Transfer Petition in the Supreme Court for a Divorce Case

What section 25 CPC allows, and when the High Court is enough

Section 25 gives the Supreme Court power to transfer a suit, appeal or other proceeding from a High Court or civil court in one State to a High Court or civil court in another State, if it is expedient for the ends of justice. The Court acts on an application by a party and only after notice to the other side. A divorce petition under the Hindu Marriage Act, a petition under the Special Marriage Act, a custody or guardianship case under the Guardians and Wards Act and a maintenance suit under the Hindu Adoptions and Maintenance Act are all civil proceedings that can be moved this way.

The power is needed only when the case has to cross from one State to another. A transfer between two courts subordinate to the same High Court is for that High Court under section 24 of the Code. One feature of our region is worth knowing: the courts of Punjab, Haryana and the Union Territory of Chandigarh are all subordinate to the Punjab & Haryana High Court. A case can therefore be moved from, say, Ludhiana to Gurugram by the High Court at Chandigarh without going to the Supreme Court at all. A case pending in Delhi that one spouse wants in Gurugram, or the reverse, is a different matter: Delhi and Haryana courts sit under different High Courts, so only the Supreme Court can move it.

Criminal proceedings that often run alongside a divorce, such as a complaint under the Protection of Women from Domestic Violence Act, a maintenance application under section 144 BNSS or a cruelty case under section 85 BNS, are transferred under a different provision, section 446 BNSS. They need their own petition, though the two are frequently filed together and heard together.

What the Supreme Court weighs

There is no fixed formula. The Court compares the hardship each spouse would face in the other's chosen forum. The facts that usually matter are:

• the distance between the two places and the time and cost of each journey;
• whether the petitioning spouse has an independent income or depends on family;
• young children living with the petitioner, and who would look after them on hearing days;
• illness or disability of the petitioner or of a dependant, supported by medical papers;
• any threat to the petitioner's safety at the present venue, set out with specifics rather than general fear;
• where the respondent spouse works and lives, and whether that person travels for work in any case.

In matrimonial transfers the Court has repeatedly said that the wife's convenience carries particular weight; Sumita Singh v. Kumar Sanjay (2001) is often cited for that approach. It is not automatic. Where the wife is well placed to travel, or where the husband has the children with him, the balance can tip the other way. The Court also has a middle course: instead of transferring the case, it can direct the husband to pay the wife's travel and stay for every date, or let her be excused from personal attendance on dates where her presence is not essential.

Video conferencing and the Santhini ruling

Many litigants assume that video hearings have made transfer petitions unnecessary. The law is more careful than that. In Santhini v. Vijaya Venketesh (2017), a three-judge bench held that the Supreme Court, while deciding a transfer petition, should not itself direct that a matrimonial case be heard by video. Once settlement efforts have failed, the family court may permit a video hearing if both parties consent. That ruling has not been withdrawn.

In practice, family courts in Delhi and Haryana now allow many routine dates to be attended online, and some evidence can be recorded remotely. Whether that is enough depends on the stage of the case and the attitude of the particular court. Cross-examination, counselling sessions and the final hearing often still need attendance in person, which is why a transfer petition remains worth filing where the distance is real.

Mediation before the decision, and what settlement can achieve

When notice is issued on a transfer petition, the Court frequently refers the spouses to the Supreme Court Mediation Centre. Many matrimonial disputes end there. If a settlement is reached, the Court can record it and, where the terms include a divorce by mutual consent, it can grant that divorce itself. In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench confirmed that the Supreme Court can use Article 142 to dissolve a marriage in such a case, including by waiving the six-month waiting period under section 13-B of the Hindu Marriage Act.

A settlement in the Supreme Court can also bring connected cases to an end, including criminal proceedings between the parties, if the Court is satisfied that doing so serves justice. That is why a petition should list every pending case between the spouses, in every court.

How a transfer petition is prepared and filed

1. 1.Collect the complete record of the case to be transferred: the petition, any replies, interim orders and the next date.
2. 2.Gather proof of hardship: an address proof for each spouse, travel distance, salary slips or proof of having no income, school records of children, medical papers, and copies of any police complaint about threats.
3. 3.Draft the petition with a supporting affidavit, naming the court to which the case should go and explaining why that court is competent to hear it.
4. 4.Add an application for an interim stay of the proceedings in the present court, so that no ex parte order is passed while the petition is pending.
5. 5.File through an Advocate-on-Record, serve the other spouse, and appear when the matter is listed for notice, mediation and final hearing.

Speed matters. If the respondent spouse has already obtained an ex parte order because hearings were missed, the transfer petition does not undo it; that order has to be challenged separately. Filing early protects the position.

How we work on these petitions

Our Supreme Court chamber in the C.K. Daphtary Lawyers Block prepares and argues transfer petitions, and the advocates who handle the underlying maintenance or custody case brief the Supreme Court team on the facts. Clients living in Gurugram or Chandigarh can meet us at those offices instead of travelling to Delhi. We tell clients at the outset whether the High Court can transfer the case more cheaply under section 24 and whether a request for travel expenses would serve them better than a transfer.