Transfer Petitions Filed Before The Hon’ble Supreme Courts And High Courts By A Spouse
- Once matrimonial proceedings i.e.
- Petition for Divorce,
- Petition for judicial separation,
- Petition for annulment of marriage
- Petition for maintenance,
- Petition for child custody,
- Petition for recovery of stridhan,
- Petition under domestic violence act etc are filed by one spouse. The respondent/defendant spouse may move an application before the respective Hon’ble High Court for transfer of petition to the place of their convenience, if the case has to be transferred from one district to another district in the same state and before the Hon’ble Supreme Court of India if the case has to be transferred from one state to another state.
- The Hon’ble court considers balance of convenience to the husband, wife and the witnesses in relation to the place of trial. The court considers if there is bonafide fear in the mind of litigant that he/she may not get justice in the court in which case is pending. While passing order for transfer of a petition the court does not look into the merit of the case as its observations may affect final outcome of litigation or cause prejudice to the litigants. The court considers circumstances under which transfer is prayed and order is passed only after application of judicial mind.
- Under the Hindu Marriage Act, 1955, if the wife files a petition after her husband has already filed a divorce petition, then the wife’s petition will be transferred to the court where husbands petition is already pending i.e. Later petition is transferred to the court in which earlier petition was filed.
- Usually wife files transfer petition on below mentioned grounds and the logical stand taken by the husband are as follows:-
- I have a small child.
- Reply: The wife can leave one of her parents to look after the child and travel with another parent to attend court dates.
- Being a woman, travel is unsafe for her.
- Reply: Merely because the Petitioner is a lady does not mean she cannot travel to the court situated at a distance. At the highest she can be paid expenses for travel and stay. The husband must volunteer to pay the wife and her companion travel and stay expenses on every occasion that the wife is required to go to court. Just because the Petitioner is a lady doesn’t mean that she can not travel for long distance. In general ladies are misusing the leniency shown by the courts in deciding transfer petitions. The courts therefore consider each petition on its merit.
- Expenses required for travel
- Reply: The husband must show willingness to pay travel expenses on actual for the wife and her companion whenever she travels to attend court date.
- Threat to life at Husband’s place
- Reply: The husband has to mention to the court that his life is also under threat at the place where wife wants to get the case transferred. The husband may request the Hon’ble court to transfer the case to a neutral place where both husband and wife can fight the legal battle peacefully. This formula must be applied only as a last resort, only if the judge is inclined to transfer the case to a neutral venue, however no mention of neutral venue should be made in the reply. The husband must volunteer to pay travel expenses.
- Husband is very influential in his place
- Reply: The husband must inform the court that the wife’s family is notoriously influential in their place. The husband must argue that if case is transferred to a neutral place, then both the parties can fight the legal battle peacefully. The husband must volunteer to pay travel expenses.
- Inconvenience to travel long distance
- Reply: The distance between the wife’s residence and the court where case is pending is not far and she can travel conveniently. The husband must volunteer to pay travel expenses.
- I have a small child.
- The Hon’ble court cannot ignore the difficulties faced by the husband if his petition is transferred taking into consideration the genuine difficulties faced by the wife. The husband may face several issues to contest cases at a place convenient to the wife. Therefore, transfer is not always an acceptable option for both the parties. If both the parties face similar degree of difficulty and no common place is convenient to both of them, then aid of video conference may be taken.
