NAME :- Ratnesh kumar

UNIVERSITY:- The ICFAI University , Dehradun

EMAIL:- ratnesh8678@gmail.com

RESEARCH WORK

 Meaning of transfer petition

Transfer Petition is a petition filed before the court for the purpose of transferring their case from
one court to another court. The party who intends to get his/her case transferred must file a
transfer petition to the court and the court decides whether or not the case is transferable based
on relevant grounds.
 When is transfer petition filed
The first and foremost object of every procedural law is to provide justice that is fair and
unbiased. In India, both the Code of Civil Procedure, 1908 and the Code of Criminal Procedure,
1973 contains the provisions of transfer of cases. Sections 22 to 25 of the Code of Civil
Procedure, contains the law regarding the transfer and withdrawal of suits, appeals and other
proceedings from one court to another. Sections 406 to 408 of the Code of Criminal Procedure,
contains the law regarding the transfer of cases and appeals.

 Transfer petition when filed under the Code of Civil Procedure

Under Section 25 of the Code of Civil Procedure the Hon'ble Supreme Court has the power to
transfer any Case, appeal or other proceedings from High Court or other civil court in one State
to a High Court or other civil court in any other State.
This power may be exercised by the Supreme Court if it is satisfied that an order under this
Section is expedient for the ends of justice. Hence wide powers are given to the Supreme Court
to order a transfer if it feels that the ends of justice so require.

 When there is an inconvenience on the part of the plaintiff

Generally, the plaintiff has the right to choose his/her own forum where a suit can be filed in
more than one court. This right of the plaintiff cannot be curtailed or interfered but this right can
be controlled by the superior courts.
In the case of Jagatguru Shri Shankaracharya v. Ramji Tripathi, AIR 1979 MP 50, it was
observed by the Madhya Pradesh High Court:
“The plaintiff, as arbiter litis, has a right to choose his own forum and that right should not be
interfered with except on very strong grounds.”
Therefore, it is of utmost importance that the plaintiff chooses his own forum according to his
convenience. A court may transfer any suit keeping in view relevant considerations after the
transfer petition is presented before the court by the plaintiff. The court will allow the transfer as
per the convenience of the plaintiff if the grounds specified by the plaintiff for such transfer
appears to the court to be of extreme importance for the fair and impartial trial.
 When there is an inconvenience on the part of the defendant
According to section 22 of the Code of Civil Procedure, 1908, the defendant can also make an
application for the transfer of the suit where a suit may be instituted in more than one court. The
defendant may after giving notice to the other party/parties at the earliest opportunity possible
apply, in all cases where issues are settled, at or before the settlement of issues for the suit to be
transferred to another court. The court where such application is made by the defendant shall,
after considering the objections if made by the other party/parties determine in which court the
suit shall proceed.
 When there is a reasonable apprehension in the mind of the litigant that he/she might not
get justice in that particular court where the suit is pending
It is of paramount importance that the party before the court seeking justice must get satisfactory
judgment and also it is important for the litigant to show appropriate grounds which would form
a strong base for the transfer of a case. If and only if the grounds specified by the litigant as to
why there is an apprehension in his/her mind is reasonable and sound then only the court shall
approve the transfer petition so filed.
 Where transfer would avoid unnecessary expenses and delay
The transfer petition filed by the party can also specify the grounds that such a transfer would
lead to avoidance of unnecessary expenses and delay to the parties involved. This generally
happens in the case where matrimonial matters are involved. In divorce cases where the wife
leaves her husband’s house and starts residing in her parental house in a different place or city or
state and the wife is unable to travel all alone or she can’t leave her child alone or where she
lacks money for the suit can apply for transfer petition on such ground for the speedy trial in less
expense.
 When important questions of law are involved or a considerable section of the public is
interested in the litigation
There are several cases where some important questions of law are involved and in such cases
the litigant can file a transfer petition specifying such questions highlighting their importance as
a ground for transfer to the other court. Also, there are certain cases where not only two or three
parties are involved but a considerable section of the public is interested in the litigation, in such
cases the court can take into account the necessity of the case to be transferred to another court.

