: October 04, 2017 |
: Civil Laws
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Transfer Petition in Supreme Court of India-All about
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.
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 Format
1. A short synopsis
A short and simple synopsis outlining the grounds you wish seek before the Hon’ble supreme court is a must, your synopsis must be crisp and to the point and relates to only facts which forms the ground for seeking the transfer.
2. Details of the case
Specify the complete details of the case you wish to get it transfer from one court to another also specify the court in which you wish to seek the transfer of the case.
Specify the grounds on which you may be seeking the transfer of case the grounds are mentioned below.
a) prejudice in that jurisdiction
that husband family is very influential and will hamper fair proceedings.
b) Threat to life
Again being influential is a good ground for having a threat to life.
c) being a single women without any support.
if there is no support from father side then that is also a good ground for seeking transfer.
d) medical history
medical proof should be attached in case of medical ailment.
e) old and ailing parents.
f) No source of income
if wife is not working its a good ground.
g) Simultaneous jurisdiction.
4. Interim Relief
You must also pray for interim relief of stay of proceedings of the case you wish to seek transfer.
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.
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
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.
However this Judgement is referred to higher bench still there is hope for wife. However
There can be other grounds as well like-:
a. Manipulation of court records.
b. Attack on wife.
c. Petition filed to harass wife
d. Petition filed without jurisdiction by reading petition only.
By Adv. Nitish Banka
Advocate Supreme court