What if transferred case withdrawn and filled again at original court

My sister is separated for the last 5years. She has two kids. She leaves at Delhi now. We used to leave at jammu and she was married there. Her husband filled a case for custody in 2015 at jammu and was transferred to Delhi through Supreme Court. However, few months after it was transferred her husband withdrew case with liberty. Now he has filled same case again at Jammu. It's defeat the purpose of being transferred initially. Is it allowed? If not what should be done in this scenario?

Answers (5)

244 votes

Yes a case can be filed again, only under one condition when the petitioner/plaintiff has withdrawn the case "with the liberty to file it afresh on the same grounds" . if this condition is not met with then a person cannot refile it on the same ground. So u need to check whether the previous case while being withdrawn had the permission of the court to file it afresh on the same ground or not? Also considering that he had the permission of the court, then it will be a fresh case and u will again need to file a transfer petition before SC. You may of course refer your previous petition which was allowed in the SC while filing the same this time.

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98 votes

hello client hru,
i have gone through ur query which u have posted on lawreto.com
as per ur query your sister reside in delhi and ur sisters husband who have earlier filled a case of custody of childrens earlier but got it transphered to delhi and latter on he withdraws the case. and now again he has filled the same case again in jammu in this case you should get it trnaphered to delhi again and fight it

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333 votes

Madam here you didn't mention as why is your sister aloof from the husband and what is the age of the kids . Yes we need that to give the proper line of action.. if the kids are above 6 years then father can take the custody . The court can ask the kids too . So first the reason if saparate living and the age of kids .

186 votes

Any person is free to withdraw his case at his liberty during the case pendency of litigation. Each transfer case depends on the merit of the each case and not at the will of the party. However, the facts you have submitted here clearly shows the wrong intention of the husband of your sister. Your sister have every right to fight the case to show his ulterior motive to harass your sister.

171 votes

You will again need to move the Hon'ble Supreme court for transfer or contest the suit in Jammu. One a case has been withdrawn it is end of that case and new case can be instituted if there is no express bar in institution of any further case.

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