Transfer Petition in a Matrimonial Case Before the Supreme Court

When do you need the Supreme Court to transfer a matrimonial case?

Only when the case has to move from a court in one state to a court in another state. A divorce petition pending in a family court in Pune that the wife wants moved to Delhi, a restitution petition in Gurugram (Haryana) that she wants moved to Dwarka (Delhi), a maintenance case in Ghaziabad (Uttar Pradesh) that the husband wants moved to Jaipur: each of these crosses a state line, and only the Supreme Court can order it, under section 25 of the CPC.

Transfers within a state are handled lower down. Under section 24 of the CPC, the District Judge can move a case between courts in the district, and the High Court can move it between districts in the state. So a case in the Saket family court can be moved to the Dwarka family court by the Principal Judge or the Delhi High Court, and a case in Noida can be moved to Lucknow by the Allahabad High Court. Filing in the Supreme Court for an intra-state transfer wastes time; the registry will point to the alternative remedy.

Delhi itself is a single state-level unit for this purpose. That is why so many NCR transfer petitions are between Delhi and Haryana (Gurugram, Faridabad) or Delhi and Uttar Pradesh (Noida, Ghaziabad). Short distances, as discussed below, make these petitions harder to win.

The provisions that apply

What does the Supreme Court look at in a matrimonial transfer petition?

The test is whether transfer is expedient for the ends of justice, and in matrimonial cases the Court has long given weight to the wife's convenience. In Sumita Singh v Kumar Sanjay (2001) the Court transferred the husband's case to where the wife lived, observing that it is the wife's convenience that must be looked at. Many orders since then follow that approach, particularly where the wife lives with her parents, has no income of her own, has a small child or would have to travel a long way alone.

That does not mean every wife's petition is allowed. In Anindita Das v Srijit Das (2006) the Court noted that transfer petitions by wives were being filed almost as a matter of course and said each must be decided on its facts. The Court considers the distance and travel time, whether she is employed and can afford the travel, whether she has a child to look after, whether there are threats or a history of violence at the place where the case is pending, her health, and whether the husband has offered to pay her travel and stay.

When Advocate B.K. Singh prepares a transfer petition, he looks hard at what the papers actually show about these factors, because the petition is usually decided on the affidavit and annexures alone. A ticket price, a child's school certificate, a medical record and a police complaint about threats do more than paragraphs about hardship. A petition that only says the distance is long, without anything to show the cost and difficulty, is the one most likely to be dismissed or disposed of with a direction for travel expenses.

Factors that help or hurt a transfer petition

No single factor decides the case. This is how they tend to weigh in practice.

Can a husband get a matrimonial case transferred?

Yes, but it is harder. The Court has repeatedly said that the wife's convenience comes first in matrimonial transfers, so a husband needs something more than his own convenience. Petitions by husbands have been allowed where the husband has custody of a young child, where he has a serious illness or disability, where he is the sole carer of elderly parents, or where the wife has filed several cases against him in different places and the transfer brings them together in one court.

A husband's petition that only says the wife's case is far away, that he has a job, or that her case is false, rarely succeeds. Where the wife has filed a case in her city and the husband has a counter-case in his, the Court may transfer his case to her city so both are heard together, which is practical for both. A husband's realistic aim in many of these matters is not transfer but an order allowing him to appear by video or through counsel on routine dates, with exemption from personal attendance in the criminal case.

Is video conferencing an alternative to transfer?

Sometimes, but the Court cannot force it on an unwilling party at the transfer stage. In Krishna Veni Nagam v Harish Nagam (2017) a two-judge bench suggested video conferencing as an alternative to transfer. Later that year, a three-judge bench in Santhini v Vijaya Venketesh held by majority that video conferencing cannot be directed in a transfer petition, and that in the family court it can be used only after settlement efforts have failed and both parties consent. Krishna Veni Nagam was overruled to that extent.

Practice has moved on since then. Since the pandemic, courts in Delhi and many other cities conduct hybrid hearings routinely, and where both spouses agree, family courts commonly allow one of them to join by video. In transfer petitions, the Court often records the parties' agreement on virtual appearance, or the husband's undertaking to bear expenses, instead of transferring. A wife who is comfortable appearing by video for routine dates can say so; one who is not, for example because she needs to be physically present for mediation or evidence, can insist on the Santhini position.

