Matrimonial disputes often unfold in two cities at once: the husband files for divorce where he lives, the wife initiates maintenance proceedings where she has moved with the children. The law does not compel a party to litigate in a distant or inconvenient forum without remedy. The Code of Civil Procedure and the Bharatiya Nagarik Suraksha Sanhita both contain transfer provisions under which a pending case can be moved to another court, and matrimonial cases form a large share of the petitions filed under them.
Where a matrimonial petition can be filed in the first place
Transfer questions begin with jurisdiction. Section 19 of the Hindu Marriage Act, 1955 allows a petition for divorce, judicial separation or nullity to be presented in the district court within whose local limits the marriage was solemnised; where the respondent resides at the time of presentation; where the parties last resided together; where the petitioner resides, if the respondent at that time resides outside India or has not been heard of as alive for seven years; and, where the petitioner is the wife, where she is residing on the date of presentation. Parallel venue provisions exist in the other personal law statutes, such as the Special Marriage Act, giving a petitioner a genuine choice of forum.
In Delhi, the Family Courts Act, 1984 channels these petitions to the Family Courts established for each district, according to the district within whose territorial limits the relevant venue falls; within a district, allocation of work among the Family Court judges is an administrative matter handled by the Principal Judge.
Transfers within Delhi: Section 24 CPC
Where a case is pending before a Family Court in one district of Delhi and a party seeks its transfer to a Family Court in another district, the remedy is a transfer petition before the Delhi High Court under Section 24 of the Code of Civil Procedure. Section 24 confers a general power on the High Court to transfer any suit, appeal or other proceeding pending in a court subordinate to it, on the application of a party after notice or on its own motion. It is routinely invoked where a wife residing in one part of Delhi finds it difficult to attend a Family Court at the other end of the city, or where connected cases between the same spouses are pending in two districts and consolidation is sought. Movement between courts within the same district is ordinarily a matter of administrative allocation rather than a judicial transfer petition.
Transfers between States
Where the two proceedings, or the two parties, are in different States, only the Supreme Court can transfer a civil case from a court in one State to a court in another. Section 25 of the CPC empowers the Supreme Court to direct such a transfer where it is satisfied that it is expedient for the ends of justice. The application is made by a Transfer Petition (Civil), and matrimonial cases account for a substantial proportion of these petitions, typically a wife seeking transfer of the husband's divorce petition to the city where she resides.
Criminal proceedings follow a separate track. For inter-State transfer of a criminal case, including a complaint case, the power lies with the Supreme Court under Section 446 of the BNSS, corresponding to Section 406 of the CrPC, invoked by a Transfer Petition (Criminal). Within a State, the High Court can transfer criminal cases between courts subordinate to it under Section 447 of the BNSS, corresponding to Section 407 of the CrPC.
| Situation | Forum | Provision |
|---|---|---|
| Family Court of one Delhi district to another (civil) | Delhi High Court | Section 24 CPC |
| Civil or matrimonial case from one State to another | Supreme Court | Section 25 CPC |
| Criminal case within a State | High Court | Section 447 BNSS (Section 407 CrPC) |
| Criminal case from one State to another | Supreme Court | Section 446 BNSS (Section 406 CrPC) |
The grounds courts actually weigh
Transfer is a discretionary remedy, exercised on the ends of justice and not on the mere preference of a party. In matrimonial matters, the convenience of the wife is given considerable weight as a matter of settled practice, especially where she has no independent income, has an infant or young child in her care, or would have to undertake long and unsafe journeys to contest the case. Other recognised considerations are the convenience of the witnesses, and the pendency of connected cases between the same parties, since consolidating the divorce, maintenance, custody and allied proceedings before one court avoids conflicting findings and multiplied appearances. An apprehension that the local court is biased or that the other side is influential must rest on concrete material placed on record; a bare assertion of unease is not a ground.
Video-conferencing has changed the calculus. Courts increasingly treat appearance by VC as an alternative to transfer, and this cuts both ways: a petitioner who pleads only distance may be answered with a direction permitting appearance, and even recording of evidence, by VC, while a respondent resisting transfer may offer VC facilities to blunt the hardship argument. A petition should therefore explain why VC would not adequately meet the difficulty.
Procedure and interim protection
1. Petition with affidavit
A transfer petition before the Supreme Court is filed with a supporting affidavit setting out the pending case, the parties' circumstances and the specific grounds of hardship, with copies of the relevant pleadings annexed.
2. Notice and interim stay
Notice issues to the respondent. A stay of the trial court proceedings is discretionary; it must be expressly sought, and until granted the case below continues.
3. Hearing and disposal
The Court may allow the transfer, dismiss the petition, or fashion a middle course, such as permitting appearance by video-conferencing or directing the petitioner in the main case to bear the travel and stay costs of the other spouse for each hearing instead of transferring the case.
What to put in a transfer petition, and what the other side argues
A persuasive petition is specific. It should state the distance and travel time between the two stations, the available modes of travel, the dates already consumed in the pending case, the petitioner's income or the absence of it, the dependants in her care with their ages, any medical condition, and any incident bearing on safety, each supported by the affidavit. Vague pleas of inconvenience carry little weight. Respondents typically answer that the case is at an advanced stage, that they too have dependants or health constraints, that VC appearance is available, or that travel costs can compensate the hardship. Anticipating these points in the petition itself is sound drafting.
A closing word
The transfer jurisdiction exists to ensure that the forum of a matrimonial dispute does not itself become an instrument of attrition. It is neither a routine indulgence nor an unattainable one: courts grant transfers where genuine, documented hardship is shown and refuse them where the plea is tactical. A party considering the remedy should assemble the factual record of hardship early, remembering that the pending case does not pause merely because a transfer petition has been filed.
Frequently Asked Questions
Do proceedings in the trial court stop automatically when a transfer petition is filed?
No. Filing a transfer petition does not by itself halt the pending case. A stay of the trial court proceedings must be specifically sought and granted, whether by the Supreme Court or the High Court. Until an order of stay is passed, the trial court is entitled to proceed, and a party who ignores its dates does so at their own risk.
Can a maintenance case under Section 144 BNSS be transferred by the Supreme Court under Section 25 CPC?
Section 25 CPC applies to civil proceedings, and a transfer petition on the civil side is the usual route for divorce and allied family court proceedings. Criminal proceedings, including complaint cases, are transferred between States under Section 446 of the BNSS, corresponding to Section 406 of the CrPC, and within a State by the High Court under Section 447 BNSS.
Is the convenience of the wife always decisive?
It carries considerable weight as a matter of settled practice, particularly where the wife has no independent income, is caring for a young child, or faces genuine distance and safety difficulties. It is not an automatic rule. Courts weigh it against the availability of video-conferencing, the stage of the trial and the hardship pleaded by the other side.
Can two Family Courts in different districts of Delhi both keep hearing cases between the same spouses?
They can, but where connected cases between the same parties are pending in different districts, either party may move the Delhi High Court under Section 24 CPC seeking consolidation before one Family Court, so that a single judge deals with the divorce, maintenance, custody and connected proceedings together.