In India, matrimonial disputes such as divorce, maintenance, child custody, and domestic violence cases often lead to situations where one party seeks the transfer of the case from one state to another due to practical difficulties.
The Supreme Court of India has the power to transfer civil cases under Section 25 of the Code of Civil Procedure, 1908 (CPC) and criminal cases under Section 406 of the Code of Criminal Procedure, 1973 (CrPC).
1. Legal Provision for Transfer of Matrimonial Cases
Section 25 of CPC: Transfer of Civil Cases
Section 25 of the CPC grants the Supreme Court the power to transfer any civil case, including matrimonial cases, from one state to another if it believes that doing so is necessary for justice.
Key Features of Section 25 CPC:
- The Supreme Court has discretionary power to allow or reject the transfer.
- The transfer is allowed if there is a genuine apprehension of bias, harassment, inconvenience, or safety concerns for the petitioner.
- This provision applies to divorce, maintenance, restitution of conjugal rights, child custody, and other family disputes.
Section 406 of CrPC: Transfer of Criminal Cases
If the matrimonial dispute involves criminal proceedings, such as those under Section 498A IPC (Cruelty by Husband or Relatives) or domestic violence cases, the transfer can be requested under Section 406 of CrPC.
Key Features of Section 406 CrPC:
- The Supreme Court has the power to transfer criminal cases from one state to another.
- The transfer can be allowed if the petitioner fears bias, lack of a fair trial, or threat to life and safety.
2. Common Reasons for Seeking Transfer of Matrimonial Cases
Matrimonial cases are usually filed where the husband resides. However, in several instances, the wife finds it difficult to travel to another state due to:
- Distance and Financial Constraints – The wife may not be financially independent and may find it difficult to attend court proceedings far from her place of residence.
- Threat to Safety and Security – If the wife fears physical harm, harassment, or undue pressure from the husband and his family, she may seek a transfer.
- Health Issues – If the petitioner has health conditions that make travel difficult, the Supreme Court may consider a transfer.
- Convenience of the Parties – The transfer is granted if one party can demonstrate significant hardship in attending court in the original jurisdiction.
- Interests of Justice – If the case is being influenced unduly due to bias, social pressure, or political connections, a transfer may be necessary for a fair trial.
3. Procedure to File a Transfer Petition in the Supreme Court
Step 1: Drafting the Transfer Petition
The petitioner (usually the wife) must prepare a Transfer Petition addressed to the Supreme Court, including:
- Case details (title, case number, court where pending)
- Reason for seeking transfer (safety concerns, financial constraints, etc.)
- Legal grounds under Section 25 CPC or Section 406 CrPC
- Prayer clause requesting the Supreme Court to transfer the case
- Annexures (supporting documents such as medical certificates, police complaints, etc.)
Step 2: Filing the Transfer Petition
The petition is filed in the Supreme Court through an advocate-on-record (AOR). The Supreme Court Registry verifies the documents and assigns a case number.
Step 3: Notice to the Opposite Party
The Supreme Court issues a notice to the respondent (opposite party), seeking a reply. The petitioner must serve the notice to the respondent through registered post with acknowledgment due and submit an affidavit of service confirming delivery.
Step 4: Reply by the Respondent
The respondent may file a counter-affidavit opposing the transfer, citing their own reasons for why the case should remain in its current jurisdiction.
Step 5: Hearing Before the Supreme Court
The Supreme Court conducts hearings where both parties present their arguments. The Court considers factors such as convenience, safety, financial constraints, and the interests of justice before deciding.
Step 6: Final Judgment
The Supreme Court, after hearing both sides, may:
- Allow the transfer, directing the lower court to send the case records to the new jurisdiction.
- Reject the transfer, requiring the petitioner to attend proceedings in the original court.
- Suggest Mediation, asking both parties to attempt settlement through the Mediation and Conciliation Center of the Supreme Court.
4. Documents Required for Filing a Transfer Petition
- Copy of the matrimonial case pending in the trial court
- Copy of FIR or complaint (if criminal case is involved)
- Medical certificates (if the petitioner has health issues)
- Proof of financial hardship (salary slip, bank statement, etc.)
- Police complaints, witness affidavits, or other evidence proving threats or harassment
- Affidavit supporting the transfer petition
- Vakalatnama (authorization for a Supreme Court advocate to represent the case)
5. Important Supreme Court Judgments on Transfer of Matrimonial Cases
- Sumita Singh v. Kumar Sanjay & Anr. (2002) 10 SCC 41
- The Supreme Court held that in matrimonial disputes, the convenience of the wife must be given primary importance while deciding transfer petitions.
- Arti Rani v. Dharmendra Kumar (2012) 9 SCC 320
- The Court reiterated that financial and physical hardship faced by the wife is a strong ground for transfer of a matrimonial case.
- Anindita Das v. Srijit Das (2006) 9 SCC 197
- The Supreme Court rejected a transfer petition because the petitioner was financially independent and did not have valid reasons to claim hardship.
- Rajwinder Kaur v. Balwinder Singh (2012) 6 SCC 742
- The Court emphasized that if the wife has a small child or serious health issues, transfer should be granted.
6. Can a Husband File a Transfer Petition?
Yes, but the Supreme Court generally favors transfer petitions filed by wives due to practical difficulties they face. However, if the husband can prove extreme hardship, bias, or financial constraints, the Court may consider his request.
7. What Happens After the Transfer is Granted?
- The trial court is directed to send the case records to the new jurisdiction.
- The petitioner and respondent must appear before the new court for further proceedings.
- The case continues without affecting the merits.
8. Conclusion
The Supreme Court of India has wide discretion under Section 25 CPC and Section 406 CrPC to transfer matrimonial cases from one state to another when there are valid reasons such as financial hardship, threats, bias, or inconvenience. The process involves filing a Transfer Petition, serving notice, submitting an affidavit, and attending hearings.
Women often get priority in transfer petitions, but each case is decided on its merits. Filing a well-drafted petition with strong documentary evidence increases the chances of getting a transfer approved.
Important: Kindly Refer New Corresponding Sections of Bharatiya Nyaya Sanhita 2023, (BNS); Bharatiya Nagarik Suraksha Sanhita 2023, (BNSS); & Bharatiya Sakshya Adhiniyam 2023, (BSA) for IPC; CrPC & IEA used in the article.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304