After seeing the legal profession closely for decades, I decided to write about the transfer of matrimonial litigations by the Hon’ble Supreme Court. Hence, this article.
This article is dedicated to all those who are willing to get to 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 that is situated within the same state where the proceedings initiated by the other party is located, then the Court of jurisdiction before which the party can seek directions for transfer is the High Court of the same state under the provisions of Section 24 of the Code of Civil Procedure, 1908, for a civil case and under Section 407 of the Code of Criminal Procedure, 1973 for criminal case [e.g. one party files a case in Nagpur, Maharashtra, and the other party seeks direction to transfer the pending proceedings to Pune, Maharashtra, or at any other place falling within the state of Maharashtra].
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 a civil case and Section 406 of Code of Criminal Procedure, 1973, for a criminal case. This distinction of jurisdiction has been created by the statute.
Let me now tell you how the Hon’ble Supreme Court deals with the transfer petitions and what are the orders normally passed, along with giving 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 — including dowry cases, divorce, domestic violence, annulment of marriage, maintenance, restitution of conjugal rights, child custody etc., all of 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.
The Covid-19 pandemic has witnessed quite an upsurge in such cases and therefore, I decided to share my view on the subject. I have observed that in many cases, the Hon’ble Supreme Court, while considering the Transfer Petitions filed by the wife, has considered various common grounds including distance, no source of income by wife, lack of companion to travel, threat, husband willingness to pay travelling expenses etc. It is crucial to note here that in case any order is obtained from the Court by the spouse ex-parte during the pendency of the transfer petition, the same is liable to be set aside. In fact, these proceedings are seen as a tool to bring down the other side to negotiating terms.
Normally, the following aspects have to be elaborated in the transfer petition:
- Short synopsis with a list of dates
- Transfer petition along with grounds
- A copy of the divorce petition and the summons issued by the Family Court along with other relevant documents etc.
- Application for Ad-interim ex-parte stays with interim relief.
A Few Cases Where Transfer Petition Of Wife Was Allowed
- 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 the financial burden and the inability of the wife to travel alone.
- Sumita Singh v. Kumar Sanjay (2001)10 SCC 41 – Case was transferred from Arrah, Bihar to Delhi as the wife was working at Delhi. The wife’s convenience was given priority.
- Varsha Paresh Shah v.Paresh H. Shah (2002) 10 SCC 81 – Case transferred from Bombay to Delhi as the wife was not able to travel alone.
- LeenaMukherjee v. Rabi Shankar (2002) 10 SCC 480 -Wife stated that there are no financial resources and with a meagre 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.
- Mona Goel v. AreshGoel (2002) 10 SCC 480 – Case was transferred from Bombay to Delhi on grounds of physical and financial inability of the wife to contest at Bombay.
- Mangla Patil Kale v. Sanjeev Kumar Kale (2003) 10 SCC 280 – Case transferred from Delhi to Jalgaon, Maharashtra as the distance was 1,260 k.m, wife’s parents can’t accompany her and that she has a small daughter.
- Shivaram (2003) 8 JT 306 – Case was transferred from Hyderabad to Kottayam, Kerala as the wife had apprehension to her life at Hyderabad.
- RajwinderKaur 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 considered.
- Amita Shah v.VirenderLal (2003) 10 SCC 609 – Case was transferred on basis of the distance between places. Time of travel: 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.
- Soma Choudhury v. Gaurab Chaudhury (2004) 13 SCC 462 – Distance was 1700 Km from Tripura to West Bengal. Hence Transferred.
- RoopaliSaxena v. Anil Saxena (2004) 13 SCC 495–Transferred from Indore to Jhansi due to no source of income & no maintenance was paid by the husband.
- 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.
- 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 show the earlier trend, where the Hon’ble Court was more inclined towards the convenience of women. However, it has been noticed in the recent past that now, the transfer depends only on the facts and circumstances of each case.
Cases Where Husband Was Successful In Defending The Transfer
- Where 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.
- InP. (CIVIL) NOS.117-118 OF 2004 Preeti Sharma v. Manjeet Sharma (2005) 11 SCC 535 Hon’ble Supreme Court held that merely because she is a lady does not mean that she cannot travel a distance of just 8 hours.
- When the wife asked for the travelling expenses, the husband pleaded that this will be paid on an actual basis. Transfer not allowed in MeenaSanooj v. Sanooj B. TP (Civil) NO.191 OF 2005; ReemaSethi v. Deepak Sethi (2005) 11 SCC 568, Sinjini Sensarma v. Partha Sarathi Sensarma T.P.(Civil) No. 24/2005.
