Knowledge Base – A LawSikho Initiative

This article provides the readers with a step-by-step guide to drafting a matrimonial transfer petition before the Supreme Court of India. In this article, you will also learn about the legal framework, the grounds for filing, the required documents, the filing and hearing process, and strategies to contest such petitions. Whether you are a lawyer aspiring to practice in the Supreme Court of India, an advocate handling matrimonial disputes, or preparing for the Advocate-on-Record Examination, this article will provide you with valuable insights.

Introduction

Imagine you are representing a mining company that has its units in 5 different states. There are five different litigations on the same issue in all the High Courts: what is the tax you need to pay as per XYZ Act?

There is a high probability that all or some of the High Courts may interpret and answer this question differently. There will be a problem. 

To avoid this problem, the Supreme Court, under Article 139(A)(1) of the Constitution of India, has been vested with the power to withdraw all such cases to itself to decide.  

It’s called the power of transfer.

Usually, when we think of transfer, we always think that it is:

1. Being transferred by a higher court 
2. From one lower court to another

You are not wrong in that understanding. That is also a part of the power to transfer and is enshrined under Article 139 (A)(2). 

In this article, I will teach you everything about the transfer of cases while focusing on how to draft a transfer petition for transferring a matrimonial dispute from one state to another. 

Let’s start.

What is a transfer petition and why is it so important?  

In simple terms, a transfer petition is a petition that is filed either before the District Court, High Court, or the Supreme Court for the limited purpose of transferring a case from one court to another.

Transfer petitions act as an important legal tool that helps to ensure that the judicial process is fair and accessible to all parties. At the core of the power of transfer lies one single rule: interest of justice. 

Simply because a case has been initiated in one place doesn’t mean that it has to continue there despite all circumstances. What if the party contesting the case has a legitimate threat to life there? What if they cannot travel to appear in the case, leaving their kids behind?

That’s where this power comes into play. But there are some qualifications for the use of this power. We will learn that in a while. But before that, let’s learn some basics. 

Why should an advocate know about the Supreme Court’s power to transfer petitions?

Because if you want to establish your practice in the Supreme Court, you need to learn how to draft a transfer petition and all the procedural nuances. 

You might be surprised to know that in 2024 alone, the Supreme Court received over 3,000 transfer petitions, with matrimonial disputes forming nearly 70% of the cases filed. After Special Leave Petitions, transfer petitions are one of the most filed petitions in the Supreme Court. 

For those preparing for the AOR exam, here’s a bonus tip for you: transfer petitions are a favorite in the drafting paper. A well-drafted transfer petition can easily fetch you 25+ marks in just 15 minutes. Transfer petitions are comparatively easy to draft when compared to other petitions because the grounds to seek transfer are very limited. 

Also, imagine that you are a non-AOR but want to build a Supreme Court practice. You are bound to find clients who want to get their cases transferred from one state to another. 

If you know all the know-how of a transfer petition, then instead of relying on an Advocate on Record, you can do all the drafting and they can help you out with the filing part. For the uninitiated, only an Advocate on Record of the Supreme Court can file petitions in the Supreme Court.

But before we learn how to draft, let’s learn about the legal framework governing transfers in some detail. 

What is the legal framework for the transfer of cases?

Article 139A(1) of the Constitution with Order XL of the Supreme Court Rules, 2013

When a case is pending:

• in the Supreme Court and one or more High Courts or; 
• in one or more High Courts 

involving the same or substantially the same questions of law, then in such situations, the Supreme Court can withdraw the case or cases pending before the High Court(s) and dispose of all the cases themselves.

This power can be exercised by the Supreme Court:

• either on its own motion or;
• on the application of any party to the case or;
• on an application made by the Attorney General of India, 

The Supreme Court has to be satisfied that the questions are substantial questions of general importance.

This Article aims to prevent conflicting and contradictory judgments to maintain consistency in the interpretation of the issues across the country.

Article 139A(2) of the Constitution with Order XLI of the Supreme Court Rules, 2013

Under this provision, the Supreme Court can transfer any case, appeal, or proceeding pending before one High Court to another High Court if it deems it necessary for the ends of justice.

