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Transfer petition in Supreme Court, how to defend/file Transfer petition in supreme Court

GOPAL VERMA ADVOCATE ON RECORD SUPREME COURT OF INDIA

Transfer Petition in Supreme Court of India, How to file/defend Transfer Petition in Supreme Court of India

After seeing the legal profession closely for decades I once thought of writing about transfer of matrimonial litigations by the Hon’ble Supreme Court, hence this…

This article is dedicated to all those who are willing to get the transfer the ongoing litigation initiated by their spouse (or by someone else) to the place at their convenience.  See, the transfer of proceedings pending in a court (transferor court) to the place convenient to the party seeking transfer (i.e. transferee court) can only take place by the order of the Court.  Therefore, one will have to understand that in case the party seeking transfer of the pending proceedings to a Court which is situated within the same state where the proceedings initiated by the other party is located then the Court of jurisdiction to seek directions for transfer is the High Court of the same state under Section 24 of the Code of Civil Procedure (CPC), 1908 for civil case and under Section 407 of the Code of Criminal Procedure (CrPC), 1973 for criminal case. However, in case the proceedings are to be transferred from one state to another, the power is vested with the Hon’ble Supreme Court of India under the provisions of Section 25 of the Code of Civil Procedure, 1908 for civil case and Section 406 of Code of Criminal Procedure, 1973 for criminal case. This distinction of jurisdiction has been created by the statute.

Let me tell you now as to how the Hon’ble Supreme Court has dealt with the transfer petitions and what are the orders normally passed and also a glimpse of what the transfer petition is all about.  It is quite unfortunate that presently the Courts are flooded with matrimonial litigations between husband and wife like Dowry Cases, Divorce, Domestic Violence, Annulment of Marriage, Maintenance, Restitution of Conjugal Rights, Child Custody etc. etc. which are instituted either of the spouse (or by someone else). The reasons of knocking the doors of the Court I live it to the wisdom of the duo.

Covid-19 pandemic has witnessed quite an upsurge in such cases and therefore I once thought of sharing my view on the subject. I have seen that in many cases the Hon’ble Supreme Court while considering the Transfer Petitions filed by the wife, has considered various common grounds including:-

It is crucial to note here that in any case any order is obtained from the Court by the spouse ex-parte during the pendency of the Transfer Petition is liable to be set aside as per Usha v. Palisetty 2002 10 SCC 544. In fact, these proceedings are seen as a tool to bring down the other side to negotiating terms.

Following are the relevant aspects for the purpose of transfer petition:

 

Few Cases where Transfer Petition filed by wife, was allowed –

  1. Deepa v. Anil Panicker (2000) 9 SCC 441 – Suit Transferred from Ranchi, Jharkhand to Trichur, Kerala on basis of distance, time travel is 2 days, on the basis of financial burden and inability of wife to travel alone.
  2. Sumita Singh v. Kumar Sanjay (2001)10 SCC 41 – Case was transferred from Arrah, Bihar to Delhi as wife was working at Delhi. Wife’s convenience was given priority.
  3. Varsha Paresh Shah v. Paresh H. Shah (2002) 10 SCC 81 – Case transferred from Bombay to Delhi as wife was not able to travel alone.
  4. LeenaMukherjee v. Rabi Shankar (2002) 10 SCC 480 -Wife stated that there are no financial resources and with a meager income which she gets by way of maintenance, it is not possible for her to travel from Durgapur, West Bengal to Delhi to prosecute the case and there is nobody to accompany her to Delhi. Hence it was transferred.
  5. Mona Goel v. Aresh Goel (2002) 10 SCC 480 – Case was transferred from Bombay to Delhi on ground of physical & financial inability of wife to contest at Bombay.
  6. Mangla Patil Kale v. Sanjeev Kumar Kale (2003) 10 SCC 280 – Case transferred from Delhi to Jalgaon, Maharashtra as distance was 1,260 k.m, wife’s parents can’t accompany her and that she had a small daughter.
  7. Shivaram (2003) 8 JT 306 – Case was transferred from Hyderabad to Kottayam, Kerala as wife had apprehension to her life at Hyderabad.
  8. Rajwinder Kaur v. Balwinder Singh (2003) 11 SCC 726 – Case transferred from Barmer, Rajasthan to Chandigarh. Distance 700 kms, Minor daughter of 4 yrs and she can’t travel alone was considered.
  9. Amita Shah v. VirenderLal (2003) 10 SCC 609 – Case was transferred on basis of distance between places. Time of travel was 13-14 hrs & no one to accompany wife who had a Minor child to look after was considered. Held that convenience of wife and child to be considered.
  10. Soma Choudhury v. Gaurab Chaudhury (2004) 13 SCC 462 – Distance was 1700 Km from Tripura to West Bengal. Hence Transferred.
  11. RoopaliSaxena v. Anil Saxena (2004) 13 SCC 495–Transferred from Indore to Jhansi due to no source of income & no maintenance was paid by husband.
  12. Rajani Kishore Pardesh v. Kishore Babulal (2005) 12 SCC 237 – Case was transferred from Mumbai to Madhya Pradesh and held that convenience of the wife is to be noted.
  13. Rajni Kumari v. Raghvinder Sahai(2009) 1 Scale 315 – Wife stated that there is no source of Income, dependent on Parents; distance from Bihar to Delhi is 1500 Km. Hence it was transferred.

