Transfer Petition

A transfer petition is a formal legal application filed before the Supreme Court of India requesting the transfer of a pending matrimonial case — such as a divorce petition, maintenance application, child custody proceeding, or restitution of conjugal rights matter — from the court of one state to a court in another state.

Key distinction: A transfer petition is only needed when the two courts are in different states. If both courts are within the same state, your remedy is to approach the concerned High Court under Section 24 CPC or Section 447 BNSS, not the Supreme Court.

In practical terms, transfer petitions arise most commonly when a wife has moved to her parents’ home in a different state after separation, but the husband has already filed his divorce petition in the court of his own city. Or when a husband is being pulled across the country to attend hearings in a case filed by his wife in a state where he has no connection.

After Special Leave Petitions (SLPs), transfer petitions are one of the most filed matters in the Supreme Court. In 2024 alone, over 3,000 transfer petitions were filed, with matrimonial disputes making up nearly 70% of them.

Both spouses have an equal right to file a transfer petition. The widespread perception that only wives can file, or that the Supreme Court always favours the wife, is legally incorrect — and recent judgments have firmly reaffirmed this.

In Rohit Kapoor v. Ketaki Malhotra (Transfer Petition (C) Nos. 2674–2675 of 2025, decided 19 December 2025), a Division Bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh allowed a husband’s transfer petition. The Court examined the husband’s location (Noida), the wife’s location (Gurugram), and the existence of a connected case already pending at Gurugram. Finding that the balance of convenience favoured Gurugram, it stated clearly: “On such consideration, we are of the view that the transfer can be allowed.” This judgment decisively reinforces that matrimonial justice must be gender-neutral, practical, and focused on the ends of justice for both parties.

Practical takeaway: Whether you are the husband or the wife, you can file a transfer petition. What matters is demonstrating genuine, material inconvenience — not your gender.

The power of the Supreme Court to transfer cases flows from three sources:

1. Section 25, Code of Civil Procedure, 1908

Primary provision for all civil matrimonial cases — divorce, maintenance, custody, RCR. Empowers the Supreme Court to transfer a suit from any court in one state to any court in another state, on its own motion or on application.

2. Section 446, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

Governs criminal case transfers — applicable in 498A IPC/BNS cases, Domestic Violence (DV Act) criminal proceedings, and dowry cases. This replaced the old Section 406 CrPC when the BNSS came into force. The core legal principles remain continuous, but the BNSS’s emphasis on technology may gradually influence how courts view video conferencing as an alternative.

3. Article 139A(2), Constitution of India

Used in exceptional cases involving substantial questions of law of general public importance. Rarely invoked in typical matrimonial transfers.

Important update for practitioners: Lawyers and litigants who still cite “Section 406 CrPC” in transfer petitions involving criminal matrimonial cases are citing a repealed provision. The correct citation from 1 July 2024 is Section 446, BNSS 2023. Always update your petitions accordingly.

The Supreme Court does not transfer cases merely on request. You must establish genuine, material grounds. Courts look at these factors carefully:

GROUNDS COURTS ACCEPT

• Wife residing with parents in a different state after separation, with no independent means to travel
• Small children in the wife’s custody — travelling with young children is a demonstrated hardship
• Connected cases (e.g., 498A + divorce) pending in different courts in different states — consolidation for efficient hearing
• Genuine safety concerns — harassment or intimidation making attendance at the original court dangerous
• Medical condition preventing travel, supported by medical records
• Both parties and all witnesses residing in the transferee court’s location
• Balance of convenience clearly favouring the new location (as in Rohit Kapoor v. Ketaki Malhotra)

GROUNDS COURTS REJECT

• General inconvenience of travel without specific hardship being demonstrated
• Financial incapacity alone — courts typically direct the other party to pay travel expenses instead
• Being a woman, by itself, is not a ground (Gargi Konar v. Jagjeet Singh)
• Territorial jurisdiction disputes — lack of jurisdiction must be raised before the original court
• Transfer filed as a delay tactic after multiple hearings at the original court
• When video conferencing can adequately meet the petitioner’s needs
• Canadian/foreign residency + international travel capacity (Delma Lubna Coelho case)

One of the most important things to understand — whether you are filing or opposing a transfer petition — is that the Supreme Court takes a fact-specific approach. The burden of proof lies on the petitioner to demonstrate that transfer is genuinely necessary.