- Apprehension of fear to her life was rejected by the Court in Preeti Sharma v. Manjeet Sharma (2005).
- In Anandita Das v. Sirjit Dey (2006): Hon’ble 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.
- In Gayatri Mohapatra v. Ashit Kumar Panda (2003), the Court found the 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.
- Recently, in RajkumarSabu vs. M/S Sabu Trade Private Limited [Transfer Petition (Criminal) No. 17 of 2021], the Court stated that the inability to understand the language spoken in the Court is not a ground to seek a transfer. The “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 the husband if the wife raises a similar plea.
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 the local level?
(Specimen of the order passed on the first date)
As a rule, the Hon’ble Supreme Court does not allow a 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 a notice if the respondent does not appear, then ex-parte order of transferring the case may be passed (See, Gyanmati Yadav v. Ram Sagar Yadav, (2013) 14 SCC 621).
In the 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 the 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 the Constitution read with Rule XLVII of the Supreme Court Rules.
2. Can the parties mediate and file for mutual divorce before the Supreme Court under the Transfer Petition?
The efforts of the Court are to save a 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 the guidance and supervision of the Supreme Court mediation and Conciliation Centre and depending on the outcome, the 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 a joint petition incorporating the terms of the settlement before the Court voluntarily and keeping in mind the interests of both the parties and the minor son the divorce petition was treated like a divorce petition by mutual consent and divorce was granted.
3. Usually how long does it take in the Supreme Court for a decision on Transfer Petition?
As per the procedure given under Order 41 of the Supreme Court Rules 2013, the transfer petition on the 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 the adjudication of transfer petitions.
4. Can a second transfer petition be filed after the dismissal of the earlier one?
- In the Amruta Ben Himanshu Kumar Shah vs. Himanshu Kumar Pravinchandra Shah [T.P. (Civil) No. 2344 of 2019], the petitioner filed a petition to transfer her restitution of conjugal rights case from Gujarat to Mumbai. This first petition was dismissed. Again, the petitioner (wife) approached with a new transfer petition on the ground that the circumstances have changed since then and stated that her mother has passed away and a family Court has dismissed her application for claiming travel charges from the husband. The husband contended that once a transfer petition has been dismissed, a second petition should not be maintained. On the maintainability issue, Justice V. Ramasubramaniam agreed with the petitioner and held it cannot be considered as res-judicata. Supreme Court though rejected the transfer of case but issued certain directives in favour of the petitioner (wife) that includes:
- The petitioner can file an application to reopen her evidence.
- The family court on such an application should restore the evidence of the petitioner.
- 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.
- The respondent should pay a sum of 10,000 rupees toward travel expenses.
- In Nirmala Sharma v. Bhavesh Sharma [T. P. (Civil) No. 351 of 2021], it was held that a second transfer petition is not maintainable. Hon’ble Justice Krishna Murari stated: “Earlier, transfer application filed by the petitioner was dismissed vide order dated 24.10.2019. This is the second application that is not maintainable. The Transfer Petition is dismissed.” There may not be changed circumstances as mentioned in the abovementioned case that stated that the second transfer petition is not considered as res-judicata. Both Single Judges had different viewpoints.
5. Can the proceedings take place through video conferencing?
There has always been a debate about the involvement of technological developments in holding proceedings of this nature.
- In Shewta Sharma v Manish Radheshyam Sharma TP (C) 1710 Of 2015, the Court allowed video conferencing.
- In Krishna Veni Nagam vs. Harsh Nigam (2017), a bench of Hon’ble Justice AK Goel and UU Lalit held that realising the inconvenience and expenses involved in long-distance travel and delay in judicial proceedings, the technological solutions should be used and directed all High Courts to pass administrative directions to all district and family courts to open their own video conferencing facilities. Transfer Petitions are “mechanically allowed” and many a time both spouses may face genuine difficulty and transfer is not always the solution acceptable to both the parties. Therefore, video conferencing was allowed.
However, this Judgement was subsequent partly overruled in Santhini vs. Vijaya Venketesh TP (Civil) No. 422 of 2017 by a Three Judges Bench wherein it was held that:
- After considering Section 11, 9, 10 of Family Courts Act, 1984, videoconferencing upon the request of only one party is impermissible
- Videoconferencing may be allowed if Family Court finds it appropriate and either upon consent and application of both parties.
- Directions for videoconferencing cannot be passed in Transfer petitions. Physical presence is essential as it creates an environment of trust, confidentiality, privacy and emotional bond. Videoconferencing without the 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 the confidentiality of such cases. Judgement is applied prospectively.