How a matrimonial transfer petition is filed and heard

The steps below are for a civil transfer petition under section 25 CPC. A criminal transfer petition under section 446 BNSS follows the same route with a few differences in format.

1. Collect the papers from the case below

   Get a copy of the petition filed against you, the summons or notice, and the order sheet showing the next date. Without these, the petition cannot be drafted.

2. Engage an Advocate-on-Record

   Only an AOR can file in the Supreme Court. Other advocates, including your own advocate in Delhi, can draft and argue alongside the AOR.

3. Draft the petition and affidavit

   The petition sets out the parties, the case to be transferred, the court to which it should go and the grounds: distance, finances, children, safety, health and any other pending cases. The affidavit is sworn by the petitioner.

4. Prepare annexures and file

   Attach the copy of the case below, proof of residence, proof of travel time and cost, medical and school records, and any police complaints. File through the AOR, with a prayer for interim stay of proceedings in the court below.

5. Preliminary hearing

   The Court may issue notice and stay proceedings below, refer the parties to the Supreme Court Mediation Centre, dismiss the petition, or dispose of it with directions such as travel expenses or virtual appearance.

6. Service and reply

   Notice is served on the other spouse, who may file a counter affidavit. The petitioner can file a rejoinder. Mediation may run in parallel.

7. Final order

   If transfer is allowed, the case goes to the named court, often a family court in the petitioner's district, and the record is sent there. The parties appear before the new court on the date fixed or as notified.

Until the Supreme Court passes a stay, the case below continues. Keep appearing there, or have your advocate appear and inform the court that a transfer petition is pending. Many people lose ground because they stop attending after filing and an ex parte order is passed.

Documents for the transfer petition

Bring what you have. The AOR's office will tell you what else the registry needs.

What happens at the first hearing?

Most matrimonial transfer petitions are disposed of within a few hearings. At the first listing, the Court will usually do one of four things: issue notice and stay proceedings in the court below; issue notice and refer the parties to mediation; dismiss the petition if no case is made out, for example where the distance is short; or dispose of it straight away with a direction, such as asking the husband to pay a fixed sum towards the wife's travel for each date or allowing virtual appearance.

A stay of proceedings below is valuable. It freezes the husband's divorce case while the Court decides where it should be heard, so the wife does not have to travel in the meantime. If notice is issued without a stay, ask for it specifically at the next date, explaining what is coming up in the case below.

The time from filing to final order varies widely. Some petitions are decided within a few months; others, especially those referred to mediation, take a year or more. The good news is that with a stay in place, the delay usually costs the petitioner little.

Mediation in the Supreme Court and settlement

A large share of matrimonial transfer petitions are referred to the Supreme Court Mediation Centre. For many couples, this is the first time they sit across the table with trained mediators and advocates on both sides. Because all the cases between them can be put on the table at once, the divorce, maintenance, DV case, cruelty FIR and stridhan, mediation at this stage often produces a complete settlement.

When it does, the Supreme Court can give effect to it in one sweep. It can grant divorce by mutual consent using its power under Article 142, as recognised in Shilpa Sailesh v Varun Sreenivasan (2023), and quash the related criminal cases, so the couple does not have to go back to several courts. This is one of the reasons a transfer petition can be worth filing even when the transfer itself is uncertain. The wider principles are in irretrievable breakdown after Shilpa Sailesh, and court-annexed mediation at the trial stage is covered in mediation in Delhi family courts.

A settlement in mediation should cover everything: the amount and schedule of payment, return of stridhan, custody and visits, withdrawal or quashing of each case by name and number, and an undertaking not to file further cases. A point Advocate B.K. Singh makes to clients going into Supreme Court mediation is to bring a list of every pending case with its court and number, because a settlement that leaves one case out has to be enforced later in a lower court.

Transferring criminal cases under section 446 BNSS

Criminal transfers are harder. A cruelty case under BNS section 85 is usually registered where the wife lives, which is convenient for her and inconvenient for the accused husband and in-laws. Their transfer petitions under section 446 BNSS succeed only where there is real reason to fear that a fair trial is not possible, or other strong grounds; convenience alone is rarely enough, and the wife's convenience as the complainant weighs heavily.