 

See, the judgments cited above shows the trend earlier where this Hon’ble Court was more inclined towards convenience of ladies. However, it has been noticed in the recent past that now it entirely depends ONLY on the facts and circumstances of each case.

 

Few Cases Where Husband was successful in defending the Transfer

  1. One of the parents of the wife can look after the child and another can accompany her. Parties took this stand in Anindita Das v. Surjit Das (2006) 9 SCC 197 and also in Rachna Jawa v. RajatJawa T.P. (CIVIL) NO. 27 OF 2005.
  2. In Preeti Sharma v. Manjeet Sharma (2005) 11 SCC 535 Supreme Court held that merely because she is a lady does not mean that she cannot travel a distance of just 8 hours.
  3. When the wife asked for the travelling expenses the husband pleaded that this will be paid on actual basis. Transfer not allowed in Meena Sanooj v. Sanooj B. TP (Civil) NO.191 OF 2005; Reema Sethi v. Deepak Sethi (2005) 11 SCC 568, Sinjini Sensarma v. Partha Sarathi Sensarma T.P.(Civil) No. 24/2005.
  4. Apprehension of fear to her life was rejected by the Court in Preeti Sharma v. Manjeet Sharma (2005).
  5. In Anandita Das v. Sirjit Dey (2006) Supreme Court held that at one stage it 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 leniency shown by the Supreme Court.
  6. In Gayatri Mohapatra v. Ashit Kumar Panda (2003), Court found wife being a Director in a Company run by her mother travelled from place to place and could not be permitted to state that she was incapable of travel as a ground to seek transfer of the husband’s case.
  7. In Seema v. Rakesh Kumar (2000) 9 SCC 271 – Husband’s suit for restitution of conjugal rights transferred from Ghaziabad, Uttar Pradesh to Jagadhri, Haryana despite wife putting in appearance at Ghaziabad, Uttar Pradesh on account of financial inability of wife.
  8. Recently, in RajkumarSabu vs. M/S Sabu Trade Private Limited [Transfer Petition (Criminal) No. 17 of 2021] Court stated that inability to understand the language spoken in Court is not a ground to seek transfer. “Convenience” of a person involved in a case had never been a criterion for transferring a case out of a State. Cases were transferred to serve the ends of justice. This argument may be used by Husband if wife raises similar plea.

 

FAQ:-

  1. Can a Transfer Petition be allowed by Hon’ble Supreme Court without issuing notice and hearing the respondent/ or the person who had instituted the case at local level?

                                                                        (Specimen of the order passed on first date)

As a rule, the Hon’ble Supreme Court does not allow Transfer Petition without issuing notice to the respondent. Audi Alteram Partem is the principle of natural justice where every person gets a chance of being heard. However, post notice if the respondent does not appear than ex-parte order of transferring the case may be passed (See, Gyanmati Yadav v. Ram Sagar Yadav, (2013) 14 SCC 621).