- A family judge has to be very sensitive to the cause before it, should be conscious about timely delineation. The preamble of the Family Courts Act provides for the establishment of Family Courts with a 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 judges should neither be a slave to the concept of speedy settlement nor to the concept of hurried disposal. A balanced view has to be taken.
- Reconciliation requires the physical presence of both parties at the same place and same time for effective conduction. Geographical distance will distant the possibility of reconciliation in the matter law commands.
- No provision in Family Courts Act states that the family Court judge can take recourse to video conferencing. What one party can communicate with another if they are left alone for some time, is not possible in videoconferencing and it is very doubtful whether an emotional bond can be established. This is likely to hamper the process of settlement.
- If either of the parties gives consent, the case can be transferred as held in the Krishna VeniNagam case is absolutely unacceptable. The statutory right of women cannot be nullified by taking the route of technological advancement.
Hon’ble Justice DY Chandrachud dissented from the above judgement forming his independent opinion and held that:
- Section 11 of the Family Courts Act has two situations: the first where the Family Court so desires; and the second if either the parties so desires. The section uses the expression “may” and “shall”. There is discretion to order in an in-camera trial. However, when a party desires an in-camera trial, it is obligatory to do so.
- Section 9 clearly recognises the discretion of the 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 the Hindu Marriage Act is to make every endeavour 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, which may be 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 to 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 utilise technological advances in achieving justice and resolving family conflicts and it provides flexibility.
- The general belief is that the process of reconciliation requires the physical presence of both parties at the same time and at the same place.
- 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.” The emotional attachment that people can develop when they are in the same physical space cannot be undermined.
- It would not be recorded to maintain privacy and intimate confidence. 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 the exclusion of the application of technology to facilitate the judicial process. Supreme Court should not set such precedents for the nation. Exclusion is not there of Videoconferencing in Family Courts Act or any other law.
- 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 the time and cost of travelling. The judge can access the recorded videos later if he/she wants to for judgment delivery. Repeated adjournments break the back of the litigant.
- There will be denial of access to justice if videoconferencing is not made available.
- Many countries laid down guidelines for use of videoconferencing in Courts and it is also accepted academically. Whether video conferencing to be allowed or not, the decision should be left to High Courts while framing rules on the subject.
- Even prior to Krishna Veni Nigam various High Courts have already allowed video conferencing in matrimonial disputes. These cases are important. The 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 the manifest failure of justice under law or cause of public injury, assessment by High Courts of local conditions ought to be respected. A 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 been developed through the case law.
- Thus, Justice Chandrachud is of the opinion that the 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.
My Views On Video Conferencing
As a lawyer, just like everyone else, I am also 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 the Section 167(2)(b) of the CrPC, which provides an extension of judicial custody could only be done when the accused was produced in person before the magistrate.
Andhra Pradesh is 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.
The Delhi High Court stated that some minimum requirements for application of videoconferencing in all cases. It can be borne by such party as Court may direct. Following is the requirement:
- A desktop or laptop with internet connectivity and printer
- Device ensuring uninterrupted power supply
- Video camera
- Microphones and speakers
- Display unit
- Document visualiser
- Comfortable sitting arrangement ensuring privacy
- Adequate lighting
- Proper acoustics
We can observe that the cost that may be required to be spent by the Courts for such setting up of video conferencing facility would not be much and it to be a one-time investment by the Judicial system. Travelling was an inconvenience when the Court considered Krishna case. However, travel is an immense burden and a risk to life today during the Covid-19 pandemic. To my mind, the comfort level of the Courts and the lawyers with video conferencing has increased. The Courts have framed fairly detailed rules for video conferences and e-filing. Today’s video conferences are secure and do not pose a threat to privacy. Video conference is a necessity now and not a choice; accordingly, the Courts should no longer wait for the consent of the parties for directing proceedings to take place by video conference. They should now move beyond reasoning adopted by the majority in Santhini case and not be tied down by various other legislations.
Dissenting views given by Justice DY Chandrachud in Santhini v VijayaVenketesh case should be considered heavily. A majority view should be reconsidered by more than three judges bench or the other three judges only. The minority view may become the majority view in changing times. Every statement of Justice DY Chandrachud’s minority judgement is logical and rational with supporting various case laws and provisions as I stated above. Judges have already stated that there is no provision in the Family Courts Act about the inclusion and exclusion of video conferencing. It is said that today is not yesterday, and so we ourselves change. No change is permanent, it is subject to change. This is observed in all spares of activity. Change indeed is painful, yet needful. Through change, we get a chance to refresh and recreate.