Gargi Konar v. Jagjeet Singh

(2005) 11 SCC 446

The wife sought transfer of a matrimonial suit from Bhatinda, Punjab to Burdwan, West Bengal, citing that she was a helpless woman dependent on her father with limited finances. The Supreme Court rejected this as insufficient ground for transfer. Instead, it directed the husband to pay for her travel and stay expenses for every hearing — demonstrating that the Court prefers practical solutions over automatic transfer.

Delma Lubna Coelho v. Edmond Clint Fernandes

2023, Supreme Court

The wife held Canadian permanent residency, had the financial ability to travel internationally, and had participated in mediations virtually from Canada. The Court held that no undue hardship was established and declined to transfer the case. The judgment clearly established that leniency towards women is not blanket — it must be merit-based to prevent misuse.

Transfer petitions are governed by Orders XL and XLI of the Supreme Court Rules, 2013. Here is the complete practical procedure:

1. Engage an Advocate

Only an AOR (Advocate on Record) can file and argue a matter before the Supreme Court. You, as a non-AOR advocate, draft the petition and handle all client communication, but the filing must be done through an enrolled AOR. Establish this relationship first.

2. Draft the Transfer Petition

The petition must include:

(a) a Synopsis stating the main contentions and legal provisions,

(b) a List of Dates/Events in chronological order,

(c) the Transfer Petition itself with a prayer clause, and

(d) a supporting Affidavit sworn by the petitioner.

The synopsis is the first thing a judge reads — treat it as your elevator pitch. Be clear, concise, and state the grounds precisely.

3. Filing and Defect Removal

The AOR files the petition at the Supreme Court Registry. The Registry may raise defects (objections about incomplete documents or procedural errors). These must be cured within the prescribed time. Once defects are cleared, the matter gets a case number — T.P.(C) No. …/2026 for civil matters, or T.P.(Crl.) for criminal.

4. Preliminary (Ex-Parte) Hearing

The matter is listed before a bench for an initial ex-parte hearing (i.e., without the respondent being present, unless a caveat has been filed). At this stage, the Court either: issues notice to the respondent and may grant a stay of the original court proceedings, OR dismisses the petition if it lacks merit on the face of it.

5. Notice, Reply, and Hearing

Upon issuance of notice, process fee is filed by the AOR. Notice is sent by the Supreme Court Registry to the respondent. The respondent engages their own AOR, appears, and files a reply affidavit. After exchange of affidavits, the matter is listed for final hearing. Both parties argue; the Court may also direct mediation at this stage.

6. Order and Compliance

The Court passes its final order — either allowing or dismissing the transfer petition. If allowed, a certified copy of the order is obtained and filed before both the original court (for closure) and the transferee court (for commencement). The original court sends the complete record to the transferee court.

MANDATORY

• Written petition with synopsis and list of dates
• Affidavit sworn and notarised by the petitioner
• Certified copy of the case currently pending (plaint/complaint + orders)
• Proof of petitioner’s current address (Aadhaar, utility bill, or rent agreement)

IF APPLICABLE

• Medical records supporting health-based hardship
• Children’s school records / custody order if child welfare is a ground
• Documents showing connected cases pending in another court

ADVISORY

• Vakalatnama authorising the AOR to appear and act

Week 1–3

Drafting, filing, defect removal, and case number assignment

Week 2–6

Preliminary hearing — notice issued; interim stay of original court proceedings (if granted)

Month 2–4

Service of notice on respondent; filing of reply affidavit

Month 3–8

Mediation referral (optional); final arguments; order passed

After Order

Certified copy obtained; record transmitted to transferee court; matter resumes

Uncontested petitions: If the respondent does not appear or does not oppose, the Court can pass an order as early as 2–6 weeks from the date of preliminary hearing.

These are the cases you must know — and cite — in any transfer petition matter:

Rohit Kapoor v. Ketaki Malhotra

T.P.(C) Nos. 2674–2675 of 2025 | Decided: 19 December 2025 | Bench: Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh

The husband sought transfer of two divorce cases from Bhiwadi, Rajasthan to Gurugram, Haryana. The Supreme Court allowed the petition after noting:

(a) the husband resided at Noida,

(b) the wife resided at Gurugram, and

(c) a connected case was already pending at Gurugram.