In recent case of Rajendra Khare v. Swaati Nirkhi, 2021, the Supreme Court allowed the transfer petition on the very first date without issuing notices to the respondent and even the informant was not made party. On review petition filed by the actual informant, the Court in its true wisdom had to revive the Transfer Petition by exercising its powers under Article 137 of Constitution read with Rule XLVII of the Supreme Court Rules.

  1. Can the parties mediate and file for mutual divorce before Supreme Court under the Transfer Petition?

Efforts of the Court are to save marriage however in case the parties are willing to settle their dispute and make such averment in their affidavits before the Supreme Court, then mediation is allowed under supervision of Supreme Court Mediation Centre & depending on the outcome, final order is passed.  In Sandhya M. Khandelwal v. Manoj M. Khandelwal, (1998) 8 SCC 369 during the pendency of the Transfer Petition both parties filed joint petition as per the settlement before the Court voluntarily and keeping in mind the interests of both the parties and the minor son, divorce was granted.

  1. Usually how long does it take in Supreme Court for decision on Transfer Petition?

As per the procedure given under Order 41 of the Supreme Court Rules 2013, the transfer petition on first hearing date is posted before the Court for preliminary hearing and orders as to issue of Notice. If Court is not convinced that prima facie a case of transfer is not made out then it may dismiss the Petition. However, in case prima facie case of transfer is made out the Court issues notice to the other side to show cause as to why the petition should not be transferred.  In the entire process normally it takes two to six months [subject to other factors] in adjudication of transfer petitions.

  1. Can a second transfer petition be filed after dismissal of the earlier one?
  1. The petitioner can file an application to reopen her evidence,
  2. The family court on such application should restore the evidence of the petitioner,
  3. a firm date should be announced in case of cross-examination of the petitioner by the counsel of the respondent and on every occasion where the petitioner’s physical presence is requested,
  4. The respondent should pay a sum of 10,000 rupees toward travel expenses.
  1. Can the proceedings take place through video conferencing?

There has always been a debate about involvement of the technological developments in holding proceedings of this nature.

However, this Judgement was subsequent partly overruled in Santhini vs. Vijaya Venketesh TP (Civil) No. 422 of 2017 by a Three Judges Bench wherein majority judges was held that-

  1. After considering Section 11, 9, 10 of Family Courts Act, 1984, videoconferencing upon the request of only one party is impermissible
  2. Videoconferencing may be allowed if Family Court finds it appropriate and either upon consent and application of both parties.
  3. Direction for videoconferencing cannot be passed in Transfer petitions. Physical presence is essential as it creates environment of trust, confidentiality, privacy and emotional bond. Videoconferencing without consent of both parties would affect the rights to dignity, privacy, choice of women. Desirable to hear such types of matrimonial cases in Court and maintaining confidentiality of such cases. Judgement is applied prospectively.
  4. Family Judge has to be very sensitive, should be conscious about timely delineation. Preamble of Family Courts Act provides for established of family Courts with view to promote conciliation in and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. Patience is the needed quality for arriving at the settlement. Family Court judge should neither be a slave to concept of speedy settlement nor to concept of hurried disposal. Balanced view has to be taken.
  5. Reconciliation requires physical presence of both parties at same place and same time for effective conduction. Geographical distance will distant the possibility of reconciliation in the matter law commands.
  6. No provision in Family Courts Act that family Court judge can take recourse of video conferencing. What one party can communicate with other, if they are left alone for some time, it is not possible in videoconferencing and it is very doubtful whether emotional bond can be established. Likely to hamper process of settlement.
  7. If either the parties gives consent, the case can be transferred as held in Krishna VeniNagam case is absolutely unacceptable. Statutory right of woman cannot be nullified by taking route of technological advancement.

