial dispute?

In plain English matrimonial means; relating to marriage or married people. As such, cases filed by couples against each other like restitution of conjugal rights, divorce, maintenance, custody of child, domestic violence, case u/s 498A IPC etc., come under the category of matrimonial dispute. It is often seen that couples file cases against each other at the place of their convenience and so is done most of the time with malafide intention to harass the partner.

Guiding Principle behind the transfer of a matrimonial case.

In Dr. Subramaniam Swamy v. Radhakrishna Hegde (1990) 1 SCC 4, the Supreme Court held that the paramount consideration for transfer of a case under section 25 of the code of Civil Procedure must be the requirement of justice. It was held that the mere convenience of the parties of anyone of them may not be enough for the exercise of power, but it must also be shown that a trial in the chosen forum will result in denial of justice. The Court further held that if the ends of justice so demand and the transfer of the case is imperative, there should be no hesitation to transfer the case. The right of the dominus litis[1] to choose the forum and consideration of the plaintiff’s convenience etc. cannot eclipse the requirement of justice. Justice must be done at all costs, if necessary, by the transfer of the case from one court to another.[2]

Recently in Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150 the Supreme Court directed that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Orders incorporating such safeguards may be sent along with the summons. The safeguards can be:

• Availability of videoconferencing facility.
• Availability of legal aid service.
• Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC.
• E-mail address/phone number, if any, at which litigant from outstation may communicate.

Supreme Court and Transfer of Matrimonial Cases

The civil transfer jurisdiction of the Supreme Court has been most often invoked in matrimonial matters, and usually at the instance of the wife. When the husband and wife are living separately and the husband files a petition for divorce or institutes other proceedings under the law relating to marriage and divorce at the place where he is residing, which is usually the place where the parties last resided together, the wife, who has often returned to her parental home, moves for transfer either on the ground that she cannot afford to travel or that she cannot leave her child behind or that she faces threats when she goes to defend the proceedings. The court invariably takes a sympathetic view toward the wife’s plea for transfer, but this is not always the case.[3]

Usually, it is seen that settlement between parties during the pendency of the transfer petition is encouraged by the Supreme Court but only where the parties cooperate with the efforts of the Hon’ble Court.[4]

Grounds or Circumstances for Transfer of a Divorce Case

When is a transfer petition filed by the wife allowed?

In the case of Anuradha Samir Vennangot v. Mohandas Samir Vennangot, (2015) 16 SCC 596 the husband filed a divorce petition before a jurisdictional court in Mumbai through the wife was residing in Hyderabad. The wife moved the Transfer Petition before the Supreme Court for transferring the divorce case to court in Hyderabad. The Supreme Court at the request of the counsel of the parties referred the matter for mediation between the parties. In mediation, a settlement was arrived between the parties for mutual divorce and the husband will pay one-time Rs. 12,50,000/- as alimony and final settlement at the time of passing of decree of divorce by mutual consent at Mumbai. Through one of the Misc. Application filed before the Supreme Court and at Mumbai Court, the Supreme Court got to know that the wife was suffering from a life-threatening disease and urgently requires funds for her medical treatment and that she has to depend on herself for proper care. The Supreme Court invoked provisions and principles of Contract law and Hindu laws and held that the settlement reached between the parties, which essentially is a contract, is not out of free consent from the wife’s side as, as per the Court, the wife agreed for divorce by mutual consent on the condition that the respondent-husband will pay her Rs 12,50,000 as a full and final settlement which will be useful in her treatment of breast cancer. The Court held that under such circumstances the consent of the wife for mutual divorce in lieu of money is not a valid contract, hence the court refused to accept such a settlement. Instead, the court invoked the “pre-existing duty doctrine” against the husband holding that it is his duty to take care of the health and safety of the wife and to provide facilities for her treatment. In its order the Supreme Court transferred the case to Hyderabad and directed the husband to pay the wife rupees five lacs for meeting her treatment expenses and once the wife is cured the Hyderabad court will decide the divorce case.

In Vimi Mathur v. Vikas Mathur, (2004) 13 SCC 435 the Supreme Court found it proper to transfer the matrimonial case filed in Ghaziabad by the husband to Patna as two other cases between the parties were already pending in Patna.

