This post focuses on transfer petitions under sections 24 and 25 of the Code of Civil Procedure, 1908 (‘CPC’) which essentially help the litigants to have a better and fair access to justice. These are often applied for in matrimonial matters.
Breaking down the provisions
Section 24 of the CPC vests the general power of transfer and withdrawal with the District Court as well as the High Court. Interestingly, the stage (whether it is a pending suit or an appeal) at which an application is presented to the respective Court, is immaterial i.e. the parties may apply to the District/High Court at ‘any stage’. Clause (a) to sub-section (1) of section 24 gives power to the District/High Court to transfer ‘any proceeding’ pending before it to a subordinate court of a competent jurisdiction; clause (b) of the same vests with the District/High Court the power to withdraw/re-transfer the said proceeding. Here, both the transferee court and the court before which the suit or the other proceeding is pending must be ‘competent’ to try it. Competency includes both pecuniary and territorial jurisdiction.
Section 25 of the CPC was substituted by the amendment of 1976. The present section thus, gives power to the Supreme Court to transfer any ‘suit, appeal, or other proceedings’ from one High Court or other civil court in one State to a High Court or other civil court in any other State. The only caveat is that the application is to be accompanied with an affidavit and the other party is to be given a notice to this effect. Clearly, the section gives wide powers to the Supreme Court to meet the ends of justice - for this reason, if an application is found frivolous or vexatious, the Court may order the applicant to pay a compensation (not exceeding two thousand rupees).
Forum Conveniens
The said provisions are based on the 'Doctrine of Forum Conveniens' which means ‘the best or appropriate forum' where a fair trial can be held. It should be a jurisdiction for which both the parties have agreed without incurring any loss and where none of the parties are under an apprehension that justice may be denied. The burden is on the person seeking such transfer, to prove that he/she would suffer irreparable injustice including personal loss if the proceedings are not transferred. Further, it is also to be proven that he/she won't suffer similar losses if the proceedings are transferred. The convenience of other parties and expenses to be incurred by them are also considered while ordering the transfer. The fact that several proceedings in a suit have already taken place and that the application of transfer was filed at a later stage have to weigh with the court for declining transfer.[1]
The Supreme Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh v. Kandi Friends Education Trust and others [2] observed that the discretionary power of court under Sections 24 and 25 of the code cannot be restricted to a formula applicable in all situations - the judicial pronouncements over the time have laid down certain propositions that may constitute a ground for transfer:
“They are a balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved; issues raised by the parties; reasonable apprehension of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of the public interested in the litigation; interest of justice demanding for transfer of suit, appeal or other proceedings, etc.” [3]
However, these are not exhaustive in nature.
Transfer by the High Court within the State
Transfers under Section 24 cannot be granted if there is no convenience of the parties however, in most of the matrimonial suits courts have been granting transfer considering the convenience of the wife. The Himachal Pradesh High Court in Monika Sharma v. Manish Kumar[4] and Dharmi Devi v. Manohar Lal[5] transferred the divorce petition to the place favorable to the wife and also held that it is the wife’s convenience which must be looked into in matrimonial proceedings. In Smt. Julie Rajbankhi v. Sri Indrajit Saikia[6], the Guwahati High Court granted transfer to the wife on the basis that she was dependent on her parents and there was no one to escort her.
However, it is not necessarily followed in every case. In the case of Sanchayita Deb (Guha) v. Susanta Deb[7], the wife was dependent on her parents with no independent income and was also not receiving any maintenance. The Calcutta High Court ruled that inconvenience of the wife to attend Court proceedings should be treated as the prime consideration in a proceeding under Section 24 of the Code of Civil Procedure arising out of a matrimonial suit. Whereas in Dipika Agarwal v. Rishi Agarwal[8] the wife had filed a frivolous petition stating the same grounds as above. It was held by the same court itself that the mere inconvenience of a wife to attend the Court is not a ground to transfer a matrimonial suit.
Transfer by the Supreme Court from Court situated in one state to a court situated in another state
Section 25 has largely been invoked in family matters and usually by women for transfer of their matrimonial matters. The discretionary power is exercised based on the merits of the case, issues raised, and balancing the convenience of both the parties. However, the court has been sensitive towards the issues of the women and has granted transfer in their favor.
Some common grounds where transfers have been granted to the wife include:
(1) child is young[9] and unable to travel,[10]
(2) incapable to bear the expenses of travel as she is not earning,[11]
(3) threat to life at Husband’s place,[12]
(4) uneducated, not earning and dependent on parents,[13]
(5) inconvenient to travel long distances.[14]
In addition to this, the Supreme Court in Sumita Singh v. Kumar Sanjay and another[15] held that in matrimonial proceedings, it is the wife’s convenience that must be addressed.[16] In a case where it was inconvenient for both the parties and the husband had proposed to bear the travel expenses of the wife, the court held that the convenience of the wife is to be preferred over the convenience of the husband in such matters.[17]
However, the Court in Kalpana Devi Prakash Thakar v. Devi Prakash Thakar[18] dismissed the transfer as it was inconvenient for the husband with an ailing mother and that the wife had relatives in Mumbai to stay during proceedings. He was also ready to pay for expenses during her traveling. In Jyoti v. Anuj Chaturvedi,[19] the Supreme Court observed while dismissing the petition that with the advancement of transportation women can travel to places in modern times.