The Supreme Court uses this power when a change in the jurisdiction of the High Court is required on account of various factors such as convenience, fairness, or substantial legal issues. Please keep in mind that these factors combined form the basis of what we call as “interest of justice”. 

Now consider this situation: A marries B. They live in Delhi. B leaves town and files a divorce petition in the family court of a different state. A is a woman with no means. Can she approach the Supreme Court to transfer the case to her jurisdictional family court under Article 139A?

Interestingly, Article 139A doesn’t address this. That article is limited to transfers between High Courts alone. So, what do you do next?

This is when Section 25 CPC comes in. Section 25 of CPC provides for transferring a case from one civil court in one state to another in another. 

Section 25 of the Code of Civil Procedure, 1908 with Order XLI of the Rules

This provision provides for the transfer of civil cases by allowing the Supreme Court to move any suit, appeal, or proceeding from a High Court or any other civil court in one State to a High Court or any civil court in another State.

The last one is the transfer of criminal cases. 

Section 446 of the Bharatiya Nagarik Suraksha Sanhita, 2023

This provision deals with the transfer of criminal cases. It empowers the Supreme Court to transfer:

• Any particular case or an appeal from one High Court to another High Court.
• A criminal case from a court subordinate to a High Court to a court of equal or superior jurisdiction subordinate to another High Court.

The application for transfer in criminal cases can be made by:

• The Attorney-General of India or Advocate General of State
• Any interested party (e.g., litigants directly affected by the case).

You can file such cases when there is a reasonable apprehension of bias, hostility, or threats in the current jurisdiction.

Here’s a table to help you understand:

Aspect	Constitution of India	CPC	BNS
Kind of cases	All categories of cases	Civil cases	Criminal cases
Legal Basis	Art 139A	Section 25 CPC	Section 446 BNSS
Territorial Jurisdiction	Withdraw to itself – 139A(1) Transfer from one High Court to another: 139A(2)	Between any state High Courts/Civil Courts	From 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
Initiation Powers	On its own motion, the Application made by the Attorney-General Party’s application	Only on party application with mandatory notice to parties.	Attorney-General’s/Advocate General’s application Party’s application No suo moto power
Grounds Required	If there are substantial or substantially the same questions of general importance For meeting the ends of justice	It must be expedient for the ends of justice.	It must be expedient for the ends of justice.

When (and when not) to file a transfer petition?

This is where a lot of lawyers make mistakes.

Just because your client finds the existing court inconvenient does not mean that you should submit a transfer petition.

So, when is the right time to file a transfer petition? 

The Supreme Court, in the landmark case of Dr. Subramaniam Swamy v. Radhakrishna Hegde [(1990) 1 SCC 4], established the fundamental rule for transfer petitions that the pursuit of justice must be the primary consideration. 

Consider this as your ‘just cause.’ You must remember that the law does not want any melodrama, but it calls for clarity.

For instance, in a matrimonial dispute, the transfer petition is mainly filed on the following grounds:

• Convenience of the parties

In matrimonial disputes, the courts generally prioritize the convenience of the wife. For instance, if the wife has a child dependent on her, it is going to be difficult for her to leave the child alone and travel to a different place to attend hearings.

• Safety and Security 

In such cases, the wife is often subjected to harassment by the husband or his family at the current location therefore, to ensure the safety or security of the wife, a transfer is sought.

• Financial hardship

If any party faces financial hardship in traveling and litigating to a distant court, the court considers this as a valid ground to transfer the case. 

• The best interest of the child

If there is any dispute involving the custody of the child, then the interest of the child is considered to be of paramount importance. For instance, if the schooling of the child is being affected, then a transfer petition can be filed to transfer the case to a court that is closer to the school of the child.

For your understanding, I have also made a table mentioning the common grounds in civil (non-matrimonial) and criminal cases.

