How to File a Transfer Petition in the Supreme Court: Step-by-Step Inter-State Transfer Guide

The Court asks which forum causes the least hardship, considering distance, the parties' means, the care of children, health, safety, and whether the party who must travel has anyone to accompany them. Where the husband has filed the case, the wife's convenience carries particular weight. In Sumita Singh v. Kumar Sanjay, the Court put it in one line: "It is the husband's suit against the wife. It is the wife's convenience that, therefore, must be looked at." In N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, it transferred the husband's case to Chennai, considering the wife's young age, her dependence on her elderly parents and the advantage of hearing related cases together.

Transfer is not automatic. A petition by a wife who is financially independent and living close to the transferor court may fail, and a husband's petition may succeed where he has the care of a young child or a serious illness. The essay on transfer petitions explains why related matrimonial cases so often end up in different States.

In matrimonial petitions, the grounds most often pleaded are the distance and the time and cost of each journey; the absence of any family member able to accompany the petitioner; the care of a young child or of elderly parents; the petitioner's own health; lack of independent income and dependence on parents; threats or an apprehension of violence at the place where the case is pending; and the pendency of the petitioner's own cases where she now lives.

Each ground should be supported by documents where possible: medical records, the birth certificates of children, proof of income or unemployment, and copies of complaints made to the police. The respondent's likely answers should be anticipated, for instance that the petitioner travels regularly to the other city, that she has her own income, or that the respondent is willing to pay for travel, and the petition should deal with them candidly rather than leave them to be raised in reply.

A criminal case is ordinarily tried where the offence was committed, and transfer imposes burdens on the prosecution and its witnesses. In Maneka Sanjay Gandhi v. Rani Jethmalani, the Court explained that the test is whether a fair trial can be had in the court where the case is pending. In Abdul Nazar Madani v. State of Tamil Nadu, it held that the "apprehension of not getting fair trial must be reasonable and not imaginary", and refused to transfer the Coimbatore blast trial to Kerala.

Transfer is ordered where the record shows real interference with justice. In K. Anbazhagan v. Superintendent of Police, the Court moved a prosecution of the then Chief Minister to another State after finding that the conduct of the prosecution and the circumstances in which witnesses turned hostile undermined confidence in a fair trial. A petition seeking transfer of a criminal case must therefore be supported by specific material, such as complaints of threats, evidence of hostility towards the accused or the witnesses, or a record of irregularities in the trial.

In Krishna Veni Nagam v. Harish Nagam, a two-judge Bench suggested that matrimonial cases could be heard by video conference instead of being transferred. A three-judge Bench in Santhini v. Vijaya Venketesh held by majority that, because Family Courts must first attempt reconciliation, video conferencing cannot be directed in a transfer petition; the Family Court may use it only after settlement efforts have failed, on the parties' joint request or where it will serve the cause of justice. Since the pandemic, courts have been more willing to permit appearance by video for particular hearings, and many petitions are resolved by combining a few physical appearances with virtual participation.

Because a transfer petition brings both parties before the Supreme Court, it is often an opportunity for settlement. The Court frequently refers the parties to its Mediation Centre, and a settlement there can resolve every proceeding between them at once: divorce by mutual consent, maintenance or a lump-sum payment, custody and visitation, and the withdrawal or quashing of connected cases. In Shilpa Sailesh v. Varun Sreenivasan, a Constitution Bench held that the Court may, under Article 142, dissolve a marriage that has irretrievably broken down and may dispense with the waiting period for divorce by mutual consent in appropriate cases, which allows such a settlement to be given effect in a single order.

Section 25 of the CPC allows the Court, when dismissing a transfer petition that it finds frivolous or vexatious, to order the applicant to pay compensation to the party who opposed it, and Section 446 of the BNSS contains a similar provision for criminal cases. A petition should therefore be confined to genuine grounds, stated accurately. Overstating distances, concealing other proceedings or the petitioner's own means, or alleging threats without any material can damage the petition and the petitioner's credibility in the connected cases.