How To Contest A Transfer Petition In The Supreme Court

HOW TO CONTEST/ DEFEND TRANSFER PETITION FILED IN THE SUPREME COURT OF INDIA?

To contest the Transfer Petition in the Supreme Court, the respondent must go through the grounds of the transfer petition filed by the petitioner very carefully and find out whether the grounds taken by the petitioner are correct or not. If there are certain facts or grounds which have been concealed or wrongly placed or mentioned by twisting the actual facts, the same should be highlighted in the counter affidavit and also needs to be attached the relevant documents with the counter affidavit which show that the grounds taken by the petitioner is actually incorrect. It is specifically clarified here that grounds to defend the transfer petition varied in every transfer petition and the same depends on case to case. So there is no straight jacket formula that will apply in every case.

HOW TO FILE TRANSFER PETITION IN THE SUPREME COURT?

The procedure of filing a transfer petition in the Supreme Court is governed by the Supreme Court Rules 2013. There are two types of Transfer petitions i.e. Transfer Petition (Civil) and Transfer Petition (Criminal).In the Supreme Court Transfer Petition (Civil) is being filed Under Section 25 of the Code of Civil Procedure read with Order XLI of the Supreme Court Rules 2013 and a Transfer Petition (Crl) is being filed under Section 406 of the Code of Criminal procedure read with Order XXXIX of the Supreme court rules 2013. Transfer petitions arising out of the matrimonial disputes are mainly to transfer the cases such as Divorce cases, Restitution Petition (RCR), 498A Cases, Domestic Violence (D.V), Maintenance cases, Child custody cases, etc. It arises when a spouse (Husband or Wife) filed a matrimonial case against the other spouse at the place where she/he presently resides and the opposite party (Husband or Wife as the case may be) feeling difficult to contest the said matrimonial case at the place where it has been originally filed so in such a situation the aggrieved party approaches the Supreme Court for transfer the case in question by filing a transfer petition, seeking Transfer of the case from its original place to the place where She/he feels convenient to contest the case. Maximum transfer petitions which are filed in the Supreme Court are related to the transfer of the Divorce Case and Restitution Case (RCR) and it has been earlier seen that the result of the Transfer Petition generally goes in favour of the wife. But after the case of “Krishna Veni Nagam Vs. Harish Nigam T.P (Civil) No.1912 of 2014 decided on 09.03.2017, the Supreme Court had an occasion to consider the case on its merit and passed certain directions with regard to disposal of the matrimonial cases without its transfer from its original jurisdiction.

After some time a three-judge bench in the case of

“Santhini Vs, Vijaya Venketesh Transfer Petition (Civil) No.1278/2016 with Transfer Petition (Civil) no.422/2017 dated 09.10.2017” by a majority of two-Judge Dipak Mishra CJI and Justice Khanwilkar, (Justice D.Y.Chandrachhud has given dissent opinion) has overruled the earlier judgment of Krishna Veni Nagam Vs. Harish Nagam (supra) which had led the practice of the Supreme Court referring the parties to participate in the matrimonial disputes cases through video conferencing, when the parties approached the court for transfer of the matter.

Now the position is the same as was prior to the case of Krishna Veni Nagam Vs. Harish Nagam (Supra). 

WHAT IS THE APPROPRIATE STAGE TO FILE A TRANSFER PETITION IN THE SUPREME COURT?

When a summon or notice is received which has been issued by the Court concerned where originally the case in question is filed and the respondent/Defendant feels inconvenience to contest the case at its original place where it has been registered, the aggrieved person may approach the court for transfer of the case in question by filing an appropriate Transfer petition in the Supreme Court subject to the condition that the original case is pending/ instituted in a different State from the place where the aggrieved person is presently residing. So, it is an appropriate stage to file a transfer petition and the same could not be questioned on the ground of its stage and the respondent cannot take the plea that the transfer petition has been filed at its belated stage. But on the other hand, if the aggrieved person approaches the Supreme Court at a belated stage i.e after her/his appearance in the original case and appointing the counsel to conduct the case in question and some proceeding of the case has also taken place, then in the Supreme Court, a question may arise in favour of the respondent that there is no inconvenience to the petitioner in conducting the case at its original place because the petitioner has already engaged a Lawyer who conducting the case conveniently.

GROUNDS OF THE TRANSFER PETITION RELATED TO THE MATRIMONIAL CASES:-

The grounds that the petitioners generally take in the Transfer Petition before the Supreme Court are:-

1.   Financial crunch to the petitioner

2.   Life threats to the petitioner

3.   No one is in the family to accompany the petitioner 

4.   Long journey

5.   Minor child

6.   Leave is not granted by the employer ( in case the Petitioner is employed) etc.

TRANSFER PETITION (CRIMINAL) RELATED TO MATRIMONIAL DISPUTES?

Transfer Petition (Crl.) in matrimonial disputes generally arise from the proceedings of Criminal cases such as 498A/ 406/34 IPC and Domestic Violence Cases. The procedure and grounds of the transfer petition are almost similar to those of the Transfer Petition (civil) but there are certain additional grounds available to the respondents to contest/ defend the transfer petition (Crl.) which are not available so far as the transfer petition (Civil) is concerned. That is why it is very difficult to get a transfer of criminal proceedings from its original jurisdiction.