Hon’ble Justice D.Y. Chandrachud dissented from the above judgement forming his independent opinion & held that –

  1. Section 11 of Family Courts Act has two situations: the first where the Family Court so desires; and the second if either the parties so desires. Section uses the expression “may” and “shall”. There is discretion to order in camera trial. However, when a party desires an in-camera trial, it is obligatory to do so.
  2. Section 9 clearly recognizes discretion of Family Court to determine how to structure the process as it adopts the words “where it is possible to do so consistent with nature and circumstances of the case”. Section 23 (2) of Hindu Marriage Act is to make every endeavor to bring about a reconciliation between the parties, “where it is possible to do so consistently with nature and circumstances of the case”. Moreover High Court can frame rules under Section 9 (1) and Family Court, may subject to those rules, “follow such procedure as deem fit”. Section 10 (3) enables Family Court to lay down its own procedure. All provisions apply parties equally, regardless of gender, they are gender neutral. General Discretion to Family Court to evolve the procedure for hearing during any case. These provisions sufficiently enabling to allow the Family Court to utilize technological advances in achieving justice and resolving family conflicts and it provides flexibility.
  3. General belief that process of reconciliation requires physical presence of both parties at same time and at same place.
  4. Videoconferencing transmits video, audio and data across a communication network enabling geographically dispersed participants to meet synchronously. “The general keyword associated with this is interactivity. This allows real time visual and audio contact between two or more persons at different geographical locations.” Emotional attachment which people can develop when they are in the same physical space cannot be undermined.
  5. It would not be recorded to maintain privacy and intimate confidences. Family Court Act, 1984 was enacted at a point in time when modern technology (at least we know it today) and connecting face to face was not as fully developed. Therefore, no reason for exclusion of application of technology to facilitate judicial process. Supreme Court should not set such precedents for nation. Exclusion is not there of Videoconferencing in Family Courts Act or any other law.
  6. Appropriate development of technology facilities access to justice and Family Court Act is no exception to this principle. Modern technology is above all a facilitator. Videoconferencing is used in online teaching, administration, meetings, mediation, telemedicine as it reduces time and cost of travelling. Judge can access the recorded videos later if he/she wants to for judgment delivery. Repeated adjournments break the back of the litigant.
  7. There will denial of access to justice if videoconferencing is not made available.
  8. Many Countries laid down guidelines for use of videoconferencing in Courts and it is also accepted academically. Whether videoconferencing to be allowed or not, the decision should be left to High Courts while framing rules on the subject.
  9. Even prior to Krishna Veni Nigam various High Courts have already allowed video conferencing in matrimonial disputes. These cases are important. High Courts of each state are aware of social and economic circumstances prevailing there and the feasibility of adopting technology. These decisions must be given credence because unless there is manifest failure of justice under law or cause of public injury, assessment by High Courts of local conditions ought to be respected. Voice from within the judiciary in a federal structure should merit close listening by the Supreme Court. This is the mandate of a vibrant federal structure. Guidelines have developed through the case law.
  10. Family Courts must encourage the use of technology to facilitate speedy and effective solutions. Whether it should be adopted in a particular case must be left to the judicious view of the Family Court.

 

Summing up

As a lawyer, we all are already grappling with what we may call video conference vagaries since beginning of the lockdown.  In fact, the story of the interface of a litigant with the Court being mediated by a video link started with an amendment in Section 167(2)(b) of the CrPC, which provides, extension of judicial custody could only be done when the accused was produced in person before the magistrate.  Andhra Pradesh seems to have been the first to insert a state amendment to the CrPC in 2000, by inserting words at the end of that clause to the effect that such production before the Magistrate could be in person or by “electronic video linkage”. Similar amendments were made by various other states, and finally brought in at the all-India level in 2009.

Delhi High Court stated some minimum requirements for application of videoconferencing in all cases. It can be borne by such party as Court may direct.  E.g. A desktop or laptop with internet connectivity and printer, Device ensuring uninterrupted power supply, Video Camera, Microphones and speakers, Display unit etc. etc.

Travelling was an inconvenience when Hon’ble Supreme Court considered Krishna case, however, travel is an immense burden and a risk to life today during Covid-19 pandemic. To my mind, the comfort levels of Courts and Lawyers with video conference have increased. Courts have framed fairly detailed rules for video conference and e-filing. Today’s videoconferences is secure and do not pose a threat to privacy. Thus, in the compelling circumstances, I am of the view that dissenting view of Hon’ble Justice D.Y. Chandrachud in Santhini v VijayaVenketesh case should be considered.

