Transfer Petitions u/s 25 CPC in Matrimonial Disputes

Transfer Petitions are filed by litigants before our Apex Court with a prayer for an inter-state transfer of their case, i.e., for the transfer of their cases from one state to another. The power of the Hon’ble Supreme Court of India to transfer cases flows from Section 25 of the CPC, 1908, Section 446 of the BNSS, 2023, and Article 139A(2) of our Constitution. It is also to be noted that cases involving substantial question(s) of law of general importance may also be withdrawn by the Supreme Court from the High Courts to itself.

By way of this article, the author seeks to provide the detailed practical procedure that we follow before the Apex Court in Transfer Petitions filed under Section 25 CPC, particularly those involving matrimonial disputes. A very large chunk of these Transfer Petitions filed u/s 25 CPC pertains to Matrimonial Disputes, where parties seek transfer of their Divorce, Maintenance, Custody, Restitution Proceedings, etc., from one state to another. Order XLI of the Supreme Court Rules, 2013 [SCR], provides for the procedure that is to be followed therein.

Procedure in Transfer Petitions u/s 25 CPC:

1. Engagement of Advocate-On-Record (AOR): Only an Advocate-on-Record can appear, plead, and file cases in the Hon’ble Supreme Court of India on behalf of a litigant. Hence, the first step is to find/contact an A-O-R practicing before the Hon’ble Supreme Court.
2. Filing of Cases: The drafting work for preparation of the Petition is done by the A-O-R. The Transfer Petition must state succinctly the relevant facts and particulars of the case along with the grounds on which the transfer is sought, and the Petition is to be supported by an affidavit. The Affidavits and the Vakalatnama are to be mandatorily sworn and signed by the parties as per the 2013 Rules. The translation of documents from vernacular to English language is also to be done, if needed, as the Transfer Petition & its Annexures can only be filed in English language before the Supreme Court. The filing of the case is done either physically or through e-filing.
3. Diary Number and Defects: Whenever a petition/application is filed with the Supreme Court, a Diary number is generated in each case, whereafter the Petition undergoes scrutiny by the Registry. If some errors are found in it, the same are marked as ‘Defects’. The Defect(s) marked on the Petition is to be cured within 90 days from the date of marking of the defects.
4. Listing & Preliminary Hearing: Once defects are cured, the Transfer Petition becomes ripe for hearing and is assigned a case number, i.e., T.P. (C) No. ...123.../2024. The matter is then listed for hearing before a bench of the Apex Court for ex-parte preliminary hearing [unless the Respondent is on Caveat]. Upon arguments, the court may either issue notice to the Respondent and/or grant an order for stay of the proceedings sought to be transferred, or the court may reject such transfer petition.
5. Notice and reply of the other side: Upon an order of issuance of notice, process fee is filed by the registered clerk of the A-O-R, whereafter, notice is sent by the registry of the Supreme Court to the Respondents to appear before it and file their reply affidavit. Upon receipt of the Notice, the Respondent has to engage an A-O-R and appear before the Court through him and file his reply affidavit.
6. Final Hearing & Decision: Once the pleadings are complete, the matter is listed for final hearing, and upon hearing both sides, the court may either allow the transfer or reject the same. It is to be noted that generally, Transfer Petitions in matrimonial cases are allowed in favour of the wife.
7. Grounds of Transfer: The jurisdiction u/s 25 CPC is discretionary in nature as the only parameter provided by Section 25 CPC is the satisfaction of the court that the transfer is ‘expedient for the ends of justice’. The following factors may also be considered by the court while deciding a Transfer Petition in matrimonial cases:

• Convenience of the wife, particularly the convenience of the minor child, has to be taken into account.
• The place where most evidence is available, which place is more accessible, and the convenience of the parties and the witnesses are also considered.
• In the case of Kalpana Devi Prakash Thakur v. Dr. Devi Prakash Thakur, our Apex Court refused the prayer of the wife for transfer of the matrimonial proceedings from Mumbai to Palanpur, Gujarat, taking into account the submission of the husband that he 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 constant care and regular medical check-up, and the husband was ready to bear the travelling expenses of the wife.

Scope of Mediation in Transfer Petitions

The Hon’ble Apex Court has time and again emphasised that matrimonial disputes, particularly those relating to custody of children, maintenance, etc., are pre-eminently fit for mediation. Mediation is an alternate form of Dispute Resolution where both the Petitioner and the Respondent can settle their disputes by mutual agreement and settlement. Over the years, mediation has emerged as a preferred mode of dispute settlement, as instead of experiencing the pain of long drawn court battles, the parties can resolve their disputes amicably within a short time.

It is to be noted that during the subsistence of the transfer petition, with the consent of the parties, the Court may also refer the matter for mediation before the Supreme Court Mediation Centre, wherein specially trained mediators help the parties to amicably settle their disputes. It is worthwhile to note that every year, around 20-30% of cases are settled through mediation. By exercising its powers under Article 142, even divorce has been granted by the Supreme Court on the basis of settlement where there is an irretrievable breakdown of marriage. The guidelines for such grant of divorce by the Supreme Court have now been authoritatively formulated by a Constitutional Bench of our Supreme Court in Shilpa Sailesh v. Varun Sreenivasan.

In conclusion, Transfer Petitions under Section 25 CPC play a significant role in addressing matrimonial disputes, allowing parties to seek justice and relief across state lines. Understanding the procedural intricacies and the scope of mediation can greatly benefit litigants navigating this complex legal landscape.