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Published : December 24, 2016 | Author : nitish788
Category : Miscellaneous | Total Views : 2154 | Rating :

  
nitish788
Advocate Nitish Banka nitish@lexspeak.in
 

Transfer Petition in Supreme Court-How to defend?

When wife files the transfer petition in Supreme Court usually husband is defenseless, although husband receives the summons from the Supreme Court if the transfer is from one state to another, here are some of the judgments which can help

In Gayatri Mohapatra v. Ashit Kumar Panda : (2003)11SCC731 , the Supreme Court having found that the wife being a Director in a Company run by her mother traveled 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 caseIn Teena Chhabra v. Manish Chhabra (2004) 13 SCC 411, the Supreme Court accepted the husband’s offer to bear the expenses for the travel, boarding and lodging of the wife and dismissed her transfer petition on the ground that she had no source of income to travel.

In M. Sivagami v. R. Raja (2005) 12 SCC 301, the Supreme Court disallowed the wife’s transfer application based on monetary grounds directing the husband to pay her litigation costs and also to cover her costs and expenses and those of her witnesses.

In Kanagalakshmi v. A. Venkatesan (2004) 13 SCC 405, the Supreme Court again accepted the plea of the husband that he would bear the expenses not only for the wife but also her companion for their travel and stay at the place where the case was pending and accordingly dismissed her transfer petition.

The same principle was reiterated in Priyanka Batra v. Manish Batra (2005) 12 SCC 236; Kakali Pal v. Balai Chandra Pal (2005) 12 SCC 216; Anuradha Dutta v. Subash Chandra Dutta (2004) 13 SCC 694; Sarita Singh Alias Babli Baghel v. A.P. Baghel (2005) 12 SCC 376; Kamudi Aurora v. Surinder Pal Singh Aurora (2004) 13 SCC 634 and Gargi Konar v. Jagjeet Singh (2005) 11 SCC 446. In Preeti Sharma v. Manjit Sharma (2005) 11 SCC 535, the Supreme Court observed that merely because the petitioner was a lady it did not mean that she could not travel to another place and that, at the highest, she could be paid expenses for her travel and stay.

In Premlata Singh and Ors. v. Rita Singh (2005) 12 SCC 277, the Supreme Court directed the transfer of the case taking into account the fact that the wife was undergoing treatment for kidney failure.

In Usha George v. Koshy George : (2000)10SCC95 , the Supreme Court having found that a number of hearings had already taken place held that it was not proper to transfer the proceedings to any other Court.

In Anindita Das v. Srijit Das (2006) 9 SCC 197, the Supreme Court found that leniency to ladies shown by the Court in transfer matters was being often misused and taken advantage of by women. Stating so, the Court observed that it was required to consider each petition on its merit. On the facts of that case, the Court found that the grandparents were available to look after the six year old child and taking note of the husband’s offer to bear the expenses for the wife’s travel and stay along with her companion, rejected her transfer application based on those grounds.

In Eluri Raji Reddy and Ors. v. State of Delhi and Anr. : 2004CriLJ2555 , the Supreme Court found that as the wife had a house in Andhra Pradesh and her parents were living there it would be proper to transfer the cases filed by her at Delhi to a Court in Andhra Pradesh as sought by her husband.

In Neelam Bhatia v. Satbir Singh Bhatia (2004) 13 SCC 436 the Supreme Court taking note of the fact that the case had progressed to the stage of trial disallowed the wife’s transfer application, directing the husband to bear the travel and incidental expenses of the wife and her companion.

In Meenakshi v. Mukesh Kumar (2004) 13 SCC 497, the Supreme Court accepted the statement made by the husband with regard to the safety and security of the wife and that he would bear her conveyance charges and disallowed the wife’s transfer application. From an overview of the aforestated Judgments, it is clear that there is no hard and fast rule that can be applied in cases of this nature. Each case would ultimately turn on its own special facts and circumstances and must be dealt with accordingly.

In this regard, reference may be made to the Judgment of the Supreme Court in Kulwinder Kaur v. Kandi Friends Education Trust AIR2008SC1333 . The Supreme Court, while dealing with the power of the Court to transfer suits, appeals or other proceedings under Sections 24 and 25 of the Code, observed that the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations and that it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. The Court indicated certain broad propositions as to what may constitute a ground for transfer.

These are balance of convenience or inconvenience to the plaintiff or the 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. The Court stated that the above were only illustrative and were not to be treated as exhaustive. The Supreme Court also observed that normally while making an order of transfer, the Court may not enter into the merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side but at the same time an order of transfer must reflect application of mind by the court and the circumstances which weighed with it in taking the action.

Typical grounds taken by wife in the transfer petitions are below.
# Having a child
# Travel is unsafe being a lady
# Expenses required for travel
# Threat to life at Husband’s place
# Husband is very influential in his place
# Inconvenience to travel long distance

Counters for the above grounds
# Counter of Point 1: One of the parents of the wife can look after the child and another can accompany her. Some of the precedence where this court has taken a similar stand is listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 27 OF 2005)

# Counter of Point 2:
Just because she is a lady does not mean that she cannot travel a distance of just 8 hours. Supreme court also accepted this fact recently while disposing the “TP (CIVIL) NOS.117-118 OF 2004” while passing the following order.

