Under the Section 25 of Code of Civil Procedure, the honourable Supreme Court holds the power of transferring any appeal, case, or other such proceedings from the High Court or any civil court in one state, to the High court or the civil court in another one. This power can be exercised by Supreme Court, if it is notices that any order under this code, is unduly advantageous to one of the parties.
A wide range of powers has been bestowed upon the Supreme Court for ordering transfer of those cases that it finds to be subduing justice. This kind of provision has often been invoked, especially in matrimonial matters, and normally on instance from the wife.
When the couple are living separately, and if the husband files a petition for divorce under the marriage and divorce related laws, at the place where he is living, then such cases can be transferred to the court closer to the wife’s parental home.
It can be done on the grounds like:
- She may not be able to travel
- or she can’t just leave the child behind
- or she faces some threats when going to defend proceedings, etc
In such cases, the court may take sympathetic side towards the wife’s plea for transfer. However, it may not always be the case. Let us now look deeper into divorce transfer petitions in the following sections below.
Divorce Transfer Petition :
Generally, divorce transfer petition is filed in the Supreme Court by the wife, when her husband files the divorce petition in the town or city of their matrimonial home. The wife may be residing at her parental home in some other state.
However, the husband may not always be made to suffer. There have there have been some divorce transfer petitions declined by the supreme court, where the husband was allowed to counter the allegations made by the wife. Defence of all these pleas can be described in following ways.
- If the wife claims to live far away for attending the court, then the husband, as an effort to avoid the transfer petition can offer 2nd class AC tickets along with her accommodation expenses. This defence is usually considered by court.
- If wife claims of having a minor child, then the grandparents may be asked to take up the responsibility of looking after the child. On this ground, the petition must not be transferred.
- If wife claims threat to herself and if she cannot commute, then a strong proof should be presented to substantiate those claims. Just by hearing the statement of fear to her life, the court won’t be transferring the petition. Just because the wife is not employed or unable to commute, and just because the petitioner is lady, doesn’t imply that she can’t travel.
- Men that have custody of kids with them can get proceedings transferred to their favour.
Quick look to the Transfer Petition Format
Short Synopsis – A simple and short synopsis that can properly outline the grounds that you wish to get in front of Supreme Court is required. It must be up to the point and crisp, and should relate to only the facts that form ground to seek the transfer.
Ground – Ensure to specify grounds on the basis of which you are seeking transfer of the case.
The grounds can be as follows –
- Threat to life – If the husband is from strong and influential family, then it is a good ground for having threat to the life.
- Prejudice in jurisdiction – Again, in case of influential in-law’s family, it may lead to obstructions in the fair proceedings, which is a fair ground.
- Medical history – In case of any medical ailment, an accurate medical proof must be attached.
- Being single women without support – If there isn’t any kind of support from her father’s side, then it is also a fair ground to seek transfer.
- Ailing and old parents
- No income source – If the wife isn’t working, then it is even a good ground.
Details of case – Ensure to specify full details of case that you wish for transferring from one court to other. You should even specify the court, where you want to get the case transferred.
Interim relief – You should even appeal for the interim relief, for the stay on the proceedings.
Transfer Petition for the Criminal cases:
Under section 406 of Code Of Criminal Procedure, it offers power to the Supreme Court for transferring criminal cases and the appeals that are pending in one of the High Court to other High Court, or even from one criminal court to another (superior or equal) jurisdiction subordinate. However, the Supreme Court can act under this section only on application of Attorney General, or of the interested party.
Useful tips for filing of Transfer of Petition in the Supreme Court:
- Annexures that are referred to in Transfer Petition, are to be filed in the Transfer of Petition in the Honourable Supreme Court of India.
- Affidavit of the petitioner duly sworn, must also be filed with the transfer petition.
- 1+5 copies of Transfer petition in the Supreme Court of India are generally filed, and are duly bound.
- Index of Transfer Petition in the Supreme Court of India has to be filed at top of petition.
- Court fees of Rs.50 per petitioner which is charged for the civil matters, will not be required for Transfer Petition in the Supreme Court.
- Cover page that contains title and other such details should to be filed with transfer petition.
- Memo of appearance is also to be filed with the transfer petition.
- Application for the interim relief, exemption, stay, and so forth also to be filed with transfer petition.
Some of the Case Laws on the Transfer of Petition
In Dev Prakash Thakar Vs Kalpana Dev Prakast Thakar, the Honourable Court dismissed wife’s plea for transferring matrimonial proceedings to Palanpur, Gujarat from Mumbai. It took the following considerations into account.
- All of the witnesses were mainly from Mumbai.
