Filing a Transfer Petition to the Supreme Court for Divorce Completion: An Educational Guide

Filing a Transfer Petition to the Supreme Court for Divorce Completion: An Educational Guide

Sometimes, when divorce proceedings are pending in a Family Court or lower court in one state, a party—such as an NRI or a spouse residing elsewhere—may find it inconvenient, unsafe, or otherwise difficult to effectively participate in those proceedings.

To address this, they can file a transfer petition under Section 25 of the Civil Procedure Code (CPC) before the Supreme Court of India, seeking the transfer of the divorce case to a more convenient or appropriate court, including transfer to the Supreme Court itself.

Marriage under Hindu Marriage Act: Solemnisation and Validity

• Section 7 of the Hindu Marriage Act defines marriage as a sacrament to be solemnised according to customary rites, including saptapadi (seven steps), where applicable.

• A valid marriage must be solemnised properly; mere registration under Section 8 without compliance to Section 7 rites does not confer legitimacy.

• Marriage is recognized not only as a legal tie but also a social and spiritual bond with commitments to fraternity, equality, and lifelong friendship.

• Understanding this sanctity helps parties appreciate the seriousness of breaking marital bonds and can support mediation efforts before or during transfer or divorce proceedings.

Grounds to File Transfer Petition for Divorce in Supreme Court

• The aggrieved party may file a transfer petition under Section 25 CPC read with Order XLI of the Supreme Court Rules, 2013 asking to transfer the divorce petition pending in one Family Court to another court or to the Supreme Court.

• Common grounds include:

  • Hardship or harassment in attending court in the original jurisdiction.

  • Threat to safety or security.

  • Desire to consolidate related proceedings ongoing in a different forum.

  • Residence or domicile change, making litigating in original court impractical.

Procedure for Filing Transfer Petition in Supreme Court

1. Engage Advocate-on-Record (AOR): Only an AOR can file petitions in the Supreme Court.

2. Drafting the Petition: State the parties’ details, court and case information, reasons for transfer, and supporting facts (e.g., safety concerns, residence).

3. Affidavit: An affidavit verifying the facts and grounds must accompany the petition.

4. Supporting Documents: Include copies of pending divorce petition, court orders, proof of residence, identity documents, and any affidavit of hardship.

5. Filing and Fee: File the petition along with court fees at the Supreme Court registry or via e-filing portal.

6. Scrutiny and Correction: The registry examines for defects; if any, a time-frame is given to remove them.

7. Listing and Hearing: The matter is listed before a bench, notices issued to the other party who may file counter-affidavit.

8. Interim Relief: Petitioner may seek interim stay of lower court proceedings during pendency of the petition.

9. Final Order: If satisfied, the Supreme Court can order transfer of the divorce proceedings to the requested court or may hear and dispose the divorce case itself using powers under Article 142(1).

Supreme Court’s Role in Divorce Transfer and Completion

• The Supreme Court can, in the spirit of doing complete justice, take control of the matrimonial dispute once the transfer petition is allowed.

• It can exercise its power under Article 142(1) of the Constitution to grant divorce on the ground of irretrievable breakdown, even if that ground is absent under the Hindu Marriage Act.

• The Court balances equities including custody of children, fair alimony, and welfare of spouses.

• It can finalize and pass binding orders, providing closure and avoiding prolonged fragmentation over multiple courts.

Benefits of Filing Transfer Petition for NRIs or Parties Living Apart

• Avoids hardship in frequent and long-distance court appearances.

• Prevents harassment or bias in original jurisdiction.

• Consolidates matrimonial disputes in a convenient jurisdiction.

• Enables faster disposal through Supreme Court’s power to do complete justice.

• Legal support for child custody, visitation, support, and alimony arrangements within one comprehensive order.

Summary: Documents Required for Transfer Petition

• Copy of original divorce petition/case papers.

• Court notices/orders under which transfer is sought.

• Affidavit establishing grounds for transfer.

• Proof of residence/circumstances causing inconvenience.

• Vakalatnama (Power of Attorney for lawyer).

• Any other pertinent documents recommended by counsel.

Notes

Filing a transfer petition for divorce proceedings before the Supreme Court can be a powerful option for NRIs and others facing jurisdictional or procedural difficulties in matrimonial disputes across states.

Leveraging the Court’s wide jurisdictional powers including Article 142(1), divorce matters can be consolidated and resolved with due regard to fairness, welfare, and justice.

Legal Light Consulting – LLC Lawyer advises clients on drafting, filing, and pursuing transfer petitions and divorce cases before the Supreme Court, ensuring strategic handling and comprehensive relief.

Disclaimer: This article is for educational purposes only and does not constitute legal advice. For personalised legal assistance, please consult Legal Light Consulting – LLC Lawyer.