The COVID-19 pandemic changed the scenario completely. Hon’ble Supreme Court suo motu took up the case In Re: Guidelines for court functioning through video conferencing during COVID-19 pandemic on April 6, 2020 and directed that the High Court shall take all measures to reduce the presence of the stakeholders in the Court Compound while at the same time maintaining the robust functioning of the judicial system through video conferencing.  Thus, it has now become imperative to revisit the earlier rulings on this aspect…

 

Beyond the relief of Transfer

There is one more crucial aspect which has been noticed and it is about invocation of powers vested under Article 142 of Constitution to do complete justice between the parties.  Rightly so, the Hon’ble Supreme Court whenever it is brought to the notice of the Court that in some cases it would be a futile exercise to transfer the proceedings invokes the power vested under Article 142 and passes appropriate orders e.g. a decree of divorce when there is irretrievable breakdown of marriage. Article 142 allows Supreme Court to pass any order necessary to do ‘complete justice’ in any “cause” or “matter” pending before it. The expression “cause” or “matter” would include any proceeding pending in court and it would cover almost every kind of proceeding in court including civil or criminal.

In a case of Sangeeta v. Suresh Kumar, (2000) 9 SCC 442 parties who were married developed some misunderstandings, so husband filed divorce petition. Wife filed a transfer petition before the Hon’ble Supreme Court and husband responded by saying that he was willing to withdraw the divorce petition, in case the wife was ready and willing to settle with him and restore marital life. The Court saw a ray of hope between the parties and suggested to them to settle the disputes and bury their differences and start afresh keeping in view the welfare and interest of their 4 years old girl child. Thus, the Court instead of transferring the case, as requested by the wife, made a fruitful effort to restore a married life. Similar view was accepted in Davinder Kaur v. Manpreet Singh Ahluwalia, 2001 SCC OnLine SC 90

In SanghamitraGhosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220 Hon’ble Supreme Court exercised its powers under Article 142 to do complete justice and directed that the cases pending between the parties are disposed of in view of the settlement between the parties and pending cases were disposed according to the settlement.

In Sneha Parikh v. Manit Kumar, (2018) 4 SCC 501 Hon’ble Supreme Court invoked Article 142 and granted parties divorce by mutual consent and also quashed the FIR lodged by the wife u/s 498A, 406 and 506 IPC.

In Puja Chaudhary vs. Pradeep Chaudhary [T. P. (Civil) No. 422 of 2019], the case was referred for mediation and parties agreed for mutual compromise, one time alimony, divorce and withdrawal of criminal cases.

Recently in Dr. Ina Jain v. Dr. Deepak Jain (T.P. (Civil) No. 144 of 2021) parties were referred to Supreme Court Mediation Centre and marriage was dissolved according to settlement. Court exercised powers under Article 142.

In Dipankar Debapriya Haldar v. Teesta Dipankar Haldar, 2021 SCC OnLine SC 295 parties were referred to mediation centre and settlement was made. Court disposed the petition in terms of the settlement.

Similar views were expressed in the following cases as well: NitaSabharwal v. Anil Sabharwal (1997) 11 SCC 490; Swati Verma v. RajanVerma [(2004) 1 SCC 123; Naveen Kohli v. NeeluKohli [(2006) 4 SCC 558 ; AviralBhatla v. BhawnaBhatla, (2009) 3 SCC 448; Alok Mishra v. Garima Mishra, (2009) 12 SCC 270; NeetiMalviya v. RakeshMalviya, (2010) 6 SCC 413; Payal Jindal v. A.K. Jindal, 1995 Supp (4) SCC 411; S.G. RajgopalanPrabhu v. Veena, (2010) 12 SCC 537; Harpreet Singh Popli v. ManmeetKaurPopli, (2010) 15 SCC 316; Harpreet Singh Popli v. ManmeetKaurPopli, (2010) 15 SCC 316 K. Srinivas vs. K. Sunita (2014) 16 SCC 34;Harish ChanderDrall vs. Sureshwati (2014) 9 Scale 1; Aviral Bhatia vs. Bhawna Bhatia (2009) 3 SCC 448; AnujGarg vs. VikasGarg (2015) 2 Apex Court Judgment SC 80; Kiran vs. SharadDutt (2010) 10 SCC 243; Vishwanath Agrawal vs. Sau.Sarla Vishwanath Agrawal (2012) 7 SCC 288; Durga Prasanna Tripathi vs. Arundhati Tripathi (2005) 7 SCC 353; Harprit Singh Anand v. State of HP (2004) 10 SCC 505)

However, in Sabita Shashank Singh Vs. Shashank Shekhar Singh (T. P. (C) NO. 908 OF 2019) Hon’ble Supreme Court recently held that Single Bench hearing Transfer Petition cannot invoke Article 142 to pass a decree dissolving marriage by Mutual Consent.

