Need Your Divorce, Maintenance or Criminal Case Moved to Another Court in Delhi? Transfer Petitions Explained

What a transfer petition does and what it cannot do

A transfer petition asks a higher court to take a case away from one court and send it to another court of the same level. It does not decide the case or touch its merits. The divorce, maintenance claim or criminal trial continues in the new court from the stage it had reached, with the same pleadings and evidence already recorded.

Transfer is the exception. Every court has jurisdiction for a reason, usually because one party lives there or the cause of action arose there, and the law starts from the assumption that a case stays where it was properly filed. The party asking for a transfer must show a good reason: real hardship, safety, the need to hear connected cases together, or a reasonable apprehension that justice will not be done.

A transfer petition is also different from a request to change the police agency investigating an FIR. If you want an investigation moved from the local police station to the Crime Branch or the CBI, that is a writ or Section 528 BNSS matter, dealt with on our page on transfer of investigation to the CBI or another agency. This page is about cases already pending before a court.

The provisions that govern transfer of cases

Which court decides your transfer, and why

The answer depends on where the two courts sit. Delhi has eleven judicial districts, each with its own district court complex: Tis Hazari, Saket, Karkardooma, Rohini, Dwarka, Patiala House and Rouse Avenue between them house the district courts and family courts. If both the court where your case is and the court you want it moved to are in the same district, the transfer application goes to the head of that district: the Principal District and Sessions Judge for criminal cases, and the Principal Judge of the family courts or the District Judge for matrimonial and civil cases, depending on the court and the practice there.

If the two courts are in different districts of Delhi, for example a divorce petition at Rohini family court which the wife wants moved to Saket, only the Delhi High Court can transfer it, because only the High Court sits above both districts. The same applies to criminal cases: moving a case from a magistrate's court in Dwarka to one in Karkardooma is a Section 447 BNSS matter for the High Court. Transfer petitions in the High Court are heard by a single judge. The court's official website carries case status and cause lists; this is a private law firm website.

If one court is outside Delhi, whether in Gurugram, Noida or anywhere else, neither the District Judge nor the Delhi High Court has power. The petition lies only to the Supreme Court under Section 25 CPC or Section 446 BNSS; our page on taking a matter to the Supreme Court from Delhi explains how we handle Supreme Court work with Advocates-on-Record.

Matrimonial cases: grounds courts accept

In matrimonial transfers, the courts give considerable weight to the convenience of the wife, particularly where she lives with young children, has no independent income, or would have to travel alone across the city. This is not an automatic rule; a husband with a genuine disability, or one who has custody of the children, can also show hardship. The court weighs the distance, the travel involved, who has the children, the safety of the party and the stage of the case.

Distance alone within Delhi is a weaker ground than people expect. The metro has made most district complexes reachable within a couple of hours, and judges are aware of it. A petition that says only 'Rohini is far from my home in Sangam Vihar' may fail. One that adds that the wife has a two-year-old child, works fixed hours, has been followed and threatened outside the court complex, and that the husband's family lives next to the court, has a much better chance.

The strongest matrimonial transfer petitions are those for clubbing. Where the husband has filed for divorce in one district and the wife has filed maintenance, custody and Domestic Violence Act cases in another, both sides benefit from having all of them heard by one family court. Courts readily transfer in such cases, usually to the court where the first or the larger number of cases is pending, or to the court more convenient for the party with the children. Our guide on how to transfer a matrimonial case to another court walks through the paperwork.

Criminal cases: what counts as a reasonable apprehension of bias

Criminal transfers on the ground that a fair trial is impossible are taken very seriously, and granted sparingly. The test is not whether the accused or the complainant feels uncomfortable with the judge, but whether a reasonable person in that position would apprehend that justice will not be done. A judge rejecting bail, refusing adjournments or making stern remarks is not enough. Courts are also wary of transfer petitions filed to delay a trial that is near its end.

Grounds that have succeeded include the judge being related to or closely associated with a party, a judge expressing a concluded view on guilt before evidence is complete, clear hostility shown on the record, and a hostile local atmosphere that makes witnesses afraid to depose. Practical grounds also succeed: connected cases between the same parties being tried in different courts, a complainant and her witnesses living far away with no means to travel, or the need to try co-accused together.