In several cases, the transfer petition has been dismissed where the wife contended on grounds such as ill-health, difficulty in traveling, and inability to bear the expenses. The Supreme Court in such cases has either accepted the offer of the husband or directed him to pay for the expenses of the wife.[20] In the landmark judgement of Anindita Das v. Srijit Das,[21] the Supreme Court dismissed the wife's petition by accepting the husband’s offer to bear the expenses for the wife’s travel and held that the grandparents were available to look after the six-year old child. It also opined that the court has shown leniency to ladies which is being misused, as a large number of transfer petitions are being filed by women taking advantage of the same. That the courts must consider the matter on merit.[22]
The provisions under section 24 and 25 render discretionary power upon the courts to transfer the matters in the interest of justice. This power is not demarcated in terms of grounds based on which the courts have to adjudicate. As earlier the wife was easily granted transfer but now, courts are ensuring that such provisions are not wantonly being used to harass the other party. In Anindita Das Case,[23] the Supreme Court mentioned that petitions where the wife has been earlier granted transfer are not to be treated as precedent.
Therefore, the courts have addressed that such matters must be considered on its merit as every case differs in facts and circumstances. That such transfers must be granted by examining all the facts involved and mere inconvenience of a party cannot be a ground for transfer.
Endnotes
[1] Usha George v. Koshy George, (2000) 10 SCC 95; N.K. Nair & Anr. v. Kavanugalaanattu Radhika, (2005) 13 SCC 439
[2] AIR 2008 SC 1333
[3] Id., Para 14
[4] Monika Sharma v. Manish Kumar, CMPMO No.: 112 of 2018, Himachal Pradesh High Court
[6] Tr.P.(C) No. 47/2017, Guwahati High Court
[7] CO No. 3963 of 2018 With CO No.3964 of 2018, Calcutta High Court
[8] C.O. No. 622 of 2019 With C.O. No. 1094 of 2019, Calcutta High Court
[9] Jaishree Banerjee v. Abhirup Banerjee, (1997) 11 SCC 107; Vandana Sharma v. Rakesh Kumar Sharma, T.P. (Civil) No.921 Of 2006, Supreme Court of India; Rachna Kanodia v. Anuk Kanodia, 2001 (7) SC 96
[10] Archana Rastogi v. Rakesh Rastogi, 2000 (10) SCC 350, Neetu Badarya v. Prashant Kumar Badrya, T.P.No.280 of 2018, Supreme Court of India
[11] Deepa v. Anil Panicker, T.P. (Civil) No. 871 Of 1999, Supreme Court of India; Anjali Ashok Sadhwani v. Ashok Kishinchand Sadhwani, AIR 2009 SC 1374
[12] S. Durga Prasad v. S. Raja Ramani @ Arumilli Roja, 2003 (2) ALD 580
[13] Mona Aresh Goel v. Aresh Satya Goel, (2000) 9 SCC 255; Madhu Saxena v.. Pankaj Saxena, (2005) 13 SCC 158
[14] Soma Choudhury v. Gourab Choudhaury, (2004) 13 SCC 462, Anju Ohri v. Varinder Ohri, (2007) 15 SCC 556; Sumita Singh v. Kumar Sanjay And Anr., AIR 2002 SC 396; Lalita A. Ranga v. Ajay Champalal Ranga, (2000) 9 SCC 355
[15] AIR 2002 SC 396
[16] Smt. Neeraja Gupta v. Dr. Rajesh Gupta : 2002(1) HLR 273
[17] Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi, 2005 (12) SCC 237
[18] (1996) 11 SCC 96
[19] T.P. (Civil) No. 1392 of 2014. Supreme Court of India
[20] Teena Chhabra v. Manish Chhabra, (2004) 13 SCC 411; Kanagalakshmi v. A.Venkatesan, (2004) 13 SCC 405; Priyanka Batra v. Manish Batra, (2005) 12 SCC 236; Kakali Pal v. Balai Chandra Pal (2005) 12 SCC 216; Anuradha Dutta v. Subash Chandra Dutta, (2004) 13 SCC 694; Sarita Singh Alias Babli Baghel v. A.P. Baghel, (2005) 12 SCC 376; Kamudi Aurora v. Surinder Pal Singh Aurora, (2004) 13 SCC 634; Gargi Konar v. Jagjeet Singh, (2005) 11 SCC 446; Meenakshi v. Mukesh Kumar, (2004) 13 SCC 497
[21] (2006) 9 SCC 197
[22] ibid
[23] Supra note 21
This post was authored by Abhinav Goyal, Meghna Nimbekar and Devyani Singh.