In Mona Aresh Goel v. Aresh Satya Goel, (2000) 9 SCC 255 the transfer petition was filed by the wife to transfer the divorce proceedings taken by the husband in Bombay to Delhi, where she now stays with her parents. The transfer petition averred that the wife has no independent income and that her parents are not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. She averred that she is twenty-two years old and cannot travel to and stay in Bombay alone for there is no one in Bombay with whom she can stay. The transfer petition was allowed.

In Annamma Abraham (Sherly) v. Abraham Jacob, (2000) 10 SCC 275 the wife had filed a transfer petition before the Supreme Court for transferring the divorce case filed by her husband at Jodhpur, Rajasthan to Pathanamthitta, Kerala. The husband opposed the transfer by submitting that he is serving in the defence forces and presently he is posted on the border in Rajasthan at Jaisalmer as such it would almost be impossible for him to come to Kerala and contest the litigation. The petitioner wife demonstrated that she is resident of the State of Kerala and presently she has been staying with her parents and gave various details in the transfer petition and shown how it is impossible for her to attend the Court at Jodhpur. The court allowed the transfer of the divorce case from Rajasthan to Kerala.

Also refer to: Rajwinder Kaur v. Balwinder Singh, (2003) 11 SCC 726; Mangla Patil Kale v. Sanjeev Kumar Kale, (2003) 10 SCC 280; Archana Rastogi v. Rakesh Rastogi, (2000) 10 SCC 350;

When transfer petition by the wife is dismissed?

In Anjali Brahmawar Chauhan v. Navin Chauhan, 2017 SCC OnLine SC 2020 at the instance of the wife the Supreme Court refused to transfer the divorce petition filed by the husband at Gautam buddha Nagar U.P. to Delhi in view of the availability of video conference facility.

In Gyanmati Yadav v. Ram Sagar Yadav, (2013) 14 SCC 621 the Supreme Court refused to transfer the matrimonial suit on the ground that the suit was decreed ex-parte and the application for setting it aside was also dismissed in default as the transfer petition had become infructuous.

In Kanagalakshmi v. A. Venkatesan, (2004) 13 SCC 405  transfer petition was filed by the wife seeking transfer of pending matrimonial dispute at Bandra, Mumbai to Tirunelveli, Tamil Nadu on the ground that it is difficult for her to travel from Tirunelveli to Mumbai to pursue her case. The husband in his reply stated that he is prepared to bear the expenses not only of the petitioner but also of her accompanying person both for travel and stay at Mumbai. On such assurance by the husband the Supreme Court rejected the transfer petition and directed the Family Court, Mumbai to dispose of the petition and applications for interim maintenance if any within six months from the receipt of the order of the Supreme Court and further directed the Family Court, Mumbai if possible, to cross-examine both the parties in regard to their affidavit on the same day.

In Gargi Konar v. Jagjeet Singh, (2005) 11 SCC 446 the transfer petition was filed by the wife for transfer of Matrimonial Suit Bhatinda, Punjab to Burdwan, West Bengal. The only ground made out in the transfer petition by the wife was that she is a helpless woman fully dependent upon her father and that her financial capacity is not much so that she can contest the proceedings in Bhatinda in the State of Punjab. The Court opined that same is not a ground for transfer at all. Instead directed the husband to pay for her and her companions, to-and-fro and stay, expenses on every occasion on which she is required to travel.

In Kalpana Devi Prakash Thakur v. Dr. Devi Prakash Thakur (1996) 11 SCC 96, the court is allowed the wife plea for transfer of the matrimonial proceedings from Mumbai to Palanpur, Gujarat taking into account that: (1) the husband was medical practitioner and his absence from Mumbai would cause inconvenience to his patients; (2) his old and ailing mother who lived with him needed regular medical check ups and constant care; (3) the witnesses were principally from Mumbai; (4) the wife had relatives in Mumbai with whom she could stay whenever she went there for the case; (5) the husband was ready to bear the expenses of travel and also travelling expenses of the escort;  (6) Palanpur was well connected to Mumbai by train.

 

The middle path:

In Anju v. Pramod Kumar, (2005) 11 SCC 186 two counter transfer petitions were filed, one by the wife and the second by the husband. The wife approached the Supreme Court praying for the transfer of the case instituted by the husband at Agra, U.P. to Nainital, Uttaranchal. The husband prayed for a transfer case instituted by the wife at Nainital (Uttaranchal) to Agra. Both parties expressed apprehension to go to the other place thus the Court deemed it appropriate if the cases are tried at a neutral place, Bareilly (U.P.).