The Court held that transfer of matrimonial proceedings is not automatic in favour of one party and must be decided on practical considerations of convenience, location, and connected cases. This is currently the strongest citation for husbands seeking transfer.

Rinku Baheti v. Sandesh Sharda

2024 INSC 1014 | Decided: 19 December 2024

A landmark case illustrating how the Supreme Court can use Article 142 of the Constitution (extraordinary powers to do complete justice) within transfer petition proceedings to dissolve the marriage itself, not just transfer the case. This shows that a transfer petition, in the right factual matrix, can become a vehicle for complete final relief including dissolution of marriage and quashing of connected criminal cases.

Santhani v. Vijaya Venkatesh

Supreme Court — Majority Judgment on Video Conferencing in Transfer Petitions

The majority held that the statutory right of a woman in a matrimonial dispute cannot be nullified by directing her to attend through video conferencing. Matrimonial proceedings require reconciliation efforts, sensitivity, and the “touch and feel” of the physical courtroom. A transfer cannot be denied solely on the ground that VC is technically available. However, post-2024, courts are increasingly using VC for interim stages where the transfer petition appears to be a delay tactic.

M/s Shri Sendhur Agro & Oil Industries v. Kotak Mahindra Bank Ltd.

2025 INSC 328

The Supreme Court clarified that the transition from Section 406 CrPC to Section 446 BNSS represents continuity rather than change. All precedents established under Section 406 CrPC continue to apply under Section 446 BNSS. This is the citation to use when opposing any argument that prior CrPC case law is no longer binding

This is one of the most contested and evolving areas in transfer petition law. Here is where the law stands in 2026:

The Santhini principle remains the law: a transfer petition cannot be rejected merely because video conferencing is available. The physical right to attend court — especially in sensitive matrimonial reconciliation proceedings — is protected. However, courts are exercising pragmatism in 2024–25 by offering VC for interim hearings and mentioning stages, while the main petition remains pending.

The practical consequence: if you are opposing a transfer petition, you may argue that VC adequately addresses the petitioner’s concern for interim/routine hearings — but this argument will rarely succeed at the final stage if the petitioner can demonstrate genuine, substantive hardship in physical attendance.

Most guides stop at “the petition was allowed.” But your client needs to know what happens next — and so do you, as their lawyer.

1. Obtain certified copy of the transfer order

File an application in the Supreme Court Registry for a certified copy of the order. This is your execution document.

2. File before the original court for closure

Appear before the court from which the case is being transferred. Produce the certified copy. That court records the order and sends the entire case record (pleadings, documents, orders) to the transferee court.

3. Appear before the transferee court

Once records are received, the transferee court assigns a new case number. You appear and take the next date. The case proceeds from the exact stage at which it was in the original court — no fresh filing, no de-novo start.

4. Recall application (for respondent)

If the transfer order was passed without the respondent being properly served (ex-parte), the respondent can file a recall application before the Supreme Court within 30 days of learning about the order, demonstrating that service was defective.

1. Can a husband file a transfer petition, or is it only for wives?

Yes. Both husband and wife can file a transfer petition. The Supreme Court is concerned with genuine hardship, convenience, and the ends of justice, not gender alone.

2. Is a stay of original court proceedings automatic when a transfer petition is filed?

No. A stay is not automatic. It must either be specifically sought or granted by the Court depending on the facts and urgency of the matter.

3. What is the difference between a transfer petition in the Supreme Court and a transfer application in the High Court?

If the transfer sought is from one state to another, the remedy lies before the Supreme Court under Section 25 CPC. If the transfer is sought within the same state, the concerned High Court can be approached under Section 24 CPC.

4. Can a transfer petition be filed for a 498A or Domestic Violence case?

Yes. Criminal matrimonial matters can be transferred under Section 446 BNSS, which has replaced the earlier Section 406 CrPC.

5. How much does it cost to file a transfer petition in the Supreme Court?

The expense depends upon the Advocate-on-Record, drafting counsel, court fee, filing expenses, and other professional charges. Costs vary from case to case.

6. My case was transferred to a new court. Does the case start fresh?

No. The case proceeds from the same stage at which it was pending before the original court.

7. Can the Supreme Court grant a divorce itself while hearing a transfer petition?

In exceptional cases, yes. By invoking Article 142 of the Constitution, the Supreme Court can grant complete relief, including dissolution of marriage.