Electronic Evidence in Matrimonial Dispute

If you are reading this, there is a high chance that you or your dear ones are in matrimonial turmoil, and another easy guess would be that you or dear ones are acquainted and users of various technological advancements like the Internet, Smartphones, WhatsApp, Facebook, etc. Today, if there is a marital dispute, there would be some evidence available on electronic media and, in some cases, more evidence in electronic form than non-electronic form. So, it becomes essential for anyone wanting to use electronic evidence in a matrimonial dispute to understand how electronic evidence is appreciated in a court of law. The Laws across the world are laggards as far as utilizing electronic evidence is concerned. In fact, until very recently, the validity of electronic evidence was that of hearsay evidence, which meant that the courts could only rely on them partially. As per Stephen Mason in his book Electronic Evidence – Disclosure, Discovery and Admissibility, digital evidence ought to be subjected to a more rigorous mechanism that would typically be assigned with the document extant on physical media. For electronic evidence to be legally recognized, it needs to be

1. Admissible
2. Authentic
3. Complete
4. Reliable
5. Believable
6. Contemporaneous

The act applicable in India is the Indian Evidence Act of 1872, which has been suitably amended to include digital evidence since 2009.

Section 3: The definition of Evidence now stands as ” including electronic record,” which is critical for understanding how electronic Evidence is treated. After the definition of ”India”, the following have been inserted, namely, “Digital Signature”, “Digital Signature Certificate”, “electronic form”, “electronic records “information”, “secure electronic record”, “subscriber

Section 22A: Oral admissions as to the contents of electronic records are not relevant

Section 45A: Opinion of Examiner of Electronic record.

Section 65A and Section 65B: Admissibility of Electronic records

Section 88A: Presumption as to electronic messages Few common scenarios where a person unaware of the law may destroy or not utilize the electronic Evidence available:

Call Detail Records (CDRs): Any conversation on mobile between two people can be circumstantially proved basis CDRs and as per law governing Intermediaries providing these services, they have to keep these details with them for at least one year. These are not the call recordings but just the information on the call’s time, date, place, and duration. If you have to prove that your spouse spoke to you on a particular day and was in her parent’s parent’s house, this might be the golden arrow you were looking for. A good explanation by the Delhi High Court on using CDRs as evidence was given in Achchey Lal Yadav vs State on 4 September 2014.

Voice/Video recording: The best option is to keep the media in the original storage only for production in court. Otherwise, cyber forensics labs can provide you with a certificate for any copy you make of the original. That certificate may be produced along with the copy while you can keep the original safe. So, if you have a confession from your spouse and it’s recorded on your smartphone, please keep that phone safe and don’t delete those files or change their location. The hashtag values in the properties may change, making this critical evidence useless in a court of law. Excellent explanation of how the recorded conversation may be used as Evidence is found at

R. M. Malkani vs State Of Maharashtra on 22 September 1972. Equivalent citations: 1973 AIR 157, 1973 SCR (2) 417

Anvar P.V vs P.K.Basheer & Ors on 18 September 2014

Email/ Whatsapp/ Facebook messages: These are the trickiest to prove. Not only do you need the Internet provider to provide details that the messages originated from a particular IP, but you also need help from Google/Facebook to provide the IP of the sender and receiver of the messages. Though under the obligation of the court order, they will comply, as per section 88A of the Indian Evidence Act, the court shall not make any presumption as to the person by whom such message was sent. This is a primer and not an exhaustive commentary on electronic evidence, and the idea is to create awareness around the usage of electronic evidence in matrimonial disputes.