SINHA & SINHA LEGALISTS LLP

TRANSFER OF A DIVORCE PETITION FROM A DISTRICT COURT

Sections 22 to 25 of the Civil Procedure Code, 1908, enact law with regards to transfer and withdrawal of suits, appeals and other proceedings from one Court to another Court.

Section 25 of the Code of Civil Procedure enables the Supreme Court 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.

In Dr. Subramaniam Swamy v. Ramakrishna Hegde, the Court held that: The paramount consideration for transfer of a case under Section 25 of Code of Civil Procedure must be the requirement of justice. It was held that the mere convenience of the parties or anyone of them may not be enough for the exercise of power, but it should even be shown that trial within the chosen forum can lead to denial of justice. The Court further held that if the ends of justice so demand and the transfer of the case is imperative, there should be no hesitation to transfer the case. The right of the dominus litis to choose the forum and consideration of plaintiff s convenience etc. cannot eclipse the requirement of justice. Justice must be done at all costs; if necessary by the transfer of the case from" one court to another.

This provision has been most often invoked in matrimonial matters, and usually at the instance of the wife. When the husband and wife are living separately and the husband files -a petition for divorce or institutes other proceedings under the law relating to marriage and divorce at the place where he is residing, which is usually the place where the parties last resided together, the wife, who has often returned to her parental home, moves for transfer either on the ground that she cannot afford to travel or that she cannot leave her child behind or that she faces threats when she goes to defend the proceedings. The Court invariably takes a sympathetic view towards the wife's plea for transfer, but this is not always the case.

Grounds for transfer:

When there involves a substantial question of law.
To prevent abuse of proceeding of court.
To avoid delay and unnecessary expenditure.
Where the judge is biased or interested in one part only.
Where a similar question of fact and law arise in two different cases.
When in a similar cause two people filed a case but in different court.
To avoid multiplicity of proceedings or conflicting decisions.

Who can apply for the transfer?

In Section 22 of CPC, the plaintiff has the right to file a case in any competent court and when the defendant gets to know the purpose of application he may apply for the transfer of the case. The court may also consider the objection if any, made by the plaintiff in relation to such transfer. And further, after the clearance of the objection, the court will transfer the case in a court that is competent to deal with that case.

Section 22 and 23 are related to each other. Section 22 defines the power of the defendant to apply for the transfer of cases and section 23 lays down the conditions where the application of transfer can be made and to what court such application is to be made.

Conditions under which a transfer application can be made:

The suit or other proceeding must have been pending in a court competent to try it.
The transfer court must be subordinate to the court making transfer order.
The transferee court should be competent to try or dispose of the suit, where competency does not only include pecuniary but also territorial competency.

To which court such application lies?

As dealt under Section 23, the following observations have been made,

If the Petitions are presented to the same District Court, both the Petitions shall be tried and heard together by the said District Court;
If the Petitions are presented to different District Courts, in the same State, 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.
An aggrieved party can approach the High Court of that State for the desired relief. If transfer of the divorce petition is from one district to another, the aggrieved party can file a transfer petition in the High Court under Section 24 of the CPC.
In the cases where the Petitions are presented to different States, the Hon’ble Supreme Court of India can transfer the Petitions from one Jurisdiction to another. An aggrieved party can approach the Hon’ble Supreme Court of India for the desired relief.

RELEVANT CASE- LAWS:

Theja V. Nagarjuna vs V. Nagarjuna on 11 February, 2000

Notice was issued to the Respondent and the office report shows that although the respondent has been served but has not put in appearance in this case. It was therefore, decided that the matter is ex-parte.
In the petition, petitioner has stated that she is unable to meet the expenditure of travel to Hyderabad from Bangalore for attending the day-to-day proceeding of the Divorce Petition and moreover she has a minor son and except her aged parents there is none to accompany her to Hyderabad.
The petitioner has already filed a petition for restitution of conjugal rights which is pending before the Family Court, Bangalore.
Under such circumstances, the Divorce Petition was transferred, which was pending before I Civil Judge Ranga Reddi District Court, Saroor Nagar, Hyderabad to Family Court at Bangalore to be heard and decided along with the other petition pending before the Family Court at Bangalore.