In Deepika v. Maruthi Kathare, (2005) 11 SCC 433, the wife had filed transfer petition before the Supreme Court for transferring the divorce case filed by the husband at Chennai to Hubli, Karnatka. The husband did not oppose the petition but requested the Court that case may not be transferred to Hubli rather to any adjacent district because he apprehends danger to his life and bodily harm and demonstrated past incidence in his reply. The court transferred the case to another nearby district Gadak, Karnatka and not to Hubli as was prayed by the wife.

Also refer to: Laxmi Devi v. Rajesh Kumar Sanadhya, (2002) 10 SCC 693

Final Settlement between the parties under Article 142 of the Constitution of India

A constitutional bench (5 Judges) of the Supreme Court in Shilpa Shailesh v. Varun Sreenivasan 2023 SCC OnLine SC 544 ruled that under Article 142(1) of the Constitution, it can modify procedural and substantive laws for ensuring justice, balancing public policy and legal provisions. The Court has the power to grant a divorce by mutual consent, exercising discretion based on case-specific facts, legal considerations, and the fulfillment of statutory conditions. The judgment affirmed that the Court’s power under Section 13-B of the Hindu Marriage Act is not restricted, allowing it to grant a divorce by mutual consent if the mandatory waiting period of one and a half years post-separation is met, and the parties have made a considered decision to end the marriage.

In Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220 the Supreme Court the court exercised its powers under Article 142 to do complete justice in a Transfer Petition and directed that the cases pending between the parties are disposed of in view of the settlement between the parties; and all pending cases arising out of the matrimonial proceedings including the case of restitution of conjugal rights and guardianship case between the parties shall stand disposed of and consigned to the records in the respective courts.

In Sneha Parikh v. Manit Kumar, (2018) 4 SCC 501 the Supreme by exercising its powers under Article 142 of the Constitution to do complete justice accepted the settlement between the husband and wife arrived at the Supreme Court Mediation Centre and granted them divorce by mutual consent and also quashed the FIR lodged by the wife criminal case u/s 498A, 406 and 506 etc. IPC.

In a case of Sangeeta v. Suresh Kumar, (2000) 9 SCC 442 parties who were married and had girl child developed some misunderstandings on account of interference by their respective parents in their matrimonial life and that resulted in strained relations developing between them. The strained relations led to the filing of a divorce petition husband in Delhi. The wife filed a petition for maintenance at Baroda along with an application for interim maintenance and a criminal complaint against the husband and his family members for offences under Sections 498-A, 406 and 114 of the Indian Penal Code in Baroda. The wife filed a transfer petition before the hon’ble Court and in response to same the husband filed his counter affidavit stating therein that he was willing to withdraw the divorce petition, in case the wife was ready and willing to settle with him and restore marital life. The court saw a ray of hope in bringing about reconciliation between the parties and suggested to them to try and settle the disputes and bury their differences and start afresh their matrimonial life keeping in view the welfare and interest of their 4 years old girl child. The Hon’ble court adjourned the matter for some time to enable the parties to live together and parties made a genuine attempt to live together and resume their matrimonial life. Whereafter the Court asked the parties to be personally present themselves before the Court and state their intentions qua restoration of their married life. The parties agreed to withdraw their respective cases against each other and live together as a nuclear family and restore their married life. Thus, the Court instead of outrightly transferring the case, as requested by the wife, made a fruitful effort to restore a married life, saved a family and assured the welfare of a child. Also refer to: Davinder Kaur v. Manpreet Singh Ahluwalia, 2001 SCC OnLine SC 90

In Sandhya M. Khandelwal v. Manoj M. Khandelwal, (1998) 8 SCC 369 during the pendency of the Transfer Petition both the parties tried to settle their disputes and filed a joint petition incorporating the terms of the settlement before the Court voluntarily and keeping in mind the interests of both the parties and the minor son. The Court found that the terms of settlement are beneficial to the interests of both the parties and also the interests of the minor son. A prayer was also made before the Court that the divorce petition at Ajmer may be treated as a divorce petition by mutual consent and a decree of divorce be granted. In the facts of the case the Court found that such decree of divorce will be beneficial to the interests of both the parties and directed for a decree of divorce by treating the pending application at Ajmer as a mutual divorce application. The settlement between the parties was allowed including mutual divorce.

