Transfer Petition - Transfer of Matrimonial Cases

Most men who file matrimonial cases in the correct jurisdiction also suffer when the wife approaches the High Court or Supreme Court to transfer the case to the court in which the wife resides. The same is done u/s 24 of the Civil Procedure Code in High Courts and u/s 25 of the Civil Procedure Code in Supreme Court.

Courts have taken the wife’s convenience as an essential consideration while ordering the transfer of proceedings, especially when the wife has custody and care of the minor child. This said, each case should be decided on its own merits, and in many cases, the transfer applications filed by wives have been dismissed, too.

Though the transfer of cases is done mechanically in favour of the wife, it is not always so. In some significant decisions, various High Courts and Supreme Courts have decried the practice of automatic transfer and have held that “The ground that being the lady it is not safe for her to travel in itself is no ground for transfer.” There have to be some substantial other grounds for the transfer of cases.

After going through many judgments, I have synthesized the following grounds, which the courts see while deciding transfer applications.

1. When the wife has custody of child/ren, who is/ are, below a certain age.
2. When the wife has shown genuine difficulty in travel owing to illness/ work etc.
3. When the husband also resides in a place other than where matrimonial case is filed. It is not necessary that he should also reside in the same city as wife.
4. When wife has/ had also filed cases in city where she is seeking transfer and either joint trial or in the same court.
5. When wife/ husband has shown with cogent evidence that there is a genuine threat at the place where trial is running.
6. When the husband has himself given no objection to transfer.

Besides this, it is also seen that whenever courts reject the transfer of a case, the Supreme Court and most High Courts ask the husband to bear the expense of travel, lodging, and other incidental costs. So, a person trying to fight the transfer petition shall, beyond other points, be ready to pay incidental expenses to the wife.

Men may use the following grounds to have the transfer petition decided in their favour:

1. When the place where the wife has sought custody is not her permanent residence
2. When wife is living outside India
3. Where the husband has the custody of kids
4. When the condition of the husband due so an illness is such that travelling will cause irreparable harm
5. When the job responsibilities of husband don’t allow him to travel from the workplace

A few Judgments where the transfer petition by the wife was rejected may be utilised.

1. Himani Virendra Bajaj vs Virendra Bajaj on 6 October 2017
2. Anandita Das v. Sirjit Dey
3. Jaishree Banarjee Vs. Abhirup Banerjee
4. Preeti Sharma Vs. Manjit Sharma

In a significant decision recently, the Supreme Court in Krishna Veni Nagam vs Harsh Nigam [2017 SCC 236] Supreme Court realising the inconvenience and expenses involved in long-distance travel and delay in judicial proceedings because of it, held that technological solutions should be used and directed all high courts to pass administrative directions to all district and family courts to open their video conferencing facilities.

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