This is extremely common. One spouse files where it suits them, and the other faces travelling across the country for every hearing. The law does provide a remedy.
Which court to approach
- Between two states: a transfer petition under Section 25 of the Code of Civil Procedure, 1908 before the Supreme Court.
- Within the same state: an application under Section 24 CPC before the High Court, or the district court where appropriate.
- For criminal proceedings such as a Section 85 BNS case, the corresponding provisions of the BNSS apply. Those are Section 446 of the Bharatiya Nagarik Suraksha Sanhita, 2023, under which the Supreme Court may transfer a case or appeal from a criminal court subordinate to one High Court to a criminal court subordinate to another where it is expedient for the ends of justice, and Section 447, under which a High Court may transfer a case within its own state where a fair trial cannot be had, where a difficult question of law arises, or where a transfer would tend to the general convenience of the parties or witnesses.
The civil provision is worth reading closely, because its language is what the petition has to satisfy. Section 25 allows the Supreme Court, on the application of a party and after notice, to direct at any stage that a suit, appeal or other proceeding be transferred from a High Court or other civil court in one State to a High Court or other civil court in any other State, if satisfied that the order is expedient for the ends of justice. The application is made by motion supported by an affidavit, and where the Court dismisses an application it considers frivolous or vexatious it may order the applicant to compensate the party who opposed it. Section 24, by contrast, is the workhorse within a state: it lets the High Court or the District Court transfer or withdraw a suit, appeal or other proceeding at any stage, either on application or of its own motion. In Karnataka that means the High Court of Karnataka, sitting at Bengaluru, Dharwad or Kalaburagi.
What the petition contains
- The cause title of every proceeding you want moved, with the case number, the court and the next date
- A list of dates that shows how the proceedings came to be spread across two places
- An affidavit pleading the hardship specifically: the distance in kilometres, the cost and mode of each journey, who accompanies you, the age of the child, your employment and leave position, and any medical condition, with documents
- Copies of the petitions or complaints in the proceedings sought to be transferred
- Vakalatnama and court fee
Expect notice to issue to the respondent, and expect the Supreme Court to consider a reference to mediation before it considers moving anything. Interim stay of the proceedings sought to be transferred is commonly asked for and is sometimes granted. How the receiving court will then run the matter, from filing through evidence to judgment, is set out in the guide on family court procedure in India, which is worth reading whichever way the transfer petition goes.
- The distance, and the actual journey involved including connections and overnight travel
- A young child in your care, with the birth certificate
- Medical condition affecting travel, with the treating doctor's record
- No independent income, with proof, where the cost of travel is the obstacle
- Threat to safety, with the FIR or complaint if one exists
- The list of dates showing hearings actually attended, which answers the delay argument
- A specific proposed transferee court, not a general prayer
What persuades the court
The test is the convenience of the parties and the interests of justice. In matrimonial matters courts have consistently given weight to the difficulty faced by a wife travelling long distances, particularly where she has a young child, has no independent income, or has health or safety concerns. Those are the grounds that succeed most often. A husband's transfer petition is not impossible, but it needs a stronger showing of genuine hardship.
Courts now frequently respond to a transfer petition by directing that the parties may appear by video conferencing, or by directing mediation, rather than moving the case. In Krishna Veni Nagam the Supreme Court encouraged this approach, though Santhini v. Vijaya Venketesh (2018) later restricted the use of video conferencing in family court proceedings, particularly at the settlement stage. Expect the court to explore this before ordering a transfer.
Practical points
- File early. Once evidence has begun in the original court, transfer becomes harder to justify.
- Plead the hardship specifically: distance, cost, dependants, employment, medical condition. Generalities do not carry it.
- Where several proceedings are running in different places, ask for them to be consolidated, which is often more valuable than moving any single one.
- Free legal aid is available for transfer petitions in the Supreme Court through the Supreme Court Legal Services Committee.