For the accused, the more useful remedies are usually in the trial court itself: exemption from personal appearance on routine dates, appearance through counsel, and, where the accused lives abroad, appearance by video for some stages. The same applies to DV and maintenance cases before a magistrate, which are also covered by section 446 when they need to move between states. Where the matrimonial dispute has been settled, the High Court can quash the FIR under BNSS section 528, or the Supreme Court can do so as part of an overall settlement.

Transfers within Delhi NCR: why short distances rarely succeed

Many Delhi NCR couples live a short drive apart but in different states. A wife in Vasundhara (Ghaziabad) facing a divorce case in the Karkardooma family court in East Delhi, or a wife in Dwarka facing a restitution petition in Gurugram, technically needs the Supreme Court to move the case. The Court is usually unwilling to transfer a case over twenty or thirty kilometres. It is more likely to direct the husband to pay travel expenses or to allow virtual appearance, and may dismiss the petition with a remark that the distance does not justify transfer.

That changes when there is something more: a history of violence at the place where the case is pending, a newborn, serious illness, or a set of cases already running on her side that the transfer would bring together. If you are within NCR, think carefully about whether those additional facts exist before filing. Otherwise the petition costs time and money for little result. A restitution petition filed tactically against you has its own answer; see restitution of conjugal rights under section 9.

What happens after the transfer is allowed?

The Supreme Court registry communicates the order to both courts, and the court below sends the record to the transferee court. This can take a few weeks. The transferee court then lists the case and issues notice, or the parties appear on a date fixed by the Supreme Court's order. Keep a copy of the transfer order and check with the transferee court's registry; do not wait for a notice that may be delayed.

The case continues from the stage it had reached. Pleadings already filed stay on record, and evidence already recorded is not usually recorded again. If the Supreme Court has directed the transferee court to decide the case within a time, the parties can point to that direction to seek early dates. If your own case is also pending in the transferee court, ask for both to be heard together, which avoids contradictory orders.

If you are opposing a transfer petition

File a counter affidavit that deals with facts, not accusations. Show, with documents, the actual travel time and cost, the wife's employment or income if she has any, cases she has herself filed in your city, and your offer: travel and stay expenses for her and an escort for each date, consent to virtual appearance on routine dates, or flexibility on dates. An offer made in writing in the counter affidavit, and honoured, often persuades the Court to dispose of the petition without transfer.

If you have custody of a child, a serious illness or care responsibilities, put the records on file. Do not argue that the wife's case is false; the transfer petition is not the place to try the divorce. The Court decides where, not who is right.

Mistakes in matrimonial transfer petitions

• Stopping attendance below. Until a stay is granted, the case below continues, and an ex parte order can be passed.
• Filing in the Supreme Court for an intra-state transfer. Within a state, go to the District Judge or High Court under section 24 CPC.
• Thin annexures. Hardship must be shown with tickets, records and complaints, not assertions.
• Short distances with no special facts. NCR petitions without something more are usually dismissed or disposed of with expenses.
• Going to mediation unprepared. Bring the list of every case, your income papers and a realistic settlement range.
• Delaying the petition. Filing after evidence is nearly over weakens the argument that travel would cause hardship.

What to do this week

• Get a copy of the petition and summons from the case filed against you, and note the next date.
• Arrange for an advocate to appear on that date and seek time, mentioning the intended transfer petition.
• Collect proof of your current address, travel fares and times, and your income or lack of it.
• Gather the child's birth and school records, and any medical or police records.
• List all cases pending between you and your spouse, with court and number.
• Speak to an advocate who works with an Advocate-on-Record so the petition can be filed promptly.

Having your papers looked at

Whether a transfer petition is worth filing depends on the distance, your circumstances and what has been filed so far. If you want an advocate to read the summons and tell you whether to file, the team of Advocate B.K. Singh at B.K. Singh & Associates can review the papers through the enquiry page. For the court itself, see our page on Supreme Court matters in Delhi, and for divorce cases more generally, the family and divorce law practice page.