Guide To Transfer Of Divorce Or Matrimonial Petition In India From One State To Another

 

Transfer of petition is a way of transferring cases that are mainly related to matrimonial or divorce related disputes, from the court situated in a specific state, to the one that is situated in another state. It can be filed by either of the party before the Supreme Court.

This transfer petition is basically filed under the Section 25 of the Code of Civil Procedure. Under this provision, the honorable Supreme Court has jurisdiction for transferring civil case related to matrimonial dispute on the basis of situation of parties, facts of case, and so forth.

 

When this provision can be invoked?

In most of the cases, this provision is usually invoked in the marriage related matters, and at time when she is stated as a respondent in divorce proceedings that is initiated by her husband. It is also used in the cases where both parties have been living separately, because of differences in marriage, and if they live in different states. In such cases, the partner can move for the transfer of proceedings.

The grounds for her to show her inability to defend the proceedings from another state can be reasons like not being able to travel due to financial constraints, being in a position where she can’t leave her child alone, as well as on grounds of her personal safety.

The court may take sympathetic stand in the favour of the partner. However, that is not the case all the time. In some of the cases, Supreme Court decided that convenience of petitioner would cause an hurdle to delivering justice, and has proposed alternative ways, instead of accepting the petition transfer.

The section 406 of Code of Criminal Procedure even empowers Supreme Court for transferring of Criminal cases, and the appeals that are pending in one of the courts, can be transferred to other ones. The transfer can also be done from one of the Judicature subordinates to another one.

It may take around 4 to 6 months for the Supreme Court to make a decision on the Transfer Petition, which is after the hearing of each of the sides is done.

 

Grounds that are normally taken up by the wife in Transfer Petition 

  • Travel is not safe being a woman
  • Having child/children
  • Inconvenience for travelling to longer distances
  • Husband or his family is very much influential at his place
  • Expenses that are needed for travel
  • Threat to the life at her Husband’s place

Normally the divorce cases, and the ones that are related to the children’s custody, and the civil cases can be easily transferred by Supreme Court of India, when the transfer petition is being filed under the section 25 of the Civil Procedure Code.

Some of the matrimonial disputes can even involve cases that fall under the category of “Criminal Cases” such as maintenance applications, or any applications falling under the Domestic Violence Act, and so forth.

 

Challenges

There are some of the issues that have risen in context of power of Court for ordering transfer under the Section 25 of Civil Procedure Code. The court has often felt that parties should try for dissolving their marriage related matters by mutual consent.

Sometimes, the parties have even been compelled by the court for coming to such understanding. In such situations, the court has permitted parties for filing petition for their divorce by their mutual consent in Supreme Court itself.

However, some of the benches have stated it can’t be done, and that such petition must be filed only in lower courts. It is therefore respectfully submitted that court isn’t generally in the job of directing parties to other court, especially when both of the parties want to dissolve their marriage through mutual consent.

Another problematic scenario that generally arises is when transfer of case is done from Jammu and Kashmir. Code of Civil Procedure usually doesn’t apply to this state.

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