Brijesh Kumar Gupta vs Smt. Poonam Gupta on 17 July, 2002

Brijesh Kumar Gupta; applicant before this Court, has filed the present Transfer Application under Sections 23(3) and 24 of the Code of Civil Procedure read with Section 21A(b) of Hindu Marriage Act, praying for transferring Divorce Petition of Smt. Poonam Gupta v. Brijesh Gupta pending in the Court of Principal Judge, Family Court, Meerut to the Court of VIIth Additional District Judge, Gwalior, where Matrimonial Petition (to declare the marriage between the parties as void) is said to be already pending since before the filing of the aforementioned divorce petition by the wife at Meerut.
The present transfer application seeking transfer of the case from Meerut (State of U. P.) to Gwalior (State of M. P.) is not cognizable by the Court and the Transfer application is, accordingly, rejected.

Mona Aresh Goel v Aresh Staya Goel on 21 March, 2000

The respondent husband has been served but does not appear.
The transfer petition is filed by the wife to transfer the divorce proceedings taken by the husband in Bombay to Delhi, where she now stays with her parents. The transfer petition avers that the wife has no independent income and that her parents are not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. She avers that she is twenty-two years old and cannot travel to and stay in Bombay alone for there is no one in Bombay with whom she can stay. We are of the opinion that the transfer petition should, in the circumstances, be allowed.
The transfer petition is made absolute in terms of prayer (a). MJ Petition No. A-636 of 1999 pending before the Family Court at Bandra, Bombay is transferred to the Court of the District Judge, Tis Hazari, Delhi, who shall hear it himself or assign it for hearing to a competent court.
No order as to costs.

Smt. Kalpana Deviprakash Thakar vs Dr. Deviprakash Thakar on 4th November, 1996

The Court disallowed the wife's plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into account the following considerations:
The husband was a medical practitioner and his absence from Mumbai would cause inconvenience to his patients;
His old and ailing mother who lived with him needed regular medical check-ups and constant care;
The witnesses were principally from Mumbai;
The wife had relatives in Mumbai with whom she could stay .whenever she went there-for the case;
The husband was ready to bear the expenses of travel and also the traveling expenses of the escort.
Palanpur was well connected to Mumbai by train.

Lakshmi Nagdev V. Jitendra Kumar Nagdev on 24th September 2004

The petitioner/wife is having a small child. She is residing in Bhilai, District Durg with her parents, who are old and infirm and there is nobody to accompany her at Katni which is more than 465 kms from Durg. The respondent/husband has submitted the travelling expense but the prayer for transfer cannot solely be rejected because of that. There are many other factors that have to be taken into consideration as well on behalf of the wife.
For these reasons, the petition deserved to be allowed and the same is allowed hereby.
The Civil Suit pending in the Court of III Additional Judge, Katni is transferred to the Court of District Judge, Durg, Chattisgarh, who shall proceed with the suit in accordance with the law.

Circumstances where the transfer is allowed:

Transfer of cases from one court to another is allowed when:-

Reasonable threat in mind of party that he/she will not get justice where the case is pending in court.
Balance of convenience.
When two people filed a suit against each other in different court on the same cause of action.
Where there are suits pending in different court but similar question of facts and law arises.
Where the judge is biased and making discrimination.

Circumstances where transfer is not allowed:

Transfer of cases from one court to another is not allowed when:-

Where there is mere balance of convenience to the applicant.
Where judges give the opinion in advance about the judgment of case.
Where there is a mere fact of an erroneous order.
Where claim is that the opposite party is an influential man in the locality.
Where a claim that the court is situated at a long distance from the residence of the applicant.

REFERENCES

" Author Adv. Saloni Singh - 25-04-2024 "