In Dipankar Debapriya Haldar v. Teesta Dipankar Haldar, 2021 SCC OnLine SC 295 also the Supreme Court instead of transferring the matter directly referred the same to the mediation centre and the parties were able to reach to settlement and the Supreme Court disposed the petition in terms of the settlement between the parties.

Also refer to: Anita Sabharwal v. Anil Sabharwal (1997) 11 SCC 490; Swati Verma v. Rajan Verma [(2004) 1 SCC 123; Naveen Kohli v. Neelu Kohli [(2006) 4 SCC 558 ; Aviral Bhatla v. Bhawna Bhatla, (2009) 3 SCC 448; Alok Mishra v. Garima Mishra, (2009) 12 SCC 270; Neeti Malviya v. Rakesh Malviya, (2010) 6 SCC 413; Payal Jindal v. A.K. Jindal, 1995 Supp (4) SCC 411; S.G. Rajgopalan Prabhu v. Veena, (2010) 12 SCC 537; Harpreet Singh Popli v. Manmeet Kaur Popli, (2010) 15 SCC 316; Harpreet Singh Popli v. Manmeet Kaur Popli, (2010) 15 SCC 316

Transfer of maintenance case

In Eluri Raji Reddy v. State of Delhi, (2004) 4 SCC 479 the Court transferred the maintenance case and criminal case instituted by the wife at Delhi to Andhra Pradesh. So was done on the Transfer Petition moved the husband. The Court found that marriage took place in Andhra Pradesh (AP)  and wife stayed with the husband in AP, her parents reside in AP and the divorce petition is also pending in AP as such AP would more appropriate place for the trial.

Transfer of a case of restitution of conjugal rights

In Seema v. Rakesh Kumar, (2000) 9 SCC 271 the wife petitioned for transferring the case of restitution of conjugal rights file by the husband in court at Ghaziabad U.P.) to Jagadhri (Haryana) as she was residing at Jagadhri with her father and she had no financial means to defend herself in Ghaziabad except some support from her father. She also had filed maintenance suit at Jagadhri. The wife was also not getting any maintenance from husband. The transfer petition was allowed by the Supreme Court and case of restitution of conjugal rights was transferred from Ghaziabad to Jagadhri.  

In Shruti Kaushal Bisht v. Kaushal R. Bisht, (2020) 10 SCC 725 While the first transfer petition was by the wife seeking transfer of the divorce petition filed by the husband in the Family Court at Pune, Maharashtra, the second transfer petition is by the husband seeking transfer of the petition for restitution of conjugal rights filed by the wife before the Family Court, Saket, New Delhi where the parties had gotten married at Delhi.  Transfer Petition filed by the wife was allowed and, the divorce was transferred from the Family Court, Pune, Maharashtra to the Court of New Delhi and it was to be tried together with the wife’s petition under Section 9 of the HMA.

 

Transfer of a Domestic Violence complaint.

In Ritu Mishra v. Ratna Srivastava, (2011) 15 SCC 578  on the facts of case the court was satisfied that in case the proceedings in the complaint under the Domestic Violence act is allowed to be continued at Hyderabad, Andhra Pradesh, the petitioner (wife) shall be put to hardship and grave inconvenience accordingly same was directed to be transferred to Karkardooma Court, Delhi.

Transfer of a case of Cruelty against Women u/s 498A of IPC.

In Jyoti Mishra v. Dhananjaya Mishra, (2010) 8 SCC 803 the court declined to transfer the trial case u/s 498A from Hyderabad to Indore at the instance of the wife. The wife had filed the FIR u/s 498A while living with the husband against him and his family member. The wife later shifted to Indore and filed transfer petition before the Supreme Court for the transfer of the trial of said case from Hyderabad to Indore. The Court declined to allow the transfer petition. The reasoning was that the Court cannot allow transfer of a criminal case from one State to another solely on the ground that it would be more convenient for the complainant (wife) to prosecute the matter there. The Court was of the opinion that in cases of dissolution of marriage, restitution of conjugal rights or maintenance, this Court shows much indulgence to the wife and ordinarily transfers the case to a place where it would be more convenient for the wife to prosecute the proceedings. But a criminal case is on a somewhat different footing. The accused may not be able to attend the court proceedings at Indore for many reasons, one of which may be financial constraints, but the consequences of non-appearance of the accused before the Indore Court would be quite drastic.