- The husband was working as a medical practitioner. Therefore, his absence from his place in Mumbai would really cause great trouble to his patients.
- His ailing and old mother that lived with him required constant care and medical check-ups at regular intervals.
- Palanpur was connected well to Mumbai through trains.
- The wife already had relatives in Mumbai that would allow them her to stay at their place, whenever she wanted to travel there for case.
- The husband was willing to bear travel expenses along with travelling expenses of escort.
In the case of Ramesh Shitla Ojha vs. Shiv Kumari Ojha, the Court dismissed the application of lady for the transfer of application. Her major plea was that she was not able to commute to Gujarat from U.P being a lady.
The court disallowed this petition on ground that respondent was willing for paying travelling expenses. Moreover, the court held that in case the petitioner had any kind of complexity in engaging counsel due to financial constraints, then she can even file application for recovering the amounts that are paid for the same, from respondents in trial court in Gujarat.
There are some other issues that have risen in context of power of court for ordering transfer under the section 25 of Code of Civil Procedure. The court has often felt that parties should be advised for dissolving their bond of marriage by the mutual consent. Sometimes, the parties requires coming to such kind of understanding.
In such cases, the court has usually allowed parties to file petition for the divorce by their mutual content, right in the Supreme Court. However, some of the benchers didn’t agree to it, and have taken the view that it can’t be done, as such petition can be filed only in Supreme Court. It was submitted respectfully that the court isn’t justified in relegating parties to trial court, when both of the parties themselves want to dissolve their marriage. Since petition for divorce by mutual consent must be filed before the District Judge Court or Family Court is generally a procedural matter, it does not touch on substantive rights of parties.
Another controversial situation that arises is when the transfer of case is being sought from Jammu and Kashmir. The Code of Civil Procedure doesn’t apply to this State, and so the provisions of the Section 25 also don’t apply there.
The Court might not necessarily exercise its power for transferring of petition, if the constitutional validity of provision in question, is already before it.
In case of Union of India vs. Vinod Chandra Chiman Lal, the court had been asked for transferring some writ petitions that were pending in Gujarat High Court. That petition challenged constitutional validity of SAFEMA and COFEPOSA on ground, so the said questions were considered in front of nine judges of Supreme Court.
Supreme Court had originally stayed proceedings in the High Court. Eventually the supreme court had to reject the transfer petition, because of objections raised by the writ petitioners in the high court. It was pointed out that the writ petition will have to be called back due to lack of constitutional validity on the provision, if the transfer was allowed.
In the case of State of M.P vs. Central Court Fields, the Court disallowed appeal for transfer of the pending petitions in different High Courts to itself. The Court stated that it was open to petitioners applying in High Court with pending writ petitions for the interim relief, in same way as was pleaded for before the Supreme Court.
It ordered that the next set of hearings in writ petition will remain stayed. It then appeared that the major reason that weighed with Court for refusing the transfer, was that the same docket of court must not get too much crowded with huge number of cases.
It is therefore respectfully submitted that it isn’t the suitable course for Court to adopt, since every writ petitioner before different High Courts can still move the intervention applications in pending matters before the Supreme Court. It was ordered on the grounds that the decision of Supreme Court will lead to concluding of writ petitions in the High Court.
These days, the Honourable Supreme Court isn’t that lenient, when it comes to allowing the transfer of petition in favour of the wife. It is in fact mostly dismissing such type of petitions. In the above-stated judgment, Supreme Court relies upon the following.
- We are thus of view that it is essential to issue some directions that can offer alternatives to seek transfer of the proceedings on account of the party’s inability to contest the proceedings at place away from their residence. The court will however take cognizant on the grounds if it results in the denial of justice, if the case proceedings aren’t being transferred.
- We, as a result, direct that custody or matrimonial matters, or the proceedings involving parties to marriage, or arising out of the disputes between parties to marriage, where so ever the respondents or defendants are located outside the court’s jurisdiction, the court where the proceedings are instituted can examine whether it is really in interest of justice. It can include any kind of safeguards to ensure that the summoning of the respondent doesn’t lead to the denial of justice. The order of incorporating such kind of safeguards can also be sent along with summons.
Now, the safeguards can include the following –
- Availability of the legal aid service
- Video conferencing facility available
- Phone number or E-mail, if any, with the help of which the litigant from a distant place can communicate.
- Deposit of the travel, boarding and lodging cost.
As a result, the above mentioned guidelines were being issued to all of the High Courts for making proper arrangements of video conferencing, rather than transferring of the petition. Therefore, the entire transfer petitions which are filed before the Honourable Supreme Court have been dismissed.