 Divorce Transfer Petition in Supreme Court

Generally in supreme court divorce transfer petition are filed. Is filed by wife when husband files
the petition in matrimonial home and wife is residing at parental home at some other state
Rather as a matter of fact the Husband cannot be always made to suffer and there are judgments
passed by the SC wherein he can counter the allegations made by the wife and protect himself
from being further harassed. Defense of these could be described as follows:
If the wife claims to have a minor child then grandparents can be asked to look after the child
and merely on this ground the petition should not be transferred (Anandita Das v. Sirjit Dey
(2006))
If the wife claims a far distance then effort to prevent a transfer the husband can make an offer to
bear IInd class AC tickets for the woman to travel and her stay expenses. This is normally
considered by the court.
If the wife claims a threat to her life and she cannot commute strong proof is required to be
shown and merely by stating fear to her life the court will not be inclined to transfer the same as
held by Hon’ble Supreme Court in Priti Sharma v. Manjeet Sharma – (2005)– the court, in the
case of a wife seeking transfer on the grounds of being unemployed and unable commute,
categorically held “merely because petitioner is a lady does not mean she cannot travel” and the
transfer petition was dismissed.
Men who have kids custody with them can rely on Jaishree Banarjee v. Abhirup Banarjee
(1997) 11 SCC 107 to get proceedings transferred in their favour.

 Transfer petition when filed under the Code of Criminal Procedure

Criminal Transfer Petition
Section 406 of the Code of Criminal Procedure gives power to the Supreme Court to transfer
criminal cases and appeals pending in one High Court to another High Court or from a criminal
court subordinate to one High Court to another criminal Court of equal or superior jurisdiction
subordinate to another High Court. The Supreme Court can act under the section only on the
application of the Attorney General or of a party interested. Where an application under Section
406 Of The Code of Criminal Procedure is dismissed, the Supreme Court may, if it is of opinion
that the application was frivolous or vexatious order the applicant to pay by way of
compensation to the respondent such sum not exceeding Rs 1000.
 When transfer becomes necessary to ensure fair and impartial trial
The accused person has reasonable grounds to believe that he/she may not get a fair trial at the
hands of a particular judge, then the accused shall have the right to get his/her case transferred in
another court. This principle is widely recognized and is considered as unobjectionable. The
petitioner is required to show circumstances that give rise to the apprehension in his/her mind
regarding the unfair trial.
 When transfer causes general convenience to the parties and the witnesses
To ensure fair trial each and every step is important and therefore it is necessary that the
witnesses and the parties are present during the trial. If a transfer petition filed before the court is
for the benefit and convenience of the parties and the witnesses then the petition can be looked
upon by the court.
 When it is expedient for the ends of justice
It is of utmost importance for the courts to facilitate justice to the person before it seeking justice.
So, whenever it appears to the court that it is expedient for the ends of justice to transfer the case
from one court to another, the court approves the transfer petition filed by the party.

 Article 139A: Transfer of certain cases

(1) Where cases involving the same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two or more High Courts and
the Supreme Court is satisfied on its own motion or an application made by the Attorney-General
for India or by a party to any such case that such questions are substantial questions of general
importance, the Supreme Court may withdraw the case or cases pending before the High Court
or the High Courts and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said questions of law return any case
so withdrawn together with a copy of its judgment on such questions to the High Court from
which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to
dispose of the case in conformity with such judgment.
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any
case, appeal or other proceedings pending before any High Court to any other High Court.
The purpose of this provision is that no one must suffer injustice due to lacunae in the
machinery. Everyone has the right to justice and it is the duty of state and the judiciary to ensure
it to all. This is what has been stated in the preamble as well, preamble which is the soul of our
constitution.

It is to be noted that where the High Court has the power to dispose the cases then application for
transfer of cases to the Supreme Court cannot be entertained.
 Section 21A in The Hindu Marriage Act, 1955

21A Power to transfer petitions in certain cases.

