These days the dockets of the Supreme Court are flooded with transfer petitions filed by women, seeking to get husband’s petition for divorce/RCR or even child custody cases etc transferred to her home town or a state where she has taken up residence or a job. Normally a lot of leniency & consideration(sometimes undue) is shown to women while deciding transfer petitions. I can tell from experience as a Supreme Court Advocate – in 90 % of the cases the Hon’ble judges would start with a tilt in favour of women. Apparently while deciding any woman’s transfer petition – the picture of a helpless rustic uneducated/illiterate lady conjures up in their mind, much water has flown down the bridge somebody tell them !
Be that as it may, there are a couple of things that you can do, which we would be discussing in this article, to try and prevent such a transfer, or even getting a transfer for yourself.
WHAT DOES THE LAW SAY ?
Section 25 of the Code of Civil Procedure, 1908 allows the Supreme Court to transfer a matter from one state to another if justice so demands. High Court is entrusted with the power in case of transfer within the state.
Section 25 is based on the ‘doctrine of forum convenience’ which means –‘the best forum’ or a forum where a fair trial can be had’. Normally there is a presumption that if a petitioner has filed a case in a court having jurisdiction – it is the best forum.
The burden is on the person seeking a transfer to prove to the court that if the proceedings are not transferred she would suffer irreparable injustice, on the merits of the case (going unrepresented in the case) and with respect to personal life (loss of job/health/safety issues), she would also have to prove that the latter is irreparable in monetary terms. Once all this is proved – she also would have to prove that you won’t suffer similar losses if the proceedings are transferred. Hence this is a double burden of proof. If she succeeds in proving this – the balance of convenience is said to lie in her favour.
Sadly courts have not been strictly insisting on the above reasonable tests, and transferring matters as a matter of course at the behest of women.
JUDGMENTS THAT CAN HELP YOU COUNTER THESE ?
Normally it is seen that a wife seeks transfer on the grounds of i) Safety & Economic Implications with traveling long distances; ii) Apprehension as to threat to life in husband’s state/unfounded allegations stating that husband or his relatives are people of influence; iii) Lack of economic means; This can be countered placing reliance on the Hon’ble Supreme Court Judgment in the case of 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.
2. If the woman is able bodied/educated/working/having economic means the balance of convenience clearly does not lie in her favour, and proceedings ought not to be transferred. Furthermore what needs to be emphasised more and more is that – for example a divorce case is carried on at Bangalore, the wife takes up a job at Delhi and seeks transfer. Now if the husband and wife have lived in matrimony at Bangalore, that is the place best suited and conducive to a fair and good trial, for the simple reason that better evidence is available there. The convenience of witnesses etc. cannot be completely disregarded. This can be achieved in cases where the matter has proceeded up to the last stages, and even in new matters where a large list of witnesses is filed by the Husband.
3. In Anandita Das v. Sirjit Dey (2006) The Hon’ble Supreme Court held “At one stage the Supreme Court was showing leniency to ladies. But Since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by the Supreme Court. On an average 10 to 15 transfer petitions are on board of each court on each admission day. It is therefore, clear that the leniency of the Supreme Court is being misused by the women. The Supreme Court is now required to consider each petition on it’s own merit. In this case no ground for transfer has been made out”. In this case a transfer was refused – even though the woman had a young child of 6 years in her custody. The Court held that grandparents are there to look after the child. The Court also held that the wife need not come all the time, and could apply for exemption and her application would be considered on merits.
This is a remarkable judgments that can help many men out there.
4. As a last ditch 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.
5. If the distance between the place where matter is pending and where it is sought to be transferred is not too much, court may refuse transfer. Illustratively in a case court refused transfer of case from Muzzafarnagar to Delhi (130 kms)
6. In addition to this a men should also liberally seek transfer and not concede to a transfer petition filed by wife, this way no strong judgments are able to come in favour of men. Men should, with the aid of the above case law & interpretation, fight and resist transfers and even start instituting transfer petitions especially if they have a modern/educated wife gainfully employed.
7. 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.
Some women have sought transfer of custody/guardianship petitions. These petitions are normally sought to be transferred to places where woman has taken up residence from place where the minor resides with father, Now there is a peculiar way of handing them as well, which I would discuss in my next article.