To move a matrimonial case to another court you file a transfer application, usually through the divorce lawyer who already knows the record of the case - before the High Court under its power to transfer civil proceedings, or, where the case is a maintenance proceeding, before the court exercising the corresponding criminal transfer power. The application is supported by an affidavit that sets out the grounds: convenience, hardship, safety or the fact that a related proceeding is already pending elsewhere. Notice goes to the other side, the transfer is usually not automatic, and an interim stay of the proceedings below may be sought so nothing moves while the application is decided.
Before you start
- Know which court passed the case and its stage. Whether evidence has begun, and how far the trial has gone, affects both the ground and the outcome.
- Know whether the case is civil or criminal in nature. A divorce, judicial separation or a maintenance claim under the Hindu Marriage Act 1955 is civil. A maintenance application under Section 144 BNSS 2023 (formerly Section 125 CrPC) is a criminal proceeding with its own transfer route.
- The ground in writing. Collect the proof that supports it - medical records, an employment transfer letter, a police complaint, proof of threats, or a copy of the parallel proceeding.
- Copies of the pleadings in the case sought to be transferred, and of the parallel proceeding, if any.
- The correct forum. A transfer within the same state and within the same court's jurisdiction goes one way; a transfer to a court in another state goes to a higher court.
Steps
- 1. Pick the right forum. For a civil matrimonial proceeding, the application goes to the High Court under its general power to transfer proceedings (Section 24 of the Code of Civil Procedure), or to the Supreme Court under Section 25 CPC where the transfer is from a court in one state to a court in another. For a maintenance proceeding under Section 144 BNSS, the application goes to the High Court or the Sessions Court exercising the corresponding transfer power carried into the BNSS (formerly Section 407 CrPC). The same route applies to a maintenance claim that has to move.
- 2. Draft the transfer application. It identifies the case, the court where it is pending, the court to which it should be moved, and the grounds. Every ground must be a fact the affidavit can support, not a general complaint about inconvenience.
- 3. State the grounds courts actually accept. The courts weigh convenience of the parties, genuine hardship - illness, distance, inability to travel - the safety of a party, and the pendency of another proceeding between the same parties or arising from the same marriage in the proposed court. These are the grounds that family law practice treats as decisive. A bare assertion of inconvenience without proof rarely succeeds.
- 4. Support it with an affidavit. The affidavit carries the facts and annexes the documents. A transfer application that is only a narrative without proof is the one most often dismissed.
- 5. Give notice to the other side. Notice of the application goes to the respondent in the pending case. Serving notice properly, and showing proof of service, is part of the process; the other side has the right to oppose.
- 6. Ask for a stay, where needed. Where the case below is about to reach a critical stage, the applicant asks the higher court to stay further proceedings in the lower court until the transfer application is decided. The stay is discretionary.
- 7. Hearing and order. The court hears both sides, examines the grounds and the record, and either allows the transfer, directing the file to move to the named court, or dismisses the application. The reasons are recorded and bind the parties.
- 8. Follow through. Once allowed, the record is transmitted to the transferee court and the case resumes there. The party must keep track that the file has actually been received and a fresh date obtained, because the gap between the order and the first hearing is where cases go quiet.
Documents to keep
- The transfer application and the affidavit with all annexures.
- Proof of service of notice on the other side.
- The order allowing or refusing the transfer.
- Proof of the ground relied on - medical papers, employment order, complaint copy, or the parallel proceeding's pleadings.
- The acknowledgement from the transferee court that the record has been received.
What goes wrong
- Filing the wrong route. A maintenance case under Section 144 BNSS is not transferred by the civil route. Choosing the wrong forum means the application is returned and time is lost.
- Proving nothing. A transfer is not granted on inconvenience alone. Without documents that back the hardship, distance or safety ground, the application fails.
- Letting the case below run on. Where a stay is needed it must be asked for and obtained; otherwise the lower court may finish the matter and the transfer becomes academic.
- Delay in filing. A transfer sought late, after evidence is closed, is harder to justify than one brought at the start.
- The practical cost. A transfer application adds a round of hearings. It can help a party who cannot travel or who fears for safety, but it lengthens the case; weigh that against the reason for moving.
Common questions
Do I file the transfer application in the district court or the High Court?
For a civil matrimonial proceeding it goes to the High Court under Section 24 CPC, or to the Supreme Court under Section 25 CPC for a transfer from one state to another. For a maintenance proceeding under Section 144 BNSS, it goes to the High Court or Sessions Court under the corresponding transfer power.
What grounds will the court accept?
Convenience of the parties, genuine hardship such as illness or distance, the safety of a party, and the pendency of another proceeding between the same parties in the proposed court. Each ground must be supported by proof, not merely asserted.
Does the other party have to be heard?
Yes. Notice goes to the respondent, who has the right to oppose the transfer. The court decides after hearing both sides and recording reasons.
Will the transfer make the case longer?
It adds a stage before the higher court, so it does lengthen the matter. It is worth it where a party cannot travel, is unwell, or faces a safety risk, but it is not a shortcut.
FileX Advocates & Legal Consultants, Kolkata, drafts and files these matters before the Calcutta High Court, City Civil and Sessions courts, magistrate, family, consumer and tribunal forums. Call +91 7439811422 or WhatsApp us for a free first consultation.