Case Type	Grounds for Transfer	Details & Supporting Cases
Civil Cases (Under CPC)	1. Multiplicity of proceedings	To avoid conflicting decisions Indian Overseas Bank v. Chemical Construction Co.[AIR 1979 SC 1514]
	2. Apprehension of justice	Reasonable apprehension that justice might not be obtained in the current court Kiran Ramanlal Jani v. Gulam Kader [1995 Supp (2) SCC 707]
	3. Balance of convenience	Considers convenience of both plaintiff and defendantJagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand Saraswati  v. Ramji Tripathi [AIR 1979 MP 50]
	4. Common questions	When common questions of law and fact arise between parties in two suits Bihar State Food & Supplies Corpn. Ltd. v. Godrej Soap Ltd. & Ors. [(1997) 1 SCC 748]
	5. Delay and expenses	Where transfer would avoid delay and unnecessary expenses Shiv Kumari Devenndra Ojha v. Ramajor Shitla Prasad Ojha & Ors. [AIR 1997 SC 1036]
	6. Public interest	Important questions of law or where a considerable section of the public is interested Arvee Industries v. Ratan Lal Sharma [AIR 1977 SC 2429]
Criminal Cases (Under BNSS)	1. Fair and impartial trial	When the accused has reasonable grounds to believe they may not get a fair trial at the hands of a particular judge, the petitioner must show the circumstances causing this apprehension.
	2. General convenience	For the convenience of parties and witnesses to ensure their presence during the trial
	3. Ends of justice	When a court finds it expedient for ends of justice to transfer the case

Is there a limitation period for filing a transfer petition and at what stage do you file one?

Although there is no specific statutory limitation period for filing a transfer petition, you must do so as soon as possible in the proceedings (before evidence is filed or arguments have been made) to prevent delays and also to avoid unnecessary objections from the opposite party about any delay. 

Even courts look down upon such strategic delays in the matter.

What is the anatomy of a transfer petition and how can it be drafted?

A badly drafted petition is unpleasant and utterly unsatisfactory, much like an overcooked souffle. That is how it is important to learn the art of drafting.

A transfer petition has some essential clauses similar to how our human body has essential organs.

I will help you learn the essential clauses of the transfer petition, so do not worry.

Let us use a real example to learn how to draft a transfer petition.

Scenario: B (husband) has filed a divorce case in Thane, Mumbai, but A (wife) resides in Cuttack, Orissa, and A wants to transfer the divorce case to Orissa. She has given the following facts:

• A and B got married in the year 2020 and the couple had twin daughters in the year 2022, who are presently 2 years old.
• Her aged parents are her only support system.
• She is financially dependent on her father’s limited income, as she was forced to leave her job.
• She faced mental and physical cruelty from B and his family in Thane for dowry.
• A left her matrimonial home in 2024.
• She has filed a case under the Domestic Violence Act and Section 498A IPC in Cuttack against B and his family.

Every Transfer Petition consists of the following essential components:

1. Synopsis

You must first draft the Synopsis. It is the first thing the judge will read from the file. So, think of it like an elevator pitch and here’s what you should keep in mind while drafting a Synopsis:

• It should be short and accurate
• It should read like a good short story explaining your case briefly
• The Bench should not have to read it twice to understand.
• It will not contain annexures or anything.
• Your list of facts will be included in your list of dates/events, so do not narrate those here, instead, present your main contentions and connect them with the facts.

The first paragraph of any synopsis should be an introduction to the case itself: why are you filing the petition- under which provision of law- give details of the case which is sought to be transferred- and to where. 

Let’s see what it is supposed to look like:

The present Transfer Petition is being filed seeking transfer of Civil Suit No. XXX of 2024 pending before the Civil Judge, Senior Division, Thane, Mumbai, filed under Section 13(1)(i-a) of the Hindu Marriage Act titled as B vs A to the Court of S.D.J.M.(Sadar), Cuttack, Orissa.

Second, give a brief background of the association of the parties.

Let’s see what it is supposed to look like:

The Petitioner and the Respondent got married in the year 2020  and were blessed with twins in the year 2022. The petitioner was forced to leave the matrimonial house in the year 2024 due to cruelty and harassment meted out to her and her daughters by the Respondent and his family for non-fulfilling dowry demands. She has subsequently filed a case against the Respondent and her in-laws under the DV Act and 498A IPC in Cuttack, in retaliation to which the Respondent instituted divorce proceedings against her in Thane, Mumbai, on false and frivolous grounds. 

