Transfer Petition

Flavor of the season            

Yes, this is how the transfer petitions in matrimonial cases are being addressed by the Hon’ble Supreme Court. Every second wife is before the Supreme Court seeking transfer of the cases from one state to another and perhaps they were lucky enough to get the same as and when the Judges find that the petitioner is the women. But since the harassment suffered by the husband due to the false cases already pending against them and finally the Hon’ble Supreme Court Refusing to transfer a matrimonial dispute to the wife’s convenience, a Supreme Court Bench comprising of Chief Justice H.L. Dattu and Justice A.K. Sikri, observed, “Estranged wives seeking transfer of cases, filed by husbands, to their places of residence has become the order of the day. We had become too liberal in acceding to their requests. But the husbands also have a right. Why the husbands should be always made to suffer.” 
 

Hon’ble Supreme Court has stated that these petitions be not disposed of in favor of the wife’s without critically assessing the term “doctrine of forum convenience’ which means –‘the best forum’ or a forum where a fair trial can be had’. Because normally there is a presumption that if a petitioner has filed a case in a court having jurisdiction – it is the best forum. The burden is on the person seeking a transfer to prove to the court that if the proceedings are not transferred then the petitioner would suffer irreparable injustice, on the merits of the case (going unrepresented in the case) and with respect to personal life (loss of job/health/safety issues), would also have to prove that the latter is irreparable in monetary terms and many other factors.

Rather as a matter of fact the Husband cannot be always made to suffer and there are judgments passed by the SC wherein he can counter the allegations made by the wife and protect himself from being further harassed. Instances of these could be described as follows:  

1. If the wife claims to have a minor child then grandparents can be asked to look after the child and merely on this ground the petition should not be transferred (Anandita Das v. Sirjit Dey (2006))

2.  If the wife claims a far distance then effort to prevent a transfer the husband can make an offer to bear IInd class AC tickets for the woman to travel and her stay expenses. This is normally considered by the court.

3. If the wife claims a threat to her life and she cannot commute strong proof is required to be shown and merely by stating fear to her life the court will not be inclined to transfer the same as held by Hon’ble Supreme Court in Priti Sharma v. Manjeet Sharma -  (2005) – the court, in the case of a wife seeking transfer on the grounds of being unemployed and unable commute, categorically held “merely because petitioner is a lady does not mean she cannot travel” and the transfer petition was dismissed.

4. Men who have kids custody with them can rely on Jaishree Banarjee v. Abhirup Banarjee (1997) 11 SCC 107 to get proceedings transferred in their favour.

5. Men can take the courts to the merits of the case and show the false case already filed by the wife and the courts are bound to consider the same while deciding the transfer petitions.

Advocate Kapil Chandna 

Practicing in Supreme Court of India

Advocate.kapilc@gmail.com