Transfers are also used in 498A and dowry cases where the wife has moved to her parents' home in another part of Delhi, and the husband's family has filed counter-complaints. Where the criminal cases and the matrimonial cases are both in play, think about the whole picture before filing. A settlement can end both sets of cases; our page on quashing FIRs after settlement explains how the High Court deals with that.

Clubbing connected matrimonial cases in one court

A Delhi couple in a bitter separation often ends up with five or six cases: a divorce petition, a maintenance petition under Section 144 BNSS, a Domestic Violence Act complaint before a magistrate, a guardianship or custody petition, and a 498A FIR leading to a criminal trial. Several of these can be brought together. Divorce, custody, guardianship and maintenance cases in family courts can be transferred to a single family court under Section 24 CPC. The Domestic Violence Act case is heard by a magistrate, so moving it follows the route for magistrates' courts.

A criminal trial under the Bharatiya Nyaya Sanhita cannot be transferred to a family court, because a family court does not try offences. But connected criminal cases between the same parties can be brought before one magistrate where that makes sense, and the High Court can be asked to direct coordinated listing. When Advocate B.K. Singh is asked to file a transfer in a matrimonial dispute, he first draws up a single chart of every case pending between the parties, with court, stage and next date, because the right transfer petition often becomes obvious once everything is on one page.

Step by step: filing a transfer petition

1. List every pending case

   Write down each case with its court, case number, stage and next date. This tells you whether the transfer is within a district, between Delhi districts, or between states, and so which court to approach.

2. Apply to the right authority

   Within a district, apply to the Principal District and Sessions Judge or the Principal Judge of the family courts. For criminal cases within the same sessions division, this first application is required before the High Court can be approached under Section 447 BNSS.

3. Prepare the petition and affidavit

   The petition explains the facts, the grounds for transfer and the court to which you want the case sent. It is supported by an affidavit, and documents such as address proof, children's school records, medical records, threat complaints or certified copies of orders are attached.

4. File and seek interim stay if needed

   The petition is filed with an application to stay proceedings in the present court, where the case is at a stage at which something irreversible might happen. Stay is not automatic, and courts often allow the trial to continue up to a point.

5. Notice and reply

   The court issues notice to the other side and, in criminal cases, to the Public Prosecutor. The other side files a reply, usually opposing the transfer or suggesting a different court.

6. Hearing and order

   The court hears both sides, often briefly. It may allow the petition, reject it, or find a middle path such as permitting appearance by video conference or exempting a party from personal appearance.

7. Transmission of the file

   If the transfer is allowed, the record is sent to the new court, which fixes a date and notifies the parties. Track this closely; files sometimes take weeks to move.

Time and cost at each stage

Documents and details to gather

• Case numbers, courts and next dates of every case between the parties
• Certified copies or downloaded copies of the petition, FIR or complaint in each case
• Order sheets showing adjournments, interim orders and the present stage
• Proof of your residence and the distance and travel involved
• Children's birth certificates and school records if you have their care
• Medical records if illness or disability makes travel difficult
• Copies of complaints about threats or incidents outside court, with dates
• Proof of your employment hours or caregiving responsibilities
• Any order rejecting an earlier transfer application
• For criminal cases: the chargesheet and list of witnesses, with their addresses

Video conferencing: often an alternative to transfer

Since the courts moved to hybrid hearings, many transfer petitions are disposed of with a direction that the petitioner may appear by video conference or be exempted from personal appearance on dates when evidence is not being recorded. Delhi's family courts and many criminal courts now hear routine dates this way. For a party living far away, this often solves the problem faster than a transfer.

Video conferencing is not suitable for every stage. Mediation and counselling in matrimonial cases work better in person, and courts have been cautious about recording contested evidence remotely without consent. But if your real difficulty is attending frequent short dates, ask for this relief in the alternative. Our guide on how virtual hearings work explains the practical side.

If the other side has filed a transfer petition

Read the grounds carefully and answer each one with facts and documents. If the petition claims hardship in reaching the present court, point to the metro connections, the petitioner's own travel elsewhere, or the fact that the petitioner chose that court in the first place. If it alleges bias against the judge, check whether the allegation is specific and supported, or a general complaint about adverse orders.

