Interstate Case Transfers: Navigating Section 25 CPC and Section 446 BNSS (formerly Section 406 CrPC)

Only the Supreme Court can move a case from a court in one State to a court in another. Three provisions confer that power. Section 25 of the Code of Civil Procedure allows the Court, on the application of a party and after notice to the parties, to transfer any suit, appeal or other proceeding from a High Court or civil court in one State to a High Court or civil court in another, if satisfied that the transfer is expedient for the ends of justice. The application is made by a petition supported by an affidavit.

Section 446 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (which replaced Section 406 of the Code of Criminal Procedure) gives a corresponding power for criminal cases and appeals, exercisable on the application of the Attorney-General of India or of a party interested. Article 139A of the Constitution enables the Court to withdraw to itself cases involving the same or substantially the same questions of law pending before it and one or more High Courts, and to transfer cases from one High Court to another for the ends of justice.

Transfers within the same State are not made by the Supreme Court; they are dealt with by the High Court of that State under Section 24 of the CPC or Section 447 of the BNSS. A petition to the Supreme Court is appropriate only where the transfer sought is across State lines.

Matrimonial litigation is often split between two States because the statutes allow proceedings to be started in more than one place. Under Section 19 of the Hindu Marriage Act, 1955, a petition may be presented to the district court within whose limits the marriage was solemnised, the respondent resides, or the parties last resided together, and, where the wife is the petitioner, where she is residing on the date the petition is presented. Where a Family Court has been established for the area, the case is filed in that court.

Other proceedings follow their own rules. An application for maintenance under Section 144 of the BNSS (Section 125 CrPC) may be filed in the district where the wife resides, and an application under the Protection of Women from Domestic Violence Act, 2005 may be filed where the aggrieved person permanently or temporarily resides, carries on business or is employed. A criminal complaint of cruelty, on the other hand, is ordinarily filed where the offence is alleged to have been committed, which may be the matrimonial home in another State.

The common pattern is that the husband files for divorce or restitution of conjugal rights where the couple last lived, while the wife, who has returned to her parents' home in another State, files for maintenance and under the domestic violence law there. A transfer petition is the means of bringing the cases into one forum, or at least of moving the case whose location causes the greater hardship.

Most transfer petitions arise in matrimonial disputes, where a husband and wife living in different States file divorce, restitution, maintenance, custody or domestic violence proceedings against each other. The Court's approach is pragmatic: it asks which forum causes the least hardship, having regard to distance, the parties' financial 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, transferring a husband's matrimonial case from Ara in Bihar to Delhi, where the wife lived and worked, 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, the Court transferred the husband's case from Vellore to Chennai, considering the wife's young age, her financial dependence on elderly parents, and the desirability of having related cases between the parties heard together to avoid conflicting decisions.

The wife's convenience is not, however, the only consideration, and transfer is not automatic. Where the wife is financially independent, where the husband has the care of the children, or where his own health or circumstances make travel genuinely difficult, the Court weighs those facts too. Instead of transferring a case, it sometimes directs the husband to bear the wife's travel and stay expenses for each hearing, or permits a party to appear through counsel or by video conference.

Technology has reduced the need for transfers but has not removed it. In Krishna Veni Nagam v. Harish Nagam, a two-judge Bench suggested that matrimonial cases could be heard by video conference to spare parties long journeys, rather than being transferred. A three-judge Bench in Santhini v. Vijaya Venketesh took a narrower view by majority: because Family Courts must first attempt reconciliation and settlement, which depends on the parties being physically present, video conferencing cannot be directed in a transfer petition, and the Family Court may use it only after settlement efforts have failed, on the joint request of the parties or where it considers that video conferencing will serve the cause of justice.

Since the pandemic, courts have become far more willing to permit appearance by video for particular hearings, and transfer petitions are often resolved on terms that combine a limited number of physical appearances with virtual participation for the rest.

Transferring a criminal trial to another State departs from the ordinary rule that an offence is tried where it is committed, and imposes burdens on the prosecution and its witnesses. The Court therefore requires more than inconvenience. In Maneka Sanjay Gandhi v. Rani Jethmalani, it explained that the central consideration is whether a fair trial can be had where the case is pending, and that a party seeking transfer must show a reasonable apprehension, not a fanciful one, that justice will not be done.

The same standard was applied in Abdul Nazar Madani v. State of Tamil Nadu, where the accused in the Coimbatore bomb blast case sought transfer of the trial to Kerala, alleging a communal atmosphere. The Court held that the "apprehension of not getting fair trial must be reasonable and not imaginary", found no material showing that a fair trial was impossible in Tamil Nadu, dismissed the petitions and directed an expeditious trial at Coimbatore.

Transfer is ordered where the record shows real interference with the course of justice. In K. Anbazhagan v. Superintendent of Police, the Court transferred the disproportionate assets prosecution of the then Chief Minister from Tamil Nadu to Karnataka after finding that the conduct of the prosecution and the circumstances in which witnesses turned hostile undermined confidence in a fair trial in the State.

A transfer petition identifies the case to be transferred (the court, case number and parties) and the court to which it should go, states the grounds, and is supported by the petitioner's affidavit. Copies of the plaint or petition filed in the transferor court and of the summons or notice received are annexed, with English translations where they are in another language. An application for interim stay of the proceedings in the transferor court is usually filed with it.

Transfer petitions are commonly listed before a single Judge. At the first hearing the Court generally issues notice to the respondent and, where the petitioner faces an imminent date, may stay further proceedings in the transferor court in the meantime, so that no ex parte order is passed while the petition is pending. Service on the respondent can take time, so prompt steps for service are important. The step-by-step transfer petition guide covers the paper-book and filing.

Timing matters. A petition filed soon after the summons is received, before issues are framed or evidence is recorded, is more readily entertained than one filed after the trial has advanced, when a transfer would waste the work already done and the delay itself calls for explanation.

When a civil case is transferred under Section 25, the court to which it goes may, subject to any special directions in the order, either retry it or proceed from the stage at which it was transferred, and it applies the law that the court where the case was originally filed ought to have applied. The order usually directs the transferor court to send the record to the transferee court, which then fixes a date for the parties to appear. Parties should keep track of that date, since the transferee court may proceed if a party who has been notified does not appear.

A transfer is not the only order the Court can make. It may dismiss the petition while protecting the petitioner in other ways, for instance by permitting appearance through counsel or by video conference on most dates, or by directing the other party to meet the cost of travel for the hearings that require personal attendance. Section 25 also 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 BNSS Section 446 contains a similar provision for criminal cases.

Because transfer petitions bring both spouses before the Supreme Court, the Court often refers them to the Supreme Court Mediation Centre. Settlements reached there frequently resolve every proceeding between the parties at once: divorce by mutual consent, maintenance or a lump-sum settlement, custody and visitation, and the withdrawal or quashing of connected civil and criminal 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 statutory waiting period for divorce by mutual consent in appropriate cases. That power allows a settlement reached in a transfer petition to be given full effect in a single order, rather than requiring the parties to return to the trial courts.

Section 25 is not limited to matrimonial cases. Commercial suits, recovery proceedings and other civil cases may also be transferred where the ends of justice require it, for example where related suits between the same parties are pending in two States and there is a risk of conflicting decisions.

Article 139A serves a different purpose. Where petitions raising the same question of law, typically a challenge to a central statute or notification, are pending in several High Courts, the Court may transfer them to itself so that the question is decided once, authoritatively, rather than in a series of possibly conflicting judgments.