Nitish Banka (lawyer) 10 October 2017

Transfer petition

Transfer Petition in Supreme Court of India-All about

Transfer petition in supreme court is entertained Under Section 25 of the Code of Civil Procedure the Hon’ble Supreme Court has the power to transfer any Case, appeal or other proceedings from High Court or other civil court in one State to a High Court or other civil court in any other State.

This power may be exercised by the Supreme Court if it is satisfied that an order under this Section is expedient for the ends of justice. Hence wide powers are given to the Supreme Court to order a transfer if it feels that the ends of justice so require.

Divorce Transfer Petition in Supreme Court

Generally in supreme court divorce transfer petition in supreme court are filed. Is filed by wife when husband files the petition in matrimonial home and wife is residing at parental home at some other state

Transfer Petition in Supreme Court

Rather as a matter of fact the Husband cannot be always made to suffer and there are judgments passed by the SC wherein he can counter the allegations made by the wife and protect himself from being further harassed. Defense of these could be described as follows:

If the wife claims to have a minor child then grandparents can be asked to look after the child and merely on this ground the petition should not be transferred (Anandita Das v. Sirjit Dey (2006))

If the wife claims a far distance then effort to prevent a transfer the husband can make an offer to bear IInd class AC tickets for the woman to travel and her stay expenses. This is normally considered by the court.

If the wife claims a threat to her life and she cannot commute strong proof is required to be shown and merely by stating fear to her life the court will not be inclined to transfer the same as held by Hon’ble Supreme Court in Priti Sharma v. Manjeet Sharma – (2005)– the court, in the case of a wife seeking transfer on the grounds of being unemployed and unable commute, categorically held “merely because petitioner is a lady does not mean she cannot travel” and the transfer petition was dismissed.

Men who have kids custody with them can rely onJaishree Banarjee v. Abhirup Banarjee (1997) 11 SCC 107 to get proceedings transferred in their favour.

Transfer Petition Format

1.A short synopsis

A short and simple synopsis outlining the grounds you wish seek before the Hon’ble supreme court is a must, your synopsis must be crisp and to the point and relates to only facts which forms the ground for seeking the transfer.

2. Details of the case

Specify the complete details of the case you wish to get it transfer from one court to another also specify the court in which you wish to seek the transfer of the case.

3. Grounds

Specify the grounds on which you may be seeking the transfer of case the grounds are mentioned below.

a) prejudice in that jurisdiction

that husband family is very influential and will hamper fair proceedings.

b)Threat to life

Again being influential is a good ground for having a threat to life.

c) being a single women without any support.

if there is no support from father side then that is also a good ground for seeking transfer.

d) medical history

medical proof should be attached in case of medical ailment.

e) old and ailing parents.

f) No source of income

if wife is not working its a good ground.

g) Simultaneous jurisdiction.

4. Interim Relief

You must also pray for interim relief of stay of proceedings of the case you wish to seek transfer.

Criminal Transfer Petition in Supreme court

Section 406 of the Code of Criminal Procedure gives power to the Supreme Court to transfer criminal cases and appeals pending in 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. The Supreme Court can act under the section only on the application of the Attorney General or of a party interested. Where an application under Section 406 Of The Code of Criminal Procedure 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 the respondent such sum not exceeding Rs 1000.

Recent Judgments

These days Hon’ble Supreme court is not lenient in allowing transfer petition in supreme court in favor of wife and is mostly dismissing these kind of petition and citing Krishna Veni Nagam vs Harish Nigam

In the aforesaid judgement the supreme court relying on Para-17 and 18 as mentioned below.

17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of 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.

18. 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 CPC.

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

Therefore the aforementioned guidelines were issued to all the High courts to make arrangements for video conferencing instead of transferring the petition, therefore dismissing all the transfer petition filed in the Hon’ble Supreme Court.

For husband the judgement of Krishna Veni Nagam vs Harish Nigam is a valid defense for husbands for defending transfer petition supreme court.

However this Judgement is referred to higher bench still there is hope for wife. However

There can be other grounds as well like-:

a. Manipulation of court records.

b. Attack on wife.

c. Petition filed to harass wife

d. Petition filed without jurisdiction by reading petition only.

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Nitish Banka (lawyer) 25 March 2018

Transfer Petition in Favor of wife

Posted by: nitish788 Categories: Uncategorized

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Transfer petition in favor of wife

By Medhavi Mishra

What is a Transfer Petition ?

Section 25 of the Code of Civil Procedure enables the Supreme Court to transfer any Case, appeal or other proceedings from High Court or other civil court in one State to a High Court or other civil court in any other State. This power can be and generally is exercised by the Supreme Court of India if the matter suffices the need for justice. Hence wide powers are given to the Supreme Court to order a transfer if it feels that the ends of justice so require.