Focus on your main contentions. The judge should be able to grasp your strongest points from the synopsis itself. Here’s how you do that:

The present petition is primarily being filed on the grounds that the petitioner has faced unspeakable harassment and torture at the hands of the respondent and his family throughout her marriage. She has also been threatened with dire consequences when she filed cases against the Respondent and her in-laws and thus, it would be a matter of risk to her life and limb if she were to travel to Mumbai to contest the divorce proceedings. 

Keep it brief. A page and a half should be sufficient enough and you must end with a definite conclusion: 

It is humbly submitted that it will be a matter of grave injustice and failure of justice if the Petitioner is not able to defend the said proceedings for her inability on the aforementioned grounds, facts and circumstances, amongst others and hence the present petition. 

2. List of dates

Remember that the List of Dates is always drafted chronologically. In our case, these dates are the most important ones:

• It will start on the date of the marriage of the parties. 
• It will have a subsequent date on when they moved to her matrimonial house.
• It will also include other important dates, such as incidents of harassment, such as if the Petitioner had initiated any proceedings against the Respondent when she left the matrimonial house, etc.
• It will end with the date of filing of the present Transfer Petition. 

This is how the list of dates will look like:

Date/Month/2020	A and B got married in Thane according to Hindu rituals.  Immediately after the marriage, A moved in with her husband B and in-laws at Thane.
[Insert Date]	B and his family started verbally and physically abusing A on the very next day of the marriage because A did not provide B and his family with luxury items
[Insert Date] [Insert Date] [Insert Date]	On date [Insert Date], [Insert Date], [Insert Date], B physically hit A in front of his whole family, causing bruises on A’s body. On the last date, A started bleeding from her mouth and she was taken to the hospital.
[Insert Date]	A gave birth to twin daughters in Thane, Mumbai
[Insert Date]	A’s father visited A to meet his grandchildren. B made a demand for a car. A’s father pleaded that he doesn’t have enough means to buy a car for him. This led to B severely humiliating A and her father.
[Insert Date] [Insert Date]	B threatened to hit one of the twin daughters if A did not agree to fulfill his demands of getting money from her father
Date/Month/2024	B had come home drunk and he grabbed A by her neck and pushed her into the wall and also kicked one of the daughters.
Date/Month/2024	On the very next day, A left her matrimonial home with her daughters.
Date/Month/2024	A filed a case under the Domestic Violence Act and Section 498A IPC in Cuttack against B and his family.
Date/Month/2024	B has filed a divorce petition against A at Thane before the Civil Judge, Senior Division, Thane.
Month/2024	Hence, the present transfer petition.

3. Cause title

This has to include:

• The name of the Court, 
• The jurisdiction under which you are filing the case- a transfer petition is filed under the Original Jurisdiction of the Supreme Court. As this is a civil case, it will be Civil Original Jurisdiction.
• The provision under which you are filing it and the names of the parties- as it is a case where we are seeking transfer from one family court to another, will be under Section 25 CPC. We also need to mention the relevant Order governing the transfer of cases from the Supreme Court Rules, which in this case is Order XLI. 

The drafted part will look like this: 

                                        IN THE SUPREME COURT OF INDIA

                                            CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO. _______________OF 20__

[PETITION UNDER SECTION 25 CPC 1908 READ WITH ORDER XLI OF THE SUPREME COURT RULES]

IN THE MATTER OF 

A, W/o- B, 

Aged about [insert age] years 

R/o [insert address]                                                         …PETITIONER

                                                       VERSUS

B, S/o- XYZ, 

Aged about [insert age] years 

R/o [insert address]                                                             …RESPONDENT

4. Title and salutation 

Next, you mention the title of the petition along with the short relief. It has to be indexed to the right side of the page. You also need to provide details about who the petition is being addressed to. The drafted part will look like this:

TRANSFER PETITION UNDER SECTION 25 OF CPC 1908 SEEKING TRANSFER OF CIVIL SUIT NO. XXX OF 2024 PENDING BEFORE THE CIVIL JUDGE, SENIOR DIVISION, THANE, MUMBAI FILED UNDER SECTION 13(1) (I-A) OF THE HINDU MARRIAGE ACT TITLED AS B VS A TO THE COURT OF S.D.J.M.(SADAR), CUTTACK, ORISSA

TO,

THE HON’BLE CHIEF JUSTICE OF INDIA AND

HIS COMPANION JUSTICES OF THE

SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE PETITIONER

ABOVENAMED

5. Introductory paragraphs

Here, you need to briefly introduce what you are filing and why. A declaration has to be provided that no other petition of a similar nature has been filed before this court in the said case. Drafted parts will look like this: 

MOST RESPECTFULLY SHOWETH:

1. The petitioner is filing the present Transfer Petition under Section 25 of CPC, 1908, seeking transfer of Civil Suit No. XXX of 2024 pending before the Civil Judge, Senior Division, Thane, Mumbai, filed under Section 13(1)(i-a) of the Hindu Marriage Act titled as B vs A to the Court of S.D.J.M.(Sadar), Cuttack, Orissa.

1A. That no transfer petition with respect to the aforesaid case, i.e. with respect to this case, has been filed before this Court or any other court for the same relief.

6. Facts of the case

This part provides a comprehensive overview of the details included in your List of Dates. Additionally, all the important annexures that you are relying upon will be included in the Facts of your case.

At the beginning, you must introduce yourself and also clarify your relationship with the Respondent. 

The petitioner is the respondent’s wife and presently resides in Cuttack at her paternal home. 

Next, you will present a chronology similar to what you did in the List of Dates. Since there is a lack of documentary evidence in matrimonial matters, you can describe the events by month or date. 

Ensure that you verify all the facts mentioned in your Petition.

This is a gist of how a drafted portion of facts will look like:

Facts:

1. A and B got married in Cuttack in 2020 and started living along with the parents of B in Thane, Mumbai.
2. The family of B started taunting her for being dark-skinned and not compensating them with enough dowry from the first day of her marital life.

I am not repeating all the facts here. You can copy and paste from the list of dates and expand where required. 

7. Grounds

Your grounds are one of the most important parts of your Transfer Petition. You have to present reasons as to why the Supreme Court should interfere and transfer your case to another jurisdiction. 

You will have to show that there will be a failure of justice if the transfer is not allowed.

In our case, there are certain facts that show that A will face legal hardships in contesting the case in Mumbai. We will use those as our grounds:

Always start your grounds with “BECAUSE”

• Because the petitioner has been subjected to inhumane harassment and cruelty at the hands of the respondent herein and his family for non-fulfillment of dowry demands, the petitioner has been subjected to physical and mental torture throughout their cohabitation and it would be a matter of serious risk to the mental and physical well-being of the petitioner to travel to Mumbai to contest the case.
• Because the petitioner is staying with her old parents, there is no one to accompany her to Mumbai to contest the case. In the absence of any support or assistance, the petitioner would be unable to contest the proceedings at Mumbai, resulting in grave prejudice and injustice to the petitioner.
• Because the petitioner has no source of income and is dependent on her parents for her and her children’s sustenance, the petitioner cannot travel to Mumbai to contest the case. Furthermore, the distance between Cuttack and Mumbai can only be covered by flight, which the petitioner cannot afford. She also does not have any family or friends in Mumbai who can offer her a place to stay and as such, not only is there financial hardship but also a matter of risk to her safety, as has been mentioned hereinbefore.
• Because the petitioner cannot leave behind her 4-year-old twins with her aged parents, nor can she travel with them to contest the proceedings in Mumbai.
• Because it would be a matter of great inconvenience for the petitioner to travel to Mumbai, whereas the respondent has the financial means to travel and contest the cases in Cuttack.
• Because it is expedient in the interest of justice and convenient for the petitioner and the witnesses that the case be transferred to Cuttack, ensuring a fair and impartial trial without subjecting the petitioner to any hardship or endangerment from the respondent or his family.

You can add additional grounds as per the facts of your case, but more or less, in all matrimonial cases, these are the most common and important grounds. 