“The grounds made out are that the Petitioner is an unemployed lady and totally dependent on her uncle and that she will be hard pressed to defend the Suit at Muzaffar Nagar. It is also claimed that there is a Petition for restitution of conjugal rights and certain other proceedings pending in Delhi. In our view, no substantial ground for transfer has been made out. If the Petitioner wishes that all cases be tried at one place, she may apply for the same and we will transfer the cases pending in Delhi to Muzaffar Nagar. Merely because the Petitioner is a lady does not mean she cannot travel to Muzaffar Nagar. At the highest she can be paid expenses for travel and stay. We, therefore, direct that the Respondent shall pay to the Respondent and a companion travel and stay expenses on every occasion that the Petitioner is required to go to Muzaffar Nagar. The Court at Muzaffar Nagar shall ensure that such payment is made to the Petitioner on every occasion. With these directions, the Transfer Petitions are dismissed.”

Just because she is a lady does not mean that she cannot travel a distance of just 8 hours. The respondent wants to bring to the kind attention of the honorable court that in general ladies are misusing the leniency shown by this honorable court in regard to the transfer petition. Supreme court also accepted this fact recently while disposing the “TP (CIVIL) NO.191 OF 2005” while passing the following order.

“Even otherwise, it must be seen that at one stage this Court 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 taken by this Court. On an average at least 10 to 15 transfer petitions are on Board of each Court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women. This Court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grand parents available to look after the child. The Respondent is willing to pay all expenses for travel and stay for the Petitioner and her companion for every visit when the Petitioner is required to attend the Court at Delhi. Thus, the ground that the Petitioner has no source of income is adequately met. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the Court on a particular date, she can always apply for exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out. Accordingly, we dismiss the Transfer Petition. We, however, direct that the Respondent shall pay all travel and stay expenses of the Petitioner and her companion for each and every occasion when she is required to attend the Court at Delhi”.

# Counter of Point 3: Ready to pay all expenses but mention that this will be paid on actual. Husband is willing to pay reasonable expenses to wife whenever she is required to travel for these cases. Some of the precedence where Supreme Court has taken a similar stand is listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 23 OF 2005, TP(C) No. 24/2005, TP (CIVIL) NO. 27 OF 2005, TP(C) No. 61/2005, TP (Civil) No.66 of 2003, TP (Civil) No.136 of 2003, TP (CIVIL.) NO(s). 212 OF 2006, TP (CIVIL.) NO(s). 142 OF 2005, TP (CIVIL) NOS.117-118 OF 2004, TP NO..416 OF 2004, T.P.(C) No. 489 OF 2004, TP (CIVIL.) NO(s). 561 OF 2004, TP (CIVIL.) NO(s). 191 OF 2005, TP(C) NO.195 OF 2005, TP (CIVIL) NO.243 OF 2005, TP (CIVIL.) NO(s). 245 OF 2005, TP(C) NO.246 OF 2005, TP (CIVIL.) NO(s). 302 OF 2005, TP NO.393 OF 2005, TP (C) NO. 414/2005, TP (CIVIL) NO.459 OF 2005, TP (C) NO. 564 OF 2005, TP (C) NO. 686 OF 2005, TP (CIVIL.) NO(s). 698 OF 2005, TP (CIVIL.) NO(s). 722 OF 2005, TP (CIVIL) NO.725 OF 2005, TP (CIVIL.) NO(s). 741 OF 2005, TP (CIVIL.) NO(s). 743 OF 2005, TP (CIVIL.) NO(s). 746 OF 2005, TP (CIVIL.) NO(s). 759 OF 2005, TP (CIVIL.) NO(s). 769 OF 2005, TP (C) NO. 798 OF 2005),.

# Counter of Point 4:
You have to mention that you too face a threat at her place. You need to argue that in that case itshould be transferred to a neutral place where both husband and wife can fight the legal battle peacefully. There is a judgment on this. Will be provided on request. Please note that in this case you have to give her travel and staying expenses. But this should be a last ditch effort. You should not mention this point of neutral place in the petition. In case your lawyer feel that judge may transfer the petition then only this method should be used.

# Counter of Point 5: You have to mention that wife’s family is also influential in their place. You need to argue that in that case it should be transferred to a neutral place where both husband and wife can fight the legal battle peacefully. There is a judgment on this. Will be provided on request. Please note that in this case you have to give her travel and staying expenses. But this should be a last ditch effort. You should not mention this point of neutral place in the petition. In case your lawyer feel that judge may transfer the petition then only this method should be used.

# Counter of Point 6: The distance between place A and B is not so far that it will cause inconvenience to wife. Some of the precedence where this court has taken a similar stand is listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 23 OF 2005, TP (C) No. 61/2005, TP (Civil) No.66 of 2003, TP (CIVIL.) NO(s). 142 OF 2005, TP (CIVIL) NOS.117-118 of 2004).




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Article Comments

Posted by harshvardhan pandey on March 22, 2017
excellent research in relatively unexplored area. must have been painstaking. thanks a ton. you made my work easy.


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