Transfer of other criminal cases between husband and wife

In Naina Narang v. Rohit, 2017 SCC OnLine SC 1402 the Supreme Court allowed the transfer petition ex-parte (where the husband did not put into appearance before Supreme Court despite service of notice) filed by wife to transfer the criminal complaint filed by herself u/s 406 IPC (criminal breach of trust) against her husband and his family pending before the Court at  Nainpur Madhya Pradesh to the Court of competent jurisdiction at Nagpur, Maharashtra. The complainant wife had shifted to Nagpur post lodging of the complaint and dispute with the husband.

Frequently Asked Questions on Transfer Petition:

Q: Can a Transfer Petition be allowed by the Supreme Court without issuing notice and hearing the respondent/ or the person who had instituted the case at the local level?

As a rule, the Supreme Court does not allow Transfer Petition w/o issuing notice to the respondent/ the person who instituted the case at original local level. However, post notice if the respondent does not appear than ex-parte order of transferring the case may be passed (refer to Gyanmati Yadav v. Ram Sagar Yadav, (2013) 14 SCC 621).

In the case of Rajendra Khare v. Swaati Nirkhi, 2021 SCC OnLine SC 68, the Supreme Court allowed the transfer petition on the very first date w/o issuing notices to the respondent and even the informant was  not made party. On review petition filed by the actual informant, the court in its true wisdom had to revive the Transfer Petition by exercising its powers under Article 137 of the Constitution read with Rule XLVII of the Supreme Court Rules.  

Q: Can the parties mediate and file for mutual divorce before the Supreme Court under the Transfer Petition?

It is usually seen that the Supreme Court’s order takes an approach which can reconcile a marriage but for that a hint should come from the side of the parties in their affidavit. If a party or the parties are willing to settle their dispute and make such averment in their affidavits the Supreme Court allows mediation between the parties under the guidance of Supreme Court mediation and Conciliation Centre and depending on the outcome it passes final order.

In Sandhya M. Khandelwal v. Manoj M. Khandelwal, (1998) 8 SCC 369 during the pendency of the Transfer Petition both the parties tried to settle their disputes and filed a joint petition incorporating the terms of the settlement before the Court voluntarily and keeping in mind the interests of both the parties and the minor son. The Court found that the terms of settlement are beneficial to the interests of both the parties and also the interests of the minor son. A prayer was also made before the Court that the divorce petition at Ajmer may be treated as a divorce petition by mutual consent and a decree of divorce be granted. In the facts of the case the Court found that such decree of divorce will be beneficial to the interests of both the parties and directed for a decree of divorce by treating the pending application at Ajmer as a mutual divorce application. The settlement between the parties was allowed including mutual divorce.

Q: Usually how long does it take in the Supreme Court for a decision on a Transfer Petition?

As per the procedure given under Order 41 of the Supreme Court Rules 2013, the transfer petition on first hearing date is posted before the Court for preliminary hearing and orders as to issue of Notice. If court is not convinced that prima facie a case of transfer is made out then it can dismiss the Petition. However, if court prima facie finds that a case of transfer is made out from the facts as stated by the petitioner, it issues notice to respondent parties to show cause why the petition should not be transferred.

In the entire process, in best scenario, it normally takes two to three months in adjudication of transfer petitions.

Q: Is it necessary to always seek transfer from the Supreme Court or appropriate application for transferring the case etc. can be filed before the Court from where the summons has been received?

In Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150 the Supreme Court directed that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:

• Availability of videoconferencing facility.
• Availability of legal aid service.
• Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC.
• E-mail address/phone number, if any, at which litigant from outstation may communicate.

 

Sequitur:  

We can say that the Hon’ble Supreme Court exercises its power to transfer a matrimonial case under following circumstances:

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[1] Dominus litis is the person to whom a suit belongs. This also means master of a suit. The person has real interest in the decision of a case. It is this person who will be affected by the decision in a case

[2] Raju Ramachandran and Gaurav Agarwal (ed), B.R. Agarwala’s Supreme Court Practice and Procedure (6^th edn, Eastern Book Company 2002), Pg. 209.

[3] Raju Ramachandran and Gaurav Agarwal (ed), B.R. Agarwala’s Supreme Court Practice and Procedure (6^th edn, Eastern Book Company 2002)

[4] Sangeeta v. Suresh Kumar, (2000) 9 SCC 442