OVERVIEW OF TRANSFER PETITION IN THE SUPREME COURT

What is a Transfer petition:-

Transfer petition means a petition which is to be filed to transfer a case from the place where it has been originally filed to any other place. So for as matrimonial Transfer Petition is Concern, mainly the wife use to file a Transfer petition in the Supreme Court to Transfer the case filed by her husband seeking Divorce, Restitution of Conjugal Rights (RCR) etc. It has been seen that when matrimonial disputes arise, the couple started living separately. Generally, the wife resides at her parental house or at the place where she is employed or working. In such a situation the husband finds a legal solution either to file a restitution petition or Divorce petition as per his peculiar facts and circumstances which warrants deciding a legal course of action.

What is the procedure to file a Transfer Petition in the Supreme Court:-

There are two types of Transfer petitions i.e Transfer petition (Civil) and Transfer Petition (Criminal).In the Supreme Court Transfer Petition (Civil) is being filed Under Section 25 of the Code of Civil Procedure read with Order XLI of the Supreme Court rules 2013 and Transfer Petition (Crl) is being filed under section 406 of the code of criminal procedure read with order XXXIX of the Supreme court rules 2013. For better understanding section 25 of C.P.C, is reproduced here as under:- 

25. Power of Supreme Court to transfer suits, etc .-(1) On the application of a party, and after notice to the parties, and after hearing such of them as a desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal, or other proceeding is transferred shall, subject to any special directions in the order of transfer, either re-try it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal, or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal, or other proceeding was originally instituted ought to have applied to such suit, appeal, or proceeding.

406. Power of Supreme Court to Transfer Cases and Appeals.

1. Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

2. The Supreme Court may act under this section only on the application of the Attorney- General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney- General of India or the Advocate- General of the State, be supported by affidavit or affirmation.

3. Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of the case.

Transfer Petition in the Supreme Court with regard to Matrimonial Cases:-

Transfer petitions arising out of the matrimonial disputes are mainly to transfer the cases such as Divorce case, Restitution Petition (RCR), 498A Case, Domestic Violence (D.V), Maintenance case, Child custody case etc. It arises when a spouse (Husband or Wife) filed a matrimonial case against the other spouse at the place where she/he presently residing and the opposite party (Husband or Wife as the case may be) feeling difficult to contest the said matrimonial case at the place where it has been originally filed so in such a situation the aggrieved party approaches the Supreme Court for transfer the case in question by filing a transfer petition, seeking Transfer of the case from its original place to the place where She/he feels convenient to contest the case. Maximum transfer petitions which are filing in the Supreme Court are related to transfer the Divorce Case and Restitution Case (RCR) and it has been earlier seen that the result of the Transfer Petition generally goes in favour of the wife. But after the case of “Krishna Veni Nagam Vs. Harish Nigam T.P (Civil) No.1912 of 2014 decided on 09.03.2017, the Supreme Court had an occasion to consider the case on its merit and passed certain directions with regard to disposal of the matrimonial cases without its transfer from its original jurisdiction. In this case, the Supreme has issued the following guidelines to dispose of the matrimonial cases:- 

“We are thus of the view that it is necessary to issue certain directions which may provide an alternative to seeking transfer of proceedings on account of the inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.

 We, therefore, direct 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:-

i) Availability of video conferencing facility.

ii) Availability of legal aid service.

iii) Deposit of cost for travel, lodging, and boarding in terms of Order XXV C.P.C.

iv) E-mail address/phone number, if any, at which litigant from out station may communicate.

After the above directions, the Supreme Court was not lenient in allowing transfer petition in favour of the wife and was mostly dismissing these kinds of petition on the basis of procedure and law laid down in the case of Krishna Veni Nagam Vs. Harish Nagam (supra). The husband used to cite the above judgment in his defence to oppose the Transfer Petition filed by the wife.

After some time a three-judge bench in the case of “Santhini Vs, Vijaya Venketesh Transfer Petition (Civil) No.1278/2016 with Transfer Petition (Civil) no.422/2017 dated 09.10.2017” by a majority of two-Judge Dipak Mishra CJI and Justice Khanwilkar, (Justice D.Y.Chandrachhud has given dissent opinion) has overruled the earlier judgment of Krishna Veni Nagam Vs. Harish Nagam (supra) which had led the practice of Supreme Court referring the parties to participate in the matrimonial disputes cases through video conferencing, when the parties approached the court for transfer of the matter.

Now the position is the same as was prior to the case of Krishna Veni Nagam Vs. Harish Nagam (Supra). In the Supreme Court, large numbers of transfer petitions are being filed related to matrimonial disputes to transfer of the cases such as Divorce Petition, Restitution petition (RCR), Domestic Violence Case, 498A Case, Maintenance Case etc.

What is the appropriate stage to file a Transfer Petition in the Supreme Court?

When a summon or notice is received which has been issued by the Court concerned where originally the case in question is filed and the respondent/Defendant feels inconvenience to contest the case at its original place where it has been registered, the aggrieved person may approach the court for transfer of the case in question by filing an appropriate Transfer petition in the Supreme Court subject to the condition that the original case is pending/ instituted in a different State from the place where the aggrieved person is presently residing. So, it is an appropriate stage to file a transfer petition and the same could not be questioned on the ground of its stage and the respondent cannot take the plea that the transfer petition has been filed at its belated stage. But on the other hand, if the aggrieved person approaches the Supreme Court at a belated stage i.e after her/his appearance in the original case and appointing the counsel to conduct the case in question and some proceeding of the case has also taken place, then in the Supreme Court, a question may arise in favour of the respondent that there is no inconvenience to the petitioner in conducting the case at its original place because the petitioner has already engaged a Lawyer who conducting the case conveniently.

Grounds of the Transfer Petition related to the matrimonial Cases:-

The grounds which the petitioners generally taking in the Transfer Petition before the Supreme Court are:-

1. Financial crunch to the petitioner

2. Life threats to the petitioner

3. No one is in the family to accompany the petitioner  

4. Long journey

5. Minor child

6. Leave is not granted ( in case the Petitioner is employed) etc.