COUNTER AFFIDAVIT FOR SC TRANSFER PETITION – GUIDE

REPLY/ COUNTER AFFIDAVIT AGAINST TRANSFER PETITION

How to Prepare a Reply or counter affidavit to a Transfer Petition filed in the Supreme Court of India?

Transfer Petition before the Hon’ble Supreme Court of India is governed by the Supreme Court Rules, 2013. Broadly, there are two categories of transfer petitions: Transfer Petition (Civil) and Transfer Petition (Criminal). A Transfer Petition (Civil) is filed under Section 25 of the Code of Civil Procedure, 1908, read with Order XLI of the Supreme Court Rules, 2013, whereas a Transfer Petition (Criminal) is filed under Section 406 of the Code of Criminal Procedure, 1973, read with Order XXXIX of the Supreme Court Rules, 2013. Transfer petitions arising out of matrimonial disputes constitute a significant portion of such filings, commonly involving the transfer of proceedings such as divorce petitions, petitions for restitution of conjugal rights (RCR), cases under Section 498A IPC, proceedings under the Protection of Women from Domestic Violence Act, maintenance cases under Section 125 CrPC or other applicable provisions, and child custody matters. Respondents who are served with notice in such transfer petitions must be vigilant and strategic in preparing their reply. A well-drafted counter-affidavit can often determine the outcome. This article lays down a comprehensive guide on how to effectively prepare a reply to a transfer petition before the Supreme Court.

Understand the Nature and Grounds of the Transfer Petition:-

To prepare a counter affidavit/ reply to the Transfer Petition, the respondent must go through the grounds of the transfer petition filed by the petitioner very carefully and find out whether the grounds taken by the petitioner are correct or not. If there are certain facts or grounds that have been concealed or wrongly placed or mentioned by twisting the actual facts, the same should be highlighted in the counter affidavit and also needs to be attached the relevant documents with the counter affidavit which show that the grounds taken by the petitioner is actually incorrect. It is specifically clarified here that grounds to defend the transfer petition vary in every transfer petition and the same depends on case to case. So there is no straight jacket formula that will apply in every case. So pay close attention to the grounds on which the transfer is sought. Common grounds include:

• Convenience of the wife (especially in matrimonial cases)

• Health issues

• Security threats

• Distance and travel difficulties

• Pending litigation at another place

• Child custody or schooling concerns

Each of these grounds must be scrutinized for veracity, materiality, and legal sufficiency.

Discover misrepresentations and omissions:-

Once the grounds are understood, carefully examine whether the petitioner has concealed or distorted facts. It is often seen that:

• The petitioner may conceal that proceedings in another jurisdiction are already at an advanced stage.

• The financial and professional capacities of the respondents are misrepresented.

• Allegations regarding threats or harassment are vague or unsubstantiated.

Such material concealments or twisted narratives should be highlighted in the counter affidavit.

Gather and attach supporting Documents:-

Any factual challenge must be supported by documentary evidence. Key documents that may be relevant include:

• Copy of ongoing proceedings and case status from the local court

• Employment documents or leave records to show hardship in attending a distant court

• Medical certificates (if applicable)

• Proof of respondent’s residence, dependents, or business commitments

• Record of communications that demonstrate the petitioner’s conduct

Attach these as annexures and refer to them in the reply affidavit at relevant places.

Key Components;-

A reply to a transfer petition must be in the form of a counter affidavit, duly verified and supported by an affidavit under Supreme Court Rules.

Important components include:

Preliminary Submissions:-

Begin with a brief factual background and a summary of your objections to the transfer petition.

Reply on Merits to Each Ground:-

• Give a para-wise reply to the grounds raised in the transfer petition.

• Deny false claims categorically and state correct facts.

• Wherever possible, include legal precedents to rebut vague grounds.

Declaration:- A declaration must be given in the following words-

• The facts which are pleaded in the lower court are also similar in the present Counter Reply.

Prayer Clause:-

Request the Hon’ble Court to dismiss the transfer petition. If needed, alternatively request for video conferencing arrangements or expedited disposal of the original case by the Trial Court within a time frame.

FORMAT OF REPLY/ COUNTER AFFIDAVIT

There is no fixed format for drafting a counter reply against a transfer petition in the Supreme Court, as the facts and context differ in every case. However, a sample draft is given below.

A SAMPLE DRAFT OF THE REPLY/ COUNTER AFFIDAVIT

IN THE HON’BLE SUPREME COURT OF INDIA

[CIVIL ORIGINAL JURISDICTION]

Transfer Petition (Civil) No. ___ of 2025

IN THE MATTER OF:

Name of the Petitioner                                                                                       … Petitioner

                                                             Versus

Name of the Respondent                                                                                   … Respondent

COUNTER AFFIDAVIT ON BEHALF OF THE RESPONDENT:-

I, [Respondent’s Name], S/o [Father's Name], aged about __ years, resident of [Address], do hereby solemnly affirm and state as under:

Preliminary Submissions:

1. That I am the Respondent in the above-mentioned Transfer Petition and as such am well acquainted with the facts and circumstances of the present case and competent to swear this affidavit.

2. That the contents of the Transfer Petition filed by the Petitioner are misleading, vague, and contain material misrepresentations. The Petitioner has not approached this Hon’ble Court with clean hands and has suppressed vital facts relevant to the just adjudication of the matter.

Brief Facts of the Case:

1. The marriage between the parties was solemnized on [Date] at [Place]. After the marriage, the parties lived together at [Place] until [Date], when the Petitioner left the matrimonial home of her own volition.

2. I have filed a petition for [e.g., Restitution of Conjugal Rights/Divorce/Custody, etc.] bearing Case No. _/20 before the Hon’ble Family Court at [City], which is pending adjudication. The proceedings have reached an advanced stage.

Reply to the Transfer Petition:

1. That the Petitioner has sought transfer of the above-mentioned case from [Court Name, City] to [Court Name, City] on the alleged grounds of inconvenience and threat to personal safety, the said grounds are false, unsubstantiated, and designed solely to delay the pending proceedings.

2. It is denied that the Petitioner is facing any hardship in attending the proceedings. The distance between the two cities is manageable, and regular trains/flights are available. Furthermore, the Petitioner is financially independent and fully capable of undertaking the travel.

3. It is further submitted that I am employed at [Place] and have aged parents to take care of. Transferring the matter would cause me irreparable hardship and prejudice.

4. The Petitioner has deliberately concealed that she is already attending proceedings under [e.g., Section 125 CrPC/DV Act] before the competent court at [City], which belies her claim of hardship in traveling.

5. It is submitted that the Petitioner has not produced any medical or documentary evidence to support her alleged inconvenience.

Declaration:- A declaration must be given in the following words-

The facts which are pleaded in the lower court are also similar in the present Counter Reply.

Prayer:

In view of the above, it is most respectfully prayed that this Hon’ble Court may be pleased to:

a) Dismiss the Transfer Petition as being devoid of merit and filed with oblique motives;

b) Pass any other order(s) deemed just and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE RESPONDENT AS IN DUTY BOUND SHALL EVER PRAY.

DEPONENT

(Respondent’s Name)

VERIFICATION

I, the above-named deponent, do hereby verify that the contents of the above counter affidavit are true and correct to my knowledge and belief. No part of it is false and nothing material has been concealed therefrom.

Verified at [Place] on this __ day of [Month, Year].

DEPONENT

(Respondent’s Name)