Transfer applications are a routine feature of matrimonial and Domestic Violence Act litigation: one side finds the allotted court inconvenient, apprehends prejudice, or simply wants the matter heard elsewhere. But the route to a transfer is as important as the grounds for it. A recent decision of the Uttarakhand High Court in Farman Ilahi v. Ruksaar is a crisp reminder that where both courts fall within the same sessions division, the High Court cannot be approached directly — the application must first be made to, and rejected by, the Sessions Judge.
The application
The applicant-husband sought transfer of Miscellaneous Case No. 3404 of 2024 — a proceeding involving allegations under the Protection of Women from Domestic Violence Act, 2005 — from one court to another within the same judicial division in Uttarakhand. Rather than moving the Sessions Judge, he carried the application directly to the High Court.
What the High Court held
Justice Siddhartha Sah rejected the application as untenable. The Court anchored its reasoning in Section 447(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which provides that no application shall lie to the High Court for transferring a case between criminal courts in the same sessions division unless an application for such transfer has first been made to the Sessions Judge and rejected by him. Since the applicant had bypassed that mandatory first step, the High Court held that it could not entertain the direct request, and left the applicant to pursue his remedy before the appropriate Sessions Court.
Why the sequencing rule exists
The two-tier structure is not an empty formality. The Sessions Judge sits closest to the courts concerned, knows their dockets, distances and local circumstances, and can decide intra-division transfers quickly and cheaply. Reserving the High Court for cases the Sessions Judge has refused filters the volume and ensures the superior court intervenes only where a subordinate forum has already applied its mind. The same architecture existed under Sections 407 and 408 of the CrPC, and the BNSS carries it forward.
Practice pointer: before drafting any transfer application in a matrimonial or DV matter, map the forum ladder. Intra-division transfers go to the Sessions Judge; inter-division or inter-district transfers within a State engage the High Court; and transfers between States lie only with the Supreme Court. Filing one rung too high usually costs months, because the application is returned on maintainability without a word on the merits.
The DV Act context
Proceedings under the DV Act are quasi-criminal in form: they are tried by Magistrates, and Section 28 of the Act applies the Code of Criminal Procedure — now the BNSS — to the proceedings save as otherwise provided. Transfer questions in DV litigation therefore follow the criminal transfer provisions, and parties frequently litigate them, particularly where the aggrieved person has moved residence or where one side alleges local influence. Farman Ilahi does not narrow the grounds on which transfer can be sought; it polices the order in which the forums must be approached.
Takeaways for litigants
For respondents in DV proceedings who find the allotted court genuinely inconvenient, the decision is a procedural map rather than a dead end: the remedy exists, but it begins before the Sessions Judge. For aggrieved persons resisting transfer, the decision supplies a threshold objection worth checking in every case — if the applicant has come straight to the High Court for an intra-division transfer, the application is liable to be rejected without a hearing on the merits. In either direction, the first question is not whether the case should move, but whether the right court has been asked.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
What does Section 447(2) of the BNSS require?
Section 447 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — the successor to Section 408 CrPC read with the scheme of Section 407 — deals with transfer of cases between criminal courts. Where the transfer sought is between criminal courts in the same sessions division, no application lies to the High Court unless an application has first been made to the Sessions Judge and rejected by him. The High Court applied that bar strictly in this case.
Was the merit of the transfer plea examined?
No. The application was rejected as not maintainable at the threshold. Because the applicant had bypassed the Sessions Judge, the High Court held it lacked the jurisdiction to entertain the direct transfer request at all, and therefore did not examine whether the grounds for transfer were good or bad. The applicant remained free to approach the appropriate Sessions Court.
Do Domestic Violence Act cases follow criminal transfer provisions?
Proceedings under the Protection of Women from Domestic Violence Act, 2005 are conducted before Magistrates and are governed, under Section 28 of that Act, by the Code of Criminal Procedure — now the BNSS — save as otherwise provided. Transfer applications relating to such proceedings therefore travel through the criminal transfer machinery, as happened in this case.
What should a party seeking transfer within one district do?
File the transfer application before the Sessions Judge of the division first, setting out the grounds — convenience, apprehension of prejudice, or other sufficient cause. Only if the Sessions Judge rejects that application does the remedy of approaching the High Court open up. Moving the High Court first invites dismissal on maintainability without any examination of the merits.