As we all know, technology has become the primary source since Covid-19 and was so to a larger extent even before it. People were not used to video calling applications. Technological changes mould our lifestyles significantly, the invention of radio, television, computers and automobiles is a major instance that has brought change in our lifestyles. It is being used to provide healthcare programmes for people who are hospitalised or in quarantine to reduce the risk of exposure to others and employees. Not just people’s mindset, but even laws need to be changed with the changing times. However, here the Sections 24, 25 of Code of Civil Procedure and Section 406 and 407 of Code of Criminal Procedure (relating provisions of Transfer Petition) may be correct, it is just the application of the these sections needs to be done in prudent and rational manner so as to achieve rule of law. If required, amendments may also be made.
The Covid-19 pandemic and the lockdown necessitated by it 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 that has been noticed during the pendency of the proceedings before Hon’ble Supreme Court. 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 a 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 the case of Sangeeta v. Suresh Kumar, (2000) 9 SCC 442, parties who were married developed some misunderstandings, so the husband filed a divorce petition in Delhi. The 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 them to settle the disputes, bury their differences and start afresh keeping in view the welfare and interest of their four-year-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. A similar view was accepted in Davinder Kaur v. Manpreet Singh Ahluwalia, 2001 SCC OnLine SC 90
In Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220. the 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 again invoked power vested under Article 142 and the wife arrived at the Supreme Court Mediation Centre and granted them divorce by mutual consent and also quashed the FIR lodged by the wife criminal case 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, the parties were referred to the Supreme Court Mediation Centre and marriage was dissolved according to settlement. The Court exercised powers under Article 142.
In Dipankar Debapriya Haldar v. Teesta Dipankar Haldar, 2021 SCC OnLine SC 295, the Court, instead of transferring the matter directly, referred the same to the mediation centre and the parties were able to reach to settlement and the Supreme 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
However, in Sabita Shashank Singh v. Shashank Shekhar Singh (T. P. (C) NO. 908 OF 2019), Hon’ble Supreme Court recently held that a single Bench hearing a transfer petition cannot invoke Article 142 to pass a decree dissolving a marriage by mutual consent. Parties filed for a joint application for divorce by their mutual consent and requested the Court to invoke jurisdiction under Article 142.
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 a Five Judges Constitution Bench and case is currently pending, which will decide various aspects including:
- 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?
- 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?
In fact, the emergence of the above situation occurred due to the reason that an amendment was brought in September 2019 amending the Order IV Rule 1 of the Supreme Court Rules, 2013, whereby the Judge sitting singly was further empowered to hear bail matters and the transfer petitions.
Some Other Relevant Cases
- In Seema v. Rakesh Kumar (2000) 9 SCC 271, the 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.
- In Usha v. Palisetty (2002) 10 SCC 544, it was held that ex-parte decree may be set aside if passed during the pendency of transfer petition.
- In Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1989) SCJ 18, no case can be transferred to another court unless first Court is biased or some reasonable grounds exist.
- In Subramaniam Swamy v. Ramakrishna Hegde, (1990) 1 SCC 4, dealing with the power of the Supreme Court to transfer a case under Section 25 of the Code of Civil Procedure, the Supreme Court observed that this section confers wide amplitude power of transfer. The court at any stage does transfer any suit, appeal or other proceedings from a High Court or other Civil Court in one State to a High Court or other Civil Court of another State if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one court has jurisdiction under the Code to try the suit, the plaintiff as dominuslitis (the person whom a suit belongs, master of a suit) has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has, therefore, invested the Hon’ble Supreme Court with the discretion to transfer the case from one Court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude-for the ends of justice-have been advisedly used to leave the matter to the discretion of the Supreme Court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner’s plea for the transfer of the case must be tested on this touchstone.
- In KulwinderKaur v/s Kandi Friends Education Trust [(2008) 3 SCC 659], the Supreme Court held that reading Sections 24 and 25 of the Code of Civil Procedure together says about balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a fair trial in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order.
- Harita Sunil Parab v. State of NCT of Delhi & Ors. [T. P. (Civil) No. 254-255 of 2017] stated ‘convenience of the parties’ does not mean the convenience of the petitioner alone who approaches the court seeking transfer, but also the convenience of the prosecution, other accused, the witnesses and the larger interest of the society. The convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place, making it virtually impossible to continue with the trial at the place of transfer, and progress of which would naturally be impeded for that reason at the transferred place of trial and dismissed the petition.