(1) Where

(a) a petition under this Act has been presented to a district court having jurisdiction by a
party to a marriage praying for a decree for judicial separation under section 10 or for a
decree of divorce under section 13; and

(b) another petition under this Act has been presented thereafter by the other party to the
marriage praying for a decree for judicial separation under section 10 or for a decree of
divorce under section 13 on any ground, whether in the same district court or in a
different district court, in the same State or in a different State,
the petitions shall be dealt with as specified in sub-section (2).

(2) In a case where sub-section (1) applies,

(a) if the petitions are presented to the same district court, both the petitions shall be tried
and heard together by that district court;

(b) if the petitions are presented to different district courts, the petition presented later
shall be transferred to the district court in which the earlier petition was presented and
both the petitions shall be heard and disposed of together by the district court in which
the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as
the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to
transfer any suit or proceeding from the district court in which the later petition has been
presented to the district court in which the earlier petition is pending, shall exercise its
powers to transfer such later petition as if it had been empowered so to do under the said
Code.

 Section 19 in The Hindu Marriage Act, 1955

19 - Court to which petition shall be presented. Every petition under this Act shall be
presented to the district court within the local limits of whose ordinary original civil
jurisdiction
(i) the marriage was solemnised, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
 (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of
the petition, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case
where the respondent is, at that time, residing outside the territories to which this Act
extends, or has not been heard of as being alive for a period of seven years or more by
those persons who would naturally have heard of him if he were alive.

 What is the procedure to file a transfer petition

 Procedure as per the Code of Civil Procedure, 1908

A petition can be filed by a person seeking transfer of a case from one court to another by giving
an application supported by an affidavit stating the grounds of transfer. According to section 22
of the Code, when an application of transfer is made by the defendant, then the defendant must
give notice of such application to the other side. As per section 24, when an application of
transfer is made by any party, a notice must be given by the court to the opposite party before
making an order of transfer. Therefore, notice plays an important role and it has been held to be
mandatory to give notice to the other side regarding the transfer.
 Procedure as per the Code of Criminal Procedure, 1973

 An affidavit in support of an application stating the grounds of transfer must be given to

the court by the party seeking transfer and that affidavit should be in accordance with the
provisions of section 297 of the Code.

 According to section 407(4), when an application of transfer is made by the accused

person, the High Court may direct him to execute a bond, with or without sureties, for the
payment of any compensation which the High Court may award as per sub-section(7) of
section 407. As per sub-section (5) of section 407, every accused person who is making
an application of transfer shall give notice to the Public Prosecutor in writing of the
application together with a copy of the grounds on which it is made. Unless at least 24
hours have elapsed, between the giving of such notice and the hearing of the application,
no order shall be made on the merits of the application.
  Essential pointers to be included in the petition

 Grounds of transfer
In a transfer petition where the party is willing to transfer his case from one court to another
court must state the grounds of transfer in the petition. Grounds of transfer is essential in the
petition because there must be a valid reason for which the party is asking for the transfer and the
court must be satisfied by the reason stated in the petition. The party filing a petition must give a
reason that shows that there is a need for transfer. The grounds as stated in the petition must
appear to the court to be reasonable and of such a nature that if the petition does not get approved
would cause a failure of justice. Therefore, in order to get the case transferred, the party filing the
petition must be aware that the grounds on which they are asking to transfer is strong enough for
the court to approve it.
 Notice
Notice plays a very important role while filing a transfer petition. The party filing a transfer
petition must give notice to the other party or to the Public Prosecutor as the case may be, about
the same. In both the Codes it is important to give notice to the other party.

 Affidivit
An affidavit must be attached with the application of transfer stating the grounds on which the
party is seeking the transfer. Under the Code of Criminal Procedure, 1973, every application for
an order under sub-section (1) of section 407 shall be made in motion, except when the applicant
is the Advocate-General of the State, be supported by affidavit or affirmation.

