Transfer Petition before Supreme Court

Transfer of Matrimonial Cases from One State to Another State Within India

Transfer of cases relating to Matrimonial Disputes from a court situated in a particular state to a court situated in another state, can only be done by the way of Transfer Petition which may be filed by either party to the case before Hon'ble Supreme Court of India. Such Transfer Petition is filed under Section 25 of Code of Civil Procedure, wherein under the said provision, Supreme Court of India has original Jurisdiction to transfer a civil case relating to Matrimonial Dispute, based on facts of the case, & circumstances of parties, and if such transfer is expedient for ends of Justice. Similar power may be exercised by High courts in the event transfer of case is sought from one district to another within one state, over which the concerned High Court has Jurisdiction.

Section 25 is based on the ‘doctrine of forum convenience’ which means –‘the best forum’ where a fair trial can be held. Normally it is presumed that if petitioner has filed a case before a particular court having jurisdiction – it is the best forum. The burden is on the person seeking transfer of case, to prove that if the proceedings are not transferred, he/she would suffer irreparable injustice, on the merits of the case (ie going unrepresented in the case) and/or with issues respect to personal life (ie loss of job/health/safety issues). The party seeking Transfer would also have to prove that the latter is irreparable in monetary terms. Once party to the case who has filed Transfer Petition, is able to prove as mentioned above, he/she would also have to prove that he/she won’t suffer similar losses if the proceedings are transferred. Hence it is a double burden of proof for the party seeking Transfer of case.  If party to the case succeeds in proving as mentioned above, the balance of convenience is said to lie in favour of concerned party to the case, who has sought Transfer of case. In such cases Courts are usually inclined in favour of Women.

Usually Divorce cases, and cases related to custody of children, & case of Civil Nature can be transferred by Supreme Court, when Transfer Petition is filed under Section 25 of Civil Procedure Code. Matrimonial Disputes may also involve cases, which are generally in nature of "Criminal Cases" like Maintenance Application under section 125 Cr.PC or a Application under Domestic Violence Act, which may be sought to be transferred by filing Transfer Petition/Application before Hon'ble Supreme Court of India, under section 406 Cr.PC or by filing Special Leave Petition (SLP) under Article 136 of Constitution of India.