How to Transfer a Divorce Case?

हिंदी में पढ़ें
August 18, 2021
By Advocate Chikirsha Mohanty



The Law Commission in its 59th report (1974) had stressed that in dealing with disputes concerning the family the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. Transfer of cases relating to Matrimonial Disputes from a court situated in a particular state to a court situated in another state, can only be done by the way of ‘Transfer Petition’ which may be filed by either party to the case before the Supreme Court of India.

The Supreme Court in the case of Krishna Veni Nagam v. Harish Nagam, while dealing with transfer petition seeking transfer of a case instituted under Section 13 of the Hindu Marriage Act, 1955 (HMA) took into consideration the difficulties faced by the litigants travelling to the Court and, accordingly, posed the question whether there was any possibility to avoid the same. It also took note of the fact that in the process of hearing of the transfer petition, the matrimonial matters which are required to be dealt with expeditiously are delayed. The Court was of the view that in case where a husband files matrimonial proceedings at place where wife does not reside, the court concerned should entertain such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife.

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Jurisdiction of Filing a Divorce Case

Every petition under Section 19 of HMA can be filed with the District Court (family courts) within the local limits of whose ordinary civil jurisdiction:
The Marriage was solemnized, orThe respondent at the time of the presentation of the petition resides, orThe parties to the marriage last resided together, orIn case wife is the petitioner, where she is residing on the date of presentation of the suit, orThe petitioner is residing, in case respondent is out of the territory of which the Act applies or has not been heard for 7 years.



Grounds for Filing a Transfer Petition

Following are the grounds which the Courts consider while deciding transfer applications:

When the wife has the custody of a child who is below a certain age.When the wife is unable to travel owing to serious illness, handicap, etc.When the wife has also filed a case in the city where she is seeking transferWhen either of the spouse has shown persuasive evidence pointing out that there is a serious threat at the place where the trial is supposed to take place.When the parties have no objection to such transfer.
Transfer of matrimonial disputes under Section 25 of the Code of Civil Procedure:

Section 25 of Code of Civil Procedure (CPC) talks about the power of Supreme Court to transfer suits on the application of a party. If the Supreme Court is satisfied that an order under this section is expedient for the ends of justice, it can direct that any suit, appeal or other proceedings be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay compensation to any person who has opposed the application. The law applicable to any suit, appeal or other proceeding transferred under this section becomes the law which the court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such Suit, appeal or proceeding.

The Supreme Court has also been conferred with the power by the Constitution under Article 139A (2) to transfer the cases and has also been conferred statutory jurisdiction to transfer the cases. The Rules have been framed accordingly. The Court has the power to allow the petition seeking transfer or to decline the prayer and indubitably, it is on consideration of the merits of the case and satisfaction of the Court on that score.

Consult:Top Divorce Lawyers in India



Transfer of matrimonial disputes under Section 406 of the Code of Criminal Procedure

Section 406 of the Code of Criminal Procedure (CrPC) provides power to the Supreme Court to transfer criminal cases and appeals unfinished in one high court to another high court or from a criminal court subordinate to one high court to a different criminal court of equal or superior jurisdiction subordinate to another high court. The Supreme Court will act under the section only on the application of the Attorney General or of a party interested. If an application under Section 406 of the Code of Criminal Procedure is dismissed, the Supreme Court may, if it is of opinion that the application was trivial or vexing order the applicant to pay by way of compensation to the respondent such total will not be exceeding Rs 1000.

The Bombay High Court in Santosh Machindra Mulik v. Mohini Mithu Choudhari had allowed the transfer petition filed by the wife for seeking transfer of a criminal proceeding filed under Section 12 of Domestic Violence Act, 2005 (DV Act) The said application was opposed on the ground that the Family Court has no authority or jurisdiction to consider a domestic violence proceeding filed under Section 12 of the Act. Section 26 of the DV Act provides for relief available under several Sections of that Act being capable of being sought in pending legal proceedings before family courts affecting the aggrieved person and the respondent, whether such proceedings were initiated before or after the commencement of the Act. So far as jurisdiction of that court is concerned, having regard to Section 26 of the DV Act and the other judgments of the court’s ruling in favour of such jurisdiction, it cannot be said that the Family Court lacks jurisdiction in such cases.

Doctrine of ‘forum non conveniens’

Forum non conveniens has been explained by Indian courts as a discretionary power of the courts to not entertain a matter on the grounds that there exists a more appropriate court of competent jurisdiction, which would be in a better position to decide the matter. The doctrine of forum non conveniens requires an enquiry into whether it is in the interest of justice to relegate the parties to the alternative forum? The Supreme Court in Gana Saraswathi v. H. Raghu Prasad had held that the doctrine of ‘forum non conveniens” can be applied to matrimonial proceedings for advancing the interest of justice. It stated that the Courts usually allow the transfer petitions filed by wives so that they are not denied justice on account of their inability to participate in proceedings instituted at a different place.

It is not unknown for parties seeking justice to choose a forum most inconvenient to the adversary with a view to depriving that party of a fair trial.

Section 25 confers the power of transfer on the Supreme Court and is of wide amplitude. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one court has jurisdiction under CPC to try the suit, the plaintiff as ‘dominus litis’ has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular court convenient for them. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice.

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Why do you Need a Lawyer?

Divorce is a stressful time for everyone involved and getting a divorcecan be a hectic affair too, thus hiring a divorce lawyer is recommended. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienceddivorce attorneycan give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. You can also use LawRato'sFree Legal Adviceservice to get free advice on your case from expert divorce/matrimonial lawyers. A divorce lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he/she can avoid delay and get the divorce completed as quickly as possible.



 

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