Japs Attorney & Consultants

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Karan Bir Singh is Attorney in the Law firm Japs Attorneys & Consultants since January 01, 2005 and is entrusted with Family law, Criminal Law, Civil Law, Trade Mark and Copyright matters as well as also deals in efficient structuring for business ventures, commercial transaction, investment structuring, estate planning, and asset protection, intellectual property rights protection and preparing contracts for business clients. 

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Most men who file matrimonial cases in correct jurisdiction also suffer when the wife approaches High Court or Supreme Court for transfer of the said case to court in whose jurisdiction the wife resides. The same is done u/s 24 of Civil Procedure Code in High Courts and u/s 25 of Civil Procedure Code in Supreme Court.
Mostly courts have taken the convenience of the wife as important consideration while ordering transfer of proceedings and more so when the wife has custody and care of the minor child. This said each case should be decided on its own merits and in many cases, the transfer applications filed by wives has been dismissed too.
Though it seems that the transfer of cases is done in a mechanical manner in favour of wife, it is not always so. In some significant decisions various High Courts and Supreme Court has decried the practise of automatic transfer and has held “The ground that being the lady it is not safe for her to travel in itself is no ground for transfer.” There has to be some substantial other grounds for transfer of cases.

After going through many judgments, I have synthesized the following grounds, which the courts see while deciding transfer applications.

  1. When the wife has custody of child/ren, who is/ are, below a certain age.
  2. When the wife has shown genuine difficulty in travel owing to illness/ work etc.
  3. When the husband also resides in a place other than where matrimonial case is filed. It is not necessary that he should also reside in the same city as wife.
  4. When wife has/ had also filed cases in city where she is seeking transfer and either joint trial or in the same court.
  5. When wife/ husband has shown with cogent evidence that there is a genuine threat at the place where trial is running.
  6. When the husband has himself given no objection to transfer.
See also  Himani Virendra Bajaj Vs. Virendra Bajaj

Besides this it is also seen that whenever courts have rejected the transfer of case, the Supreme Court and most High Courts have asked the husband to bear the expense of travel, lodging and other incidental expenses. So a person, who is trying to fight the transfer petition, shall beyond other points be ready to pay incidental expenses to the wife.

Men may use the following grounds to have the transfer petition decided in their favor:

  1. When the place where the wife has sought custody is not her permanent residence
  2. When wife is living outside India
  3. Where the husband has the custody of kids
  4. When the condition of the husband due so an illness is such that travelling will cause irreparable harm
  5. When the job responsibilities of husband don’t allow him to travel from the workplace

Few Judgments where transfer petition by wife was rejected may be utilized are :

1. Himani Virendra Bajaj vs Virendra Bajaj on 6 October, 2017
2. Anandita Das v. Sirjit Dey
3. Jaishree Banarjee Vs. Abhirup Banarjee
4. Preeti Sharma Vs. Manjit Sharmam

In a significant decision recently the Supreme Court in Krishna Veni Nagam vs. Harsh Nigam [2017 SCC 236] Supreme Court realising the inconvenience and expenses involved in long distance travel and delay in judicial proceedings because of it, held that technological solutions should be used and directed all high courts to pass administrative directions to all district and family courts to open their own video conferencing facilities.

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