 Illustrative cases where transfer was allowed by the courts:-

The following cases have been held by the courts to be sufficient grounds for transfer of cases-

1. To avoid multiplicity of proceedings or conflicting decisions (Case-Indian Overseas Bank

v. Chemical Construction Co. AIR 1979 SC 1514)
2. There was reasonable apprehension in the mind of the litigant that he/she might not get
justice in the court where his/her suit was pending [Case- Kiran Ramanlal v. Gulam
Kader, (1995)]
3. Where the balance of convenience requires(balance of convenience is a legal expression
which includes not only the convenience of plaintiff or defendant alone but of both the
parties)[Case- Jagatguru Shri Shankaracharya v. Ramji Tripathi AIR 1979 MP]
4. Where the common questions of law and fact arise between the parties in two suits (Bihar
State Food & Supplies Corpn. Ltd. v. Godrej Soap Ltd.(1997)]
5. Where transfer avoids delay and unnecessary expenses (Shiv Kumari v. Ramajor Shitla
Prasad AIR 1997 SC 1036)
6. Where important questions of law are involved or where considerable section of public is
interested in the litigation (Arvee Industries v. Ratan Lal AIR1977 SC 2429).

 Recent related Judgments

 Smt. Kalpana Deviprakash Thakar vs Dr. Deviprakash Thakar on 4 November,

1996
The petitioner has prayed for transfer of divorce proceedings pending before the Family
Court, Bombay to Palanpur in the State of Gujarat.

2. Being seized with a matrimonial matter, we thought that we should make efforts to see
if the parties can reconcile. For this purpose we desired appearance of both the parties-
in-person. Both of them came of 29th October and we heard their views. It appears to us
that reconciliation is not presently possible for one reason or the other.

3. Insofar as the prayer for transfer is concerned, we have not felt inclined to grant the
same for the following reasons:-

(a) The husband-respondent is a medical practitioner and so his absence from Bombay
would cause difficulty to his patients also.

(b) His old and ailing mother lives with him at Bombay who needs frequent medical
check-up and constant care.

(c) The witnesses in the case are principality from Bombay as would appear from the list
of witnesses which was produced to us for our perusal.

(d) Petitioner-wife, has some near relations in Bombay. The petitioner, when asked about
this fact, did not really deny the same. She, however, stated that they are not very close
relatives and accommodation with them is insufficient. As, while coming for the trial, she
would be required to stay for a day or two only at Bombay, this is not a material
objection.

(e) The husband has undertaken to bear the travelling expenses of the wife as and when
she would travel from Palanpur to Bombay to attend court proceedings. Let him also bear
the expenditure of an escort.
 (f) Palanpur is well connected by train with Bombay, because of which the petitioner
would not have to face much difficulty in undertaking the journey.

4. For the abovesaid reasons, the position is dismissed.

 These days Hon’ble Supreme court is not lenient in allowing transfer petition in favor of
wife and is mostly dismissing these kind of petition and citing Krishna Veni Nagam vs
Harish Nigam(2017) 4 SCC 150

In the aforesaid judgement the supreme court relying on Para-17 and 18 as mentioned below.

17. We are thus of the view that it is necessary to issue certain directions which may provide
alternative to seeking transfer of proceedings on account of inability of a party to contest
proceedings at a place away from their ordinary residence on the ground that if proceedings are
not transferred it will result in denial of justice.

18. We, therefore, direct that in matrimonial or custody matters or in proceedings between
parties to a marriage or arising out of disputes between parties to a marriage, wherever the
defendants/respondents are located outside the jurisdiction of the court, the court where
proceedings are instituted, may examine whether it is in the interest of justice to incorporate any
safeguards for ensuring that summoning of defendant/respondent does not result in denial of
justice. Order incorporating such safeguards may be sent along with the summons. The
safeguards can be:-
i) Availability of video conferencing facility.
ii) Availability of legal aid service.
iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.
iv) E-mail address/phone number, if any, at which litigant from out station may communicate.
Therefore the aforementioned guidelines were issued to all the High courts to make
arrangements for video conferencing instead of transferring the petition, therefore dismissing all
the transfer petition filed in the Hon’ble Supreme Court.
For husband the judgement of Krishna Veni Nagam vs Harish Nigam is a valid defense for
husbands for defending transfer petition supreme court.