Convenience of the Wife as an argument

Although as a common trend, the Supreme Court used to take a soft side towards the transfer petition filed by the wife. As in the cases given below, the convenience of the wife was a prominent point to be taken into consideration. However, nowadays, it is to be noted that the trend of feminism in Supreme Court decisions is such that the decisions are purely based on logical arguments. The “soft side for women” is not anymore visible in the later supreme court decisions. That being said, it does not mean that the courts do not consider convenience of the wife as an argument.

For example,

In the case of Smt. Neeraja Gupta Vs. Dr. Rajesh Gupta, 2002(1) HLR 273, this Court allowed the transfer application filed by the wife but from Jind to Mansa instead of from Jind to Abohar on the ground that convenience of the wife has to be looked into.

In the case of Boby Rani alias Babita Vs. Suresh Kumar, 2011(1) HLR 284, this Court has allowed the transfer petition on the ground that convenience of the wife is to be seen. In this case wife is 70% handicapped.

However, in the case of Veena v. Vinay Kumar, 1992 (1) HLR 380, the Hon’ble Punjab & Haryana High Court dismissed the application under Section 24 of CPC instituted by the wife for transfer of divorce petition on the ground that she pleaded for her convenience alone and failed to make out a case for transfer of proceedings at Jagadhri to Ferozepur in terms of Secton 24 CPC. The court ruled that the convenience of one party to the litigation i.e. wife alone, cannot be accepted as of rule. The Court is required to adopt a balanced view of convenience of both the parties, of course may be with some premium in favour of the wife.

In the case of Mona Aresh Goel vs Aresh Satya Goel on 21 March, 2000, where in the transfer petition was filed by the wife to transfer the divorce proceedings taken by the husband in Bombay to Delhi, where she stayed with her parents. The transfer petition avers that the wife had no independent income and that her parents were not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. She averred that she is twenty two years old and cannot travel to and stay in Bombay alone for, there is no one in Bombay with whom she can stay. Hence the court allowed such a petition in these circumstances.

A very poignant and logical judgment was observed in Premlata Singh v. Rita Singh wherein this Court had not transferred the proceedings but directed the husband to pay fortravelling, lodging and boarding expenses of the wife and/or person accompanying her for each hearing. The said principle was also followed in Gana Saraswathi v. H. Raghu Prasad.

In the case of Santhini vs Vijaya Venketesh on 9 October, 2017, the court cited various cases. The court before reaching the final conclusions made a reference to the following cases, it made apt to refer to the decisions that have been noted in Krishna Veni Nagam. In Mona Aresh Goel ( as discussed above) the three-Judge Bench was dealing with the transfer of the matrimonial proceedings for divorce that was instituted by the husband in Bombay. The prayer of the wife was to transfer the case from Bombay to Delhi. The averment was made that the wife had no independent income and her parents were not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. That apart, various inconveniences were set forth and the husband chose not to appear in the Transfer Petition. The Court, considering the difficulties of the wife, transferred the case from Bombay to Delhi. In Lalita A. Ranga , the Court, taking note of the fact that the husband had not appeared and further appreciating the facts and circumstances of the case, thought it appropriate to transfer the petition so that the wife could contest the proceedings. Be it noted, the wife had a small child and she was at Jaipur and it was thought that it would be difficult for her to go to Bombay to contest the proceedings from time to time. In Deepa’s case, the stand of the wife was that she was unemployed and had no source of income and, on that basis, the prayer of transfer was allowed. In Archana Rastogi , the Court entertained the plea of transfer and held that the prayer for transfer of matrimonial proceedings taken by the husband in the Court of District Judge, Chandigarh to the Court of District Judge, Delhi deserved acceptance and, accordingly, transferred the case. Similarly, in Leena Mukherjee ,the prayer for transfer was allowed. In Neelam Bhatia, the Court declined to transfer the case and directed the husband to bear the to-and-fro travelling expenses of the wife and one person accompanying her by train whenever she actually appeared before the Court. In Soma Choudhury, taking into consideration the difficulties of the wife, the proceedings for divorce were transferred from the Court of District Judge, South Tripura, Udaipur (Tripura) to the Family Court at Alipore (West Bengal). In Anju Ohri case, the Court, on the foundation of the convenience of the parties and the interest of justice, allowed the transfer petition preferred by the wife. In Vandana Sharma, the Court, taking note of the fact that the wife had two minor daughters and appreciating the difficulty on the said bedrock, thought it appropriate to transfer the case and, accordingly, so directed.