TRANSFER PETITION IN FAVOR OF THE HUSBAND

The procedure of filing a transfer petition in the Supreme Court is governed by the Supreme Court Rules 2013. 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 a 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. Transfer petitions arising out of the matrimonial disputes are mainly to transfer the cases such as Divorce cases, Restitution Petition (RCR), 498A Cases, Domestic Violence (D.V), Maintenance cases, Child custody cases, etc. It arises when a spouse (Husband or Wife) filed a matrimonial case against the other spouse at the place where she/he presently resides 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 filed in the Supreme Court are related to matrimonial disputes.

JUDGMENTS/ORDERS ON THE TRANSFER PETITION IN FAVOUR OF THE HUSBAND IN THE 498A CASE:-

So far as the transfer petition of the criminal case with regard to the matrimonial case is concerned, it has already been settled that in a criminal proceeding, the right of the accused to a fair trial and proper opportunity to defend himself is a fundamental right enshrined under article 22 (1) of the Constitution of India, which cannot be denied in any case. In the case of T.P (Crl.) No.94-95 of 2010 While rejecting the transfer petition filed by the estranged wife to transfer the case pertaining to the offence u/s 498A IPC, the Hon’ble Court has held that “In a criminal proceeding, the right of the accused to a fair trial and proper opportunity to defend himself cannot be ignored for the convenience of the complainant simply because she happens to be the estranged wife”

In another case Transfer Petition (Crl.) No.557/2022 vide order dated 02.09.2022, the Hon’ble Supreme Court has rejected the estranged wife’s transfer petition and declined to transfer the criminal case pertaining to the offence u/s 498A/506/343/323/294 IPC.

In the recent case Transfer Petition Criminal No.420 of 2022, order dated 08.12.2022, the Hon’ble Supreme Court, has rejected the Transfer petition criminal filed by the estranged wife to transfer of the Criminal trial related to the case of 498A case. 

JUDGMENTS/ORDERS IN FAVOR OF THE HUSBAND ON THE TRANSFER PETITION CIVIL PERTAINING TO THE DIVORCE CASE AND RESTITUTION OF CONJUGAL RIGHTS (RCR) ETC:-

In the Transfer Petition Civil no.191/2005, while dismissing the transfer petition filed by the estranged wife, it has been also observed that “……even otherwise, it must be seen that at one stage this court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the lenience taken by this court. On average at least 10-15 Transfer Petitions are on board each court on each admission day. It is, therefore, clear that leniency of this court is being misused by the women, this court is now required to consider each petition on its merit……” It is further observed by this court in the same case. “…..on the ground that she is not able to come to Delhi to attend the court on a particular date, she can always apply for exemption and her application will undoubtedly be considered on its merit. Hence no ground for transfer has been made out…..”. 

In the Transfer Petition Civil No.158/2023, The Hon’ble Supreme Court has refused to transfer the Divorce Case filed by the husband to the place where the estranged wife wants, rather transferred the case in question at Delhi, considering the threat perception raised by the Husband about his safety and security at her parental place.