Recently, in Neha vs. Vaibhav Kumar (T.P. (C) 83/2019) Justice Abhay S. Oka, observed that while hearing the Transfer Petition single bench cannot pass a decree by mutual consent under Section 13 B of Hindu Marriage Act, 1955 read with Article 142 of Constitution. Judge referred to Proviso to Rule 1 of Order VI of the Supreme Court Rules, as per which the jurisdiction of a Judge sitting singly is confined to grant relief under Section 25 of the Code of Civil Procedure, 1908. Therefore, the judge directed the registry to place the petition before the Chief Justice for necessary directions. Unless Hon’ble the Chief Justice exercises his powers under Clause (iv) of Proviso to Rule 1 of Order VI of the said Rules, I cannot pass a decree of divorce sitting singly the judge stated.

Justice Aniruddha Bose also had opined earlier that an order of decree of dissolution of marriage by mutual consent cannot be granted by Single Judge and the same can be done only by Division Bench.

However, last month, Justice V. Ramasubramanian, sitting singly, disposed a transfer petition by passing a decree of dissolution of the marriage. Similar order was also passed by Justice Krishna Murari.

Recently in Shilpa Sailesh v. Varun Sreenivasan (T. P. (Civil) No. 1118 of 2014) the power vested under Article 142 of Constitution is being revisited by Five Judges Constitution Bench and case is currently pending with following questions which will decide the controversy-

  1. What could be the broad parameters for exercise of powers under Article 142 to dissolve a marriage between the consenting parties without referring the parties to the Family Court to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act?
  2. Whether the exercise of such jurisdiction under Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case?

 

Other few important cases

 

Few recent cases –

 

Last but not the least –

I quit with the following words of Justice Y.V. Chandrachud, Former Chief Justice of India from Deena v. Union of India (1983) 4 SCC 645–

“No one of course can question that law is a dynamic science, the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to read just its postulates in order to accommodate those trends. But, that is not to say that judgments rendered by this Court after a full debate should be reconsidered every now and then and their authority doubted or diluted. That would be doing disservice to law since certainty over a reasonably foreseeable period is the hall-mark of law.”

So, the various judgements of the Hon’ble Supreme Court reflects both the viewpoints i.e. sometimes Court does not tilt towards the wife if the grounds stated in the Petition are not warranting exercising the principle of “expedient for the ends of justice” and are being misused by wife and such petitions are dismissed in limine at the admission stage without even issuance of a notice to the Respondent. However, in some cases the petitions are heard on merits after issuance of notice as has been seen in the preceding paragraphs.

I believe that “expedient for the ends of justice” phrase used in the Section 25 of Code of Civil Procedure is of wide amplitude. “Justice” word is also capable of different viewpoints. Constitution Preamble says it can be social, economic and political. Not only must Justice be done, it must be also be seen to be done. Family Court judge should neither be a slave to concept of speedy settlement nor to concept of hurried disposal. Balanced view has to be taken.

‘When the Law ceases to reflect the realities of Life, it is the Law that will Change’. To my mind, law, unlike many aspects of the society, is dynamic in nature and tends to outgrow the constraints and impositions of the system in place. Law and society are related to each other. Nothing in the functionality of the system can be explained without either of them. Society can transform into chaos in the absence of law.

My efforts are only to give a broader view of understanding about the subject matter of transfer of proceedings. I may please be excused if I have not covered some points…

 

The author is an Advocate on Record & Amicus Curiae at the Hon’ble Supreme Court of India and may be approached at vermag@aol.in in case of any clarification/assistance on the subject matter. To read more about the author visit: https://about.me/gopalvermaadvocate

(As per Supreme Court Rules 2013, no Advocate other than an Advocate on Record shall be entitled to file an appearance or act for a party in the Supreme Court of India)

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