Once you have drafted the grounds, insert these two sentences as a matter of practice: 

That in view of aforesaid grounds the petitioner has approached this Hon’ble Court by way of filing the present transfer petition.

The present petition is filed bona fide for the ends of justice.

8.  Prayer clause

In our prayer clause, we are seeking the transfer of the matrimonial case from Thane to Cuttack. So, our prayer clause would look something like this:

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:

• Transfer the Civil Suit No. XXX of 2024 pending before the Civil Judge, Senior Division, Thane, Mumbai, titled as B vs A to the Court of S.D.J.M.(Sadar), Cuttack, Orissa.
• Pass such further order [s] as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

Note: The Supreme Court’s Handbook on Practice and Procedure 2017 prescribes the guidelines for drafting transfer petitions.

And that’s all! You have learned how to draft a transfer petition. Now, let’s learn some procedural requirements. 

What are the documents required to file a transfer petition?

It is necessary to ensure that all necessary evidence to support the request is in place.

A list of the documents required to start getting things rolling is below:

1. Main petition

As the title suggests, this is the document that lays down the request to transfer the case from its present place to another one. Make sure it’s specific and contains sufficient evidence.

2. Interlocutory applications

You may need to file all or some of them alongside your main petition. A couple of common ones are:

• IA for Ex-parte Stay: This one’s for when you want to stay the proceedings in the current court while your transfer petition is being heard.
• IA for Exemption: You will file this application if you seek certain exemptions, for instance, if you wish to seek exemption from filing certified copies of documents or from filing English-translated documents for a valid reason.

3. Affidavit

A sworn statement under which one has to verify the contents of the petition. It has to be signed either by the petitioner or by someone well-acquainted with the facts of the case. It should also be notarized and comply with the court formatting rules.

4. Copies of pleadings or orders

You need to file certified copies of all the important documents in the case, viz., plaint, the written statement or any interim orders, etc. If any of these documents are in a language other than English, then you need to get them translated into English and then file them. It is necessary to ensure that the Court can understand the documents filed with the petition.

5. Supporting evidence

This is the crucial set of documents that you need to file to support your transfer request. But what kind of evidence do you need?  Let me show you some examples:

• Proof of inconvenience: If the present court is causing inconvenience on account of distance, health, or financial constraints, then you can file necessary documents, viz. flight tickets, medical records, or financial statements that demonstrate the inconvenience clearly
• Evidence of bias: If you feel the current court is biased, then you can prove it by filing copies of the judgments, orders, or any communication that demonstrates signs of bias against you.

What is the procedure from filing the transfer petition till the passing of the final order?

So, you have decided to file a transfer petition in the Supreme Court. What comes next? 

The process of filing the petition till it is finally decided by a final order.

Let us understand the process together step by step  

1. Filing the petition

The first step is to file the transfer petition. You can either file it in person at the Supreme Court registry or through the e-Filing portal on the Supreme Court website.

But wait, what is required?

• Supporting documents: Make sure that you attach all necessary documents to support your case.
• Court fee: If it is a matrimonial matter, then the court fee is ₹500 and for any other civil cases, it is ₹2,500.

Important tip: Only an Advocate on Record (AOR) can file petitions in the Supreme Court, so you need to sign a Vakalatnama to allow them to represent you. 

2. Addressing filing defects

After you file the petition, the case will be assigned a diary number that will help you track the status of your case. The registry will review the paperbook to ensure that it complies with all the rules. But if there are any defects or missing information, then you will be notified about them and you have to resolve it.

What happens here?

• The registry checks if everything is in order: pagination, all documents are attached, certified, indexed properly etc. 
• If there’s an issue, you will need to address it by refiling the case. What that means is if some of the pages are dim, unnumbered, etc., you simply replace those pages in the filed copies. If the entirety of your petition needs to be changed, you can do that too. 

Once everything is in order, your case will receive a case number and it will be ready for the next stage.

3. Listing the case

   Now that the paperwork is sorted out, the case will be listed for hearing. Fresh Transfer Petitions shall be listed before a single judge and as per the circular dated 11th April 2023, after notice, matters shall also be listed before a single judge. The case will then be added to the court calendar.

What should you expect?

•       You will receive a notification about the date of your hearing.
•       Then you enter the next phase, where things will get serious

4. First hearing

On the first hearing, the court will decide whether to issue a notice to the respondent and also whether any interim relief should be granted in the matter or not.

The court has the power to pass an order to stay the proceedings in the original court for a temporary period until they hear the petition.

You must know that the court will pass such an order in the petition only if it finds merit in the petition.

So consider this as an important stage because any decision of the court, whether it is to issue notice or to grant interim relief, can have a huge influence on the entire case.

So, as an advocate, it is your responsibility to present sufficient grounds for transfer 

5. Notice and pleadings

After the court issues notice to the respondent, they will have a chance to file a counter affidavit to contest the petition. 

This is a response of the respondent to the petition.

You must also remember that in transfer petitions, the petitioner usually does not get a chance to file rejoinders, etc.

6. Final hearing of the matter

After the pleadings are complete, the matter is scheduled for a final hearing and both parties will present their detailed arguments before the bench.

At this stage, the Court will consider the merits of the application and it is your role to present the important facts of the case along with the grounds for transfer and support that with evidence and relevant case laws. 

You must also prepare for all possible counterarguments and place on record reported cases of the Court to substantiate your point and counter the arguments of the opposite parties.

7.  Final order

After considering all arguments and reviewing the pleadings, the court passes its final order.

If the petitioner has shown sufficient grounds to transfer the case, the court will order in favour of the petitioner and issue an order transferring the case to the requested court, which will be the final step in this petition, but the case will continue in the new court.

However, if the petitioner has failed to show any grounds, then the court will dismiss the petition.

The Supreme Court considers the following criteria in deciding transfer petitions:

• To balance justice in the matter;
• To prevent causing any inconvenience to any of the parties; and 
• To ensure fair proceedings in the lower courts.

How to contest a transfer petition?

If you have been served with a transfer petition and you are representing the opposite party, then let me show you how you can contest it.

Firstly, you must challenge the grounds and show the court that the basis on which the transfer petition has been filed lacks merit. For example, if the petitioner has relied on grounds of inconvenience or bias, then you must argue that there is no evidence to support such claims.

You can then highlight the prejudice that will be caused either to your client or to the matter, showing how such a transfer would be more harmful than helpful. For example, you can highlight the gross delay that will be caused in the matter, the extra cost or expenses that the parties will have to incur, and the unnecessary trouble that will be caused to your client.

But you must not stop there, you must even suggest practical solutions to the court, such as online hearings or flexible trial dates that will address the concerns of the petitioner. This will show that you are willing to cooperate in the matter without agreeing completely to a transfer.

You must not just make bare statements, you must even back them with documents and evidence in your counter affidavits.

Now remember that next time you are served with such a petition, do not let it go unchallenged and ensure the case stays where it is.

What is the effect of the transfer order?

If you are involved in a transfer petition and the court decides to transfer the case to a different court, what does that mean exactly?

Let me tell you.

As soon as the court passes an order of transfer, it becomes effective regardless of the fact that the order of transfer has not been communicated to the subordinate court. 

After the order is passed, the case papers are moved to the new court either physically or electronically and the proceedings continue from the last stage that was pending before the earlier court.

But if the petition is dismissed by the court on frivolous grounds, the court may impose costs or ask the petitioner to compensate the respondent. This measure is generally taken in order to prevent any misuse of the legal system.

In the past, the Supreme Court has imposed penalties on the petitioner for any amount ranging from ₹10,000 to ₹1,00,000 for such frivolous transfer petitions.

Conclusion

To conclude, let me tell you that before you file a transfer petition or contest such petitions, it is important that you prepare a proper strategy:

You must consider whether you are simply asking for a change of venue or do you have a strong basis for it that ensures that justice is delivered most effectively.

So remember to take your time to prepare, strategize, and draft your petition because that will form the basis of your arguments and eventually impact the outcome of the case.

 FAQs about Transfer Petitions 

1.  How long does it take for the court to decide on a transfer petition? 

The Supreme Court usually takes anywhere between four to six months to decide the transfer petition after hearing both parties on merits, until then the proceedings in the court below are stayed by order of the Supreme Court.

2. Is it mandatory to show inconvenience when filing a transfer petition? 

It is not mandatory to show inconvenience when filing a transfer petition, as it is one of the grounds for filing such a petition.

3. Can a transfer petition be filed directly in the Supreme Court? 

Yes, you can file a transfer petition directly in the Supreme Court through an Advocate on Record of the Supreme Court, but you must ensure that it is an interstate transfer case.

4. Can a transfer petition be withdrawn once filed?

Yes, a transfer petition can be withdrawn once filed in the court. In the case of Anjali Kumar & Anr. v/s. Prashun Kumar, the petitioner, proposed to withdraw the transfer petition since she wanted to withdraw the main case itself. The Supreme Court accordingly dismissed the transfer petition as withdrawn.

5. What are the relevant provisions of the Civil Procedure Code (CPC) and  Bharatiya Nagarik Suraksha Sanhita (BNSS) that deal with the power of other courts (besides the Supreme Court) to transfer cases?

• Section 24 of the CPC deals with the power of District or High Courts to transfer civil cases; and

• Section 447 of Bharatiya Nagarik Suraksha Sanhita deals with the power of the High Court to transfer criminal cases and appeals.

6. What is the importance of citing relevant precedents in transfer petitions and how can case law be effectively incorporated in the transfer petitions?

Citing relevant precedents in the transfer petition helps support the legal proposition that you are relying upon during the hearing. It assists in forming a strong basis for seeking the transfer of the case. It also acts as an important factor in enabling the Court to allow the petition since a similar factual situation has already been dealt with by the Court in the past.

But only cite cases that are absolutely similar in facts, or it can be distinguished based on facts and cause you more harm than good. 

7. What are notable Supreme Court decisions on transfer petitions?

The following judgments are a few of the notable decisions of the Supreme Court on transfer petitions:

• Bhiaru Ram & Ors. v. Central Bureau of Investigation & Ors. [(2010) 7 SCC 799] – The Supreme Court has held that mere convenience alone cannot be a ground for transfer. However, if a transfer petition is not granted, it will result in a failure of justice, then it can be granted.

• Rhea Chakraborty v. State of Bihar & Ors.[AIR 2020 SC 3826]– In this case, the Supreme Court allowed CBI to investigate the matter in order to do complete justice and also to make the people confident about the transparent and true investigation of the matter.

8. What are the common mistakes to avoid while drafting a transfer petition?

You must avoid the following common mistakes when you are drafting the transfer petition:

The first one is to avoid drafting vague and general grounds without stating any legal ground to transfer the case.

The second one is to avoid making allegations without having any documentary evidence in support of those allegations.

Third and most important is to put all the relevant and material facts on record without suppressing any facts from the court. If you do not follow this, then your chances of getting a favorable order from the Court are next to impossible.

Lastly, you must consider the convenience of the opposite party so that you can show the court that the proposed transfer will not cause any inconvenience to the other party.

9. What is the role of a senior advocate in filing transfer petitions?

The senior advocate plays a very important role in complex cases of transfer petitions. A good and experienced senior advocate can make all the difference in obtaining a favorable order. 

You can consult them and obtain an opinion before filing the transfer petition, which can help you draft a strong petition.

Their advice can be a game changer for either side, as they can advise you on how to approach and prepare for the matter, which will make sure that the grounds are strong enough to leave the Court with no other option but to allow the petition.

With years of experience backing them, they will be able to easily suggest relevant judgments of the court that can be used not only while arguing but also in drafting the petition.

They will not only tell you about the strong points but also inform you of the shortcomings in the matter that you can keep in mind while drafting the petition to make a watertight petition.

10. What is the impact of transfer petitions on the speed of legal proceedings and its practical challenges?

When you file a transfer petition, the original proceedings in the lower court are usually put on hold until the higher court ( Supreme Court or High Court) decides the matter. This can significantly delay the resolution of the main dispute till the decision is made by the higher court.

The major practical challenge is in matrimonial transfer petitions, where one of the parties always faces logistical or financial issues on account of the transfer.