You can also suggest a middle course. If the wife has a small child, a husband may offer to bear travel costs or agree to video conferencing for routine dates, which courts often prefer to a transfer. If the petition is clearly filed to delay a trial or to avoid an order already passed, say so, with dates. A frivolous criminal transfer application can lead to compensation being ordered to the opposite party under Section 447 BNSS.

Does the case stop while the transfer is pending?

Not automatically. Filing a transfer petition does not stay proceedings in the trial court unless the higher court orders a stay. In criminal cases under Section 447, the High Court can stay proceedings in the trial court while the petition is pending, and it often does where the ground is bias. In matrimonial cases, courts frequently allow the case to continue but direct that no final order be passed until the transfer petition is decided.

Do not stop attending the trial court just because you have filed for transfer. An absent party in a matrimonial case can be proceeded against ex parte, and an absent accused can face a non-bailable warrant. Keep appearing, or arranging exemption, until the higher court says otherwise.

Cases spread between Delhi and other states

Many couples in the National Capital Region end up with cases on both sides of a state border: a divorce petition in Gurugram, a 498A FIR in Delhi, a maintenance case in Ghaziabad. The Delhi High Court cannot move a Gurugram or Ghaziabad case into Delhi, or a Delhi case out of it. Only the Supreme Court can, and it does so most often in matrimonial cases to suit the wife.

In criminal cases, the place of trial is linked to where the offence occurred, so a transfer between states is harder to get. In practice, the Supreme Court in matrimonial transfer petitions often refers the parties to mediation, and a settlement reached there can end all the cases. For NRIs living abroad with cases in Delhi, see how NRIs can handle divorce cases in Delhi without travelling.

Mistakes that sink transfer petitions

• Going straight to the High Court for a transfer within one district. In criminal cases, the Sessions Judge must be approached first; a petition that skips this is returned.
• Alleging bias without facts. General statements that the judge is 'against me' or has 'passed adverse orders' do not succeed and can annoy the court.
• Filing at the last stage. A transfer sought when evidence is complete and final arguments are due is usually seen as an attempt to delay.
• Ignoring the child. In matrimonial transfers, who has the children often decides the outcome. Petitions that do not address it are weaker.
• Asking the Delhi High Court to move a case to Noida or Gurugram. It has no power to do so; only the Supreme Court can.
• Stopping attendance at the trial court. Until the case is transferred or stayed, the trial court can proceed against an absent party.

Allegations against a judge: handle with care

A transfer petition alleging bias puts a judicial officer's conduct in question, and the High Court usually calls for the trial judge's comments. If the allegations are exaggerated or unfounded, the petitioner loses credibility, and in serious cases may face proceedings for scandalising the court. The affidavit must state only what the deponent personally knows, with dates and documents.

Advocate B.K. Singh's advice in such cases is to rest the petition on the strongest objective ground available, such as connected cases or genuine hardship, and to put the bias allegation only if it is specific and can be supported from the order sheet or other record. A petition that wins on convenience is as good as one that wins on bias, and carries far less risk.

After the transfer order

Once the transfer is allowed, the old court sends the record to the new court, which notifies the parties of the next date. Keep a copy of the transfer order with you and check with the new court's filing section if no date has been notified within a few weeks. The case continues from where it stopped; witnesses already examined are not usually recalled.

If the transfer is refused, the order can be challenged only in limited ways. A refusal by the District or Sessions Judge can be brought before the High Court, and a refusal by the High Court can be taken to the Supreme Court by special leave petition, but such challenges rarely succeed unless the order is plainly wrong. Often the better course after a refusal is to ask the trial court for exemption from personal appearance or video conference access. For a wider review of interim orders passed by the trial court, see our page on criminal revision in the Delhi High Court or appeals against family court orders.

What to do this week

Make a list of every case between you and the other party, with the court, number, stage and next date. Note your reasons for wanting a transfer in plain words, and collect the documents that prove them: address proof, the children's records, medical papers, threat complaints. Check whether both courts are in the same district, different Delhi districts or different states, because that decides where to file. Keep attending every date in the present court until a transfer or stay is ordered.

If you want Advocate B.K. Singh to look at your case list and tell you whether a transfer petition, clubbing or video conferencing is the better course, or to keep you updated on changes in